Andhra Pradesh High Court - Amravati
Smt.Kalidindi Nagalakshmi vs Union Of India on 14 September, 2023
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION No.44333 of 2018
Kalidindi Nagalakshmi, W/o Muralikrisham
Raju, aged 32 years, Occ: Housewife, R/o
D.No.3-100/1, Main Road, Oppostie High
School, Palakoderu Mandalam,
Srungavruksham, West Godavari District and
37 others.
... Petitioners
Versus
Union of India, Rep. by its Secretary, Ministry
of Road Transport and Highways, New Delhi
and three others.
... Respondents.
Counsel for the petitioners : Sri V.V. Satish
Counsel for respondent 1 : Assistant Solicitor General
Counsel for respondents 2 : S.S.Varma, learned standing
counsel
and 3
Counsel for respondent 4 : GP for Revenue
ORDER
This writ petition is filed to declare gazette notification, dated 03.01.2018 issued under Section 3(A) and gazette notification, dated 22.12.2018 issued under Section 3(D) of the National Highways Act, 1956 (for short 'the NH Act'), by respondent No.1 as illegal, arbitrary and contrary to the provisions of the NH Act.
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2. The averments, in brief, are that respondent No.1 issued notification dated 03.01.2018 in S.O.71(E) under Section 3(A)(1) of the NH Act, proposing to acquire land for the purpose of formation of bypass road to NH No.165 in the stretch of land from 61/740 kms to 107/660 kms, in the State of Andhra Pradesh. As per the notification, objections are to be filed before Additional Joint Collector, Eluru, within 21 days from the date of publication. Petitioners' lands, situated in Srugavruksham, Veeravasam, Sivadevnu Chikala, Ballipadu and Dagguluru, were also notified. The notification was published on 20.01.2018 in Telugu Daily Newspaper. On 07.02.2018 and 20.02.2018, petitioners submitted their objections before the competent authority by raising various objections. Among them one of the objections is that alignment was changed. The other objection is plans and maps were not displayed. Respondent No.4, having received objections, failed to conduct enquiry and passed orders. The authorities of National Highway inspected the lands of the petitioners and informed them about issuance of declaration. Questioning the action of respondents in proceeding for issuance of declaration, the above writ petition is filed. Page 3 of 20
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3. Counter affidavit was filed by Executive Engineer on behalf of respondent Nos.2 and 3. It was contended, inter alia, about issuance of notice under Section 3(A)(1) of the NH Act for building (widening two/four lane, etc.), maintenance, management and operation of NH 165 in the stretch of land from Km.61/740 to 107/660 in the State of Andhra Pradesh was published. The plans and other details covered under the notification were made available to the interested parties, in the office of CALA (competent authority). The consultant conducted a survey and set the boundaries of the approved alignment after notification under Section 3A of the NH Act. Stone marking was conducted as per the approved alignment in Srugavruksham, Veeravasam, Sivadevni Chikkala, Ballipadu and Dagguluru villages. DPR consultant, M/s. Infinite Civil Solutions Pvt. Ltd., Ahmedabad, proposed Bhimavaram-Veeravasaram bypass alignment for the villages, Vissakoderu, Goraganamudi, Pennada Agraharam, Srungavruksham and Veeravasaram in consultation with the department by adopting the standards and specifications as per IRC SP:73-2012. The alignment was approved by the competent authority vide letter No.RW/NH-12014/17/2016- AP (P-7) dated 13.02.2017 of the Ministry of Road Transport & Highways, Government of India (hereinafter referred to as Page 4 of 20 SRSJ WP No.44333 of 2018 'MoRTH'). There are four bypasses in the stretch from Km 61.740 to 107.660 i.e. 1) Akiveedu Bypass, 2) Undi Bypass, 3) Bhimavaram-Veeravasaram Bypass and 4) Ballipadu- Dagguluru Bypass. For each bypass, the road deviates from the existing road at one place, passes in green field and joins the existing road in another location. The total length of the Bhimavaram-Veeravasaram bypass is 17.450 Kms. The alignment crosses the existing road at only one location i.e. Km 92/300.
