Madras High Court
S.Polappan vs The National Highways Authority on 26 June, 2007
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/06/2007 CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU WRIT PETITION (MD) No.11210 of 2006 and M.P.(MD) Nos.3 and 4 of 2006 and 1, 2, and 3 of 2007
1. S.Polappan
2. S.Ravidranathan
3. S.Ramaiah
4. Suganthi Anibai
5. Swammaban Selvaraj .. Petitioners vs.
1.The National Highways Authority, Rahmath Nagar (East), Tirunelveli - 11 Repesented by Project Officer & Deputy G.M.(Tech) and Others.
2.The Competent Authority under the National Highways Authority Act, Special District Revenue Officer (L.A./N.H), 299/1A, 2A, 3rd Middle Street, Thiagaraja Nagar, Tirunelveli - 11.
3.Tirunelveli Municipality Corporation, S.N.H.Road, Tirunelveli, rep. by its Commissioner. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records of the 1st respondent relating to notification dated 24.4.2006 as published in the Dinamalar, Tirunelveli Edition dated 10.6.2006 insofar as it relates to the acquiring of land in Vijayaragava Mudaliar Chatram Village, Tirunelveli District for widening National Highway 7 and quash the same and issue a direction to respondents 1 and 2 to lay National Highways 7 running North to South in Vijayaragava Mudaliar Chatram from the road over bridge in North to the Culvert in the South in a straight line without any deviation in such a way affecting the residential buildings of the petitioners.
!For petitioners .. Mr.T.S.R.Venkataramana ^For respondents .. Dr.R.Rajagopal, C.G.S.C for R1 and R2 Mr. M.Vallianayagam for R3
The petitioners are owning certain plots of land, which are sought to be acquired by the first respondent/National High Way Authority of India (for short "NHAI") for the purpose of extension of the National Highway No.7 coming within the stretch of Thirunelveli to Kanyakumari. The lands were situated in Vijayaragava Mudaliar Chatram Village (V.M.Chatram) in Palayamkottai Taluk, Thirunelveli District. The purpose for which the lands were acquired is for the purpose of putting up a bypass road.
2. According to the petitioner, the notification issued under Section 3- A(1)of the National Highways Act 48/1956 suffers from material irregularities and no scientific data has been collected for the purpose of ordering acquisition. If the road meridian is taken into account instead of acquiring lands on equi-distance on either side of the meridian. For some unexplained reasons on the western side certain extra lands are being acquired on the left side of North-South National Highway whereas on the eastern side, lands have been kept out. The petitioners' objection to the respondents had not been considered properly and even the revenue authorities have informed the "NHAI" that there were certain lands which are sought to be acquired are in excess of the original requirements. Therefore, a new survey should be undertaken. Under these circumstances, the petitioners have filed the present Writ Petition seeking for a prayer to set aside the notification dated 24.4.2006 published in "the Dinamalar" Tirunelveli Edition dated 10.6.2006 insofar as it relates to the acquisition of the petitioners' lands.
3. The notification, which is impugned in the Writ Petition is the notification issued under Section 3-A(i) of the NH Act and the purpose for which the acquisition has been made is for the purpose of widening the National Highway. The lands of the petitioners have been notified in the schedule. This was also further notified that an enquiry will be held before the Special District Revenue Officer, Tirunelveli. The petitioners have received notice from the said officer. The petitioners in between engaged a counsel to appear before the said authority and have been making continuous representations with reference to their objections. In the mean time, the authorities have notified the final notification and also rejected the objections raised by the petitioners. Therefore, the further grievance of the petitioners is that while rejecting the objections raised by the petitioners, the substance of their objections have not been taken into account.
4. In the mean time, the Writ Petition has been filed and also Interim Injunction was granted on 15.12.2006 for a period of four weeks. After the expiry of injunction granted by this Court and after getting legal opinion, the respondents have finalised the said report. In view of the same, the petitioners have filed a Contempt Petition against the respondent for violating the injunction order and the same is also pending.
5. Pending the Writ Petition, the petitioners have also taken an application to appoint a commissioner with a skilled engineer to assist the National Highway work in V.M.Chatram Sector from the road over bridge in North to the culvert in the South. Therefore, when the Vacate Injunction Petition filed by the "NHAI" came up for hearing, with a consent of both parties, the main Writ Petition itself was taken up for hearing.
6. Mr. T.S.R.Venkataramana, learned counsel for the petitioners submits that this Court instead of going to the details and rival contentions of the parties, must appoint an Expert for the purpose of assessing the actual requirements of the "NHAI" and arrive at a scientific conclusion so that unnecessary acquisition can be dropped and the petitioners' property may be saved. This Court is unable to consider the said request made by the learned Counsel on the simple ground that unless a prima facie case is made out, the question of appointing an Expert does not arise.
7. Dr.R.Rajagopal, learned counsel appearing for the "NHAI" stoutly opposed to the appointment of any Expert or Court Commissioner and also stated that enough expertise is available with the officials of the NHAI. Whenever a project is conceived and accepted, a Project Director is appointed and objections received from all quarters are considered in an objective manner.
8. The learned counsel also opposed the petitioners' relying on a survey conducted on their own and on the strength of the said Survey, certain plans have been produced before this Court to explain how the project executed by the "NHAI" was flawed and the Court must come to their rescue.
9. The first submission of the learned counsel for the petitioners was that when the "NHAI" sought to execute the project, the authorities should acquire a minimum extent of land on either side and it should not be an one side project. For this purpose, the learned counsel produced two or three plans to show that if road meridian is taken into account, there was no attempt on the part of the "NHAI" to acquire land on both sides to achieve 30 metres of land available on either side of the road meridian.
10. For the purpose of defining "meridian", the learned counsel wanted to rely upon Tamil Nadu National Highways Act wherein the term, "meridian" is defined. When it was pointed out that the present acquisition is based upon the Central Act where under no such definition has been rendered, the learned counsel, pleaded that a definition of any other legislation which are found in analogous legislations can be relied upon. But, however, Courts have held that one legislation cannot be telescoped into another legislation to find out a meaning of a word.
11. Be that as it may, it is not axiomatic that in every case of expansion, the authorities must decide the meridian and thereafter, acquire the lands equi-distance from the meridian. Such a project can be theoretically sound but when it comes to the acquisition of land, it is for the authorities to decide what kind of lands can be acquired and if such lands are available with the Government, what extent of extra land should be acquired from the private land owners. While making such calculations, there is bound to be deviation and even in cases where the land found one side is not conducive, lands found on the other side can be acquired. There is no hard and fast rule in acquisition of lands for such a project. As per the Central Act, the authorities have initiated action in terms of Section 3-A(i) of the NH Act and the right of the petitioners can only to have a procedural safeguards and they cannot dispute the very public purpose itself unless the public purpose does not exist in the eye of law.
12. Mr. T.V.S.Venkataramana, learned counsel for the petitioners fairly concedes that they have no dispute over the public purpose involved in the widening of the road. All that he has pointed out was that it should cause a minimum inconvenience and loss to the petitioners and if it is shown to their satisfaction that the project is sound and the plan has also been approved with necessary expertise, they have no grouse over the issue. He has also submitted that if the suggestion made by the petitioners are accepted, it will only bring a saving to the Highways so that the land of some other private owners need not be acquired. Such a contention cannot be gone into by this Court. Actually, plan cannot be made by this Court. If authorities consider while making expansion of the road, a particular alignment is necessary, the necessary consequence will be in achieving such alignment, certain lands of private owner is bound to be acquired. Further, the land owners are suitably compensated for the lands including superstructures if any and still if they feel that such compensation are not substantial, they can always approach the higher authorities provided under the Act for the enhancement of the compensation.
13. The Court by no stretch of imagination, in order to come to the rescue of the petitioners can order for change of alignment or make deviation from the plan conceived by the "NHAI".
14. The learned counsel for the petitioner further argued that he is not actually arguing for change of alignment but his grievance is that while alignment of the road is on two sides, the acquisition of the land on other side is not equidistant.
15. In all these matters, the paramount consideration is 'public interest' and that once public interest is accepted, certainly, private interests will have to give away to achieve the public interest.
16. In this context, a Division Bench of this Court, in its decision reported in (2007) 2 MLJ 384 (R.Kumar and Others v. State of Tamil Nadu, rep. by its Secretary to Government, Highways Department, Chennai and Others), to which, I am also a party, has held as follows:
"27. Learned senior counsel appearing for the appellants, thereafter submitted that de hors all the above illegalities allegedly done by the first respondent that the writ petitioners have not been shown equity and equal protection of law and they have taken sufficient steps to prevent the demolition of the building of the writ petitioners which had come into existence strictly in accordance with law and as per the road boundary statutorily fixed by the authorities and enforceable even today and they should have accommodated 3 to 4 feet in the existing building. This exercise as to whether the writ petitioners' building should be allowed to standby providing 3 to 4 feet in front of the said building, has already been done by the authorities more than once which was recorded by the learned Judge. In any event, as per the sketch shown by the State, it is not the appellants' building alone that had come under the acquisition. But hindrance of all the buildings are sought to be removed either partially or fully for the purpose of widening the OMR Road.
28. In a matter of this magnitude, where the State has undertaken a mega project in providing a Express Highway comprising of six lanes with a view to make infrastructure development to IT companies, public interest requires that such an activity should be allowed to proceed and cannot be stultified by the litigation indulged by the appellants, who have expressed their private interest in these appeals. The learned Senior Counsel appearing for the appellants fairly conceded that the power to acquire any land for public purpose is always available to the authorities and once the compensation is given, the power is complete and that is the correct legal position. In the present case, there is no deviation or violation of any procedure established by law and the appellants/writ petitioners cannot have any legal grievance."
17. When a similar contention was raised by a land owner relating to acquisition of lands in Trichirapalli by the very same authorities, this Court in W.P.No.38970 of 2004 by order dated 11.10.2006 followed the Judgment of the Division Bench cited supra and repelled the contention raised by the land owner in question.
18. Therefore, in the light of the decisions of the Division Bench, it is not open to the petitioner to contend that the alignment made by "NHAI' while acquiring the land of the petitioners were not in public interest and that the Court in order to obviate the difficulties of the petitioners must appoint an Expert Engineer to reassess the plan does not arise. Even though the original survey done by the authorities was faulted by the revenue officials, when it was brought to the notice of the District Collector, it was subsequently rectified. Even on that ground, the petitioners cannot have any grievance.
19. Dr.R.Rajagopal, learned counsel for "NHAI", in this context, submitted to this Court all the original files. This Court went through all the records and found that there has been no procedural violation in the issuance of Section 3-A notification and 3-D declaration and the objections raised by the petitioners have been considered objectively by the authorities of "NHAI".
20. This Court cannot say that the Project Director of the "NHAI" is a person, who is not having any technical expertise and the submission of the "NHAI" in the counter affidavit that they cannot make any deviation, which will have an adverse impact on the expansion of the highways cannot be brushed aside lightly. In the absence of any material irregularities committed by the respondents, this Court is unable to agree with the submissions made by the learned counsel for the petitioners. This Court is not inclined to appoint any such so-called Experts from outside so as to interfere with the original survey taken by the respondents especially in the context that NH-7 is not passing only through the petitioners' village but has a longer distance of thousands of kilometers. Therefore, it is upto the authorities to decide the right alignment considering the expansion that is to be made and the extent of land to be acquired. The rights of the petitioners are fully safeguarded by the payments of compensation amounts to be granted for the lands to be acquired and they can even seek for higher compensation from proper forums. Therefore, at the instance, project of such a magnitude cannot be stalled. Therefore, the Writ Petition will stand dismissed. Consequently, Interim order granted will stand vacated and the connected Miscellaneous Petitions are closed. However, there is no order as to costs.
asvm To Rahmath Nagar (East), Tirunelveli - 11.
2.The Competent Authority under the National Highways Authority Act, Special District Revenue Officer (L.A./N.H), 299/1A, 2A, 3rd Middle Street, Thiagaraja Nagar, Tirunelveli - 11.
3.The Commissioner.
Tirunelveli Municipality Corporation, S.N.H.Road, Tirunelveli.