b) In response to the notification, objections were received from the public. After completion of 21 days, notices were issued to the objectors under Section 3-C of the Act, through Tahsildars concerned, to hear the grievances of the public/ryots/objectors in public hearing on 14.02.2018 at Palakollu Mandal. On 14.02.2018, in the public hearing conducted by the competent authority for land acquisition and Additional Joint Collector, West Godavari District, in Tahsildar's office along with Tahsildar Palakollu and Dy. Executive Engineer, NH Sub-Division, Bhimavaram, total 19 ryots/public were present for public hearing, at Palakollu Mandal. Further public hearing was conducted on 20.02.2018 at Veeravasaram Mandal and Palacoderu Mandal. Page 5 of 20
SRSJ WP No.44333 of 2018 In the public hearing conducted on 20.02.2018, 46 ryots/public and 55 ryots/public were present at Veeravasaram Mandal and Palacoderu Mandal, respectively. Thereafter, competent authority issued proceedings, dated 12.03.2018 stating that the objections/petitions filed under Section 3-C are disposed.
c) In 3A notification, only survey number and its extent will be notified. As per Section 3B of the NH Act, the consultant will conduct a survey and set out boundaries of the approved alignment after issuance of 3A notification. After the statutory period, 3D proposals will be prepared and notified in the Gazette.
d) M/s L & T Ramboli consulting Engineers Ltd., Chennai conducted survey for construction of bypass to Bhimavaram town on NH 214 (Kathipudi-Pamarru road) and submitted the alignment and the same was approved vide letter No. RW - NH - 12037 / 92 / 2001 / AP / P-7 (Pt) dated 08.05.2008 by MoRTH, New Delhi by making certain remarks regarding starting and ending points. Subsequently, M/s. Lion Engineering Consultants, Bhopal, who succeeded after termination of M/s L & T Ramboli consulting Engineers Ltd., Page 6 of 20 SRSJ WP No.44333 of 2018 Chennai, modified the alignment duly attending the said remarks.
e) The MoRTH, New Delhi approved Bhimavaram bypass alignment starting from the existing NH-214 of Kathipudi-Pamarru road at Km 151/800 (Existing Chainage Km 91/4) on the Northern side and merging at Km 164/400 (existing chainage Km 79.047) with approximate length of 12.70 Kms, which was proposed by M/s L & T Ramboli consulting Engineers Ltd., Chennai, vide letter dated 08.05.2008. MoRTH, New Delhi has approved Bhimavaram bypass alignment (option 10 C). The latest approved bypass for Bhimavaram town and previously approved alignment is one and the same.
f) The alignment, finalized and submitted for approval for Bhimavaram bypass covering Bhimavaram Town, Srungavruksham (V) and Veeravasaram (V), was reviewed during joint site visit with Shri A.K. Nagapal, Additional Director General, MoRTH, New Delhi, on 26.05.2018 and principally agreed for the alignment option 10C vide Lr.No.NH 165/61.000 to 107.600/(CE (NH) EE (NH)/DEE2/AEE 2 /2016 dated 27.06.2018 of the Engineer- in-Chief (R & B), NH & CRF, Vijayawada. The alignment 10A Page 7 of 20 SRSJ WP No.44333 of 2018 i.e. mini bypass is surrounded by dense habitation and the approved alignment i.e., 10C is located away from dense habitation. The Chief Engineer (R & B) & Superintending Engineer (R & B) NH Circle, Vijayawada vide letter dated 01.10.2018 stated that revised proposals for bypass to Bhimavaram town are submitted to the MoRTH , New Delhi. Later, the Ministry approved option 10C vide Lr.No.RW/NH/12014/17/2016-AP/P-7 dated 03.10.2018. Notification under 3(A) of Act, for recommended alignment, was approved and published in the gazette on 03.01.2018 and thereafter, draft 3D was submitted to the MoRTH, New Delhi for approval. The same was approved and published on 21.12.2018. Eventually, prayed to dismiss the writ petition as the same is not maintainable.
4. Heard Sri V.V. Satish, learned counsel for the petitioners, Sri C.V. Mohan Reddy, learned Senior Counsel representing learned Government Pleader for Roads and Buildings and learned Assistant Government Pleader for Land Acquisition.
5. Learned counsel for the petitioners would submit that notification issued under Section 3A of the NH Act was published in respect of Bhimavaram bypass 10C (petitioners' Page 8 of 20 SRSJ WP No.44333 of 2018 lands sought to be acquired) even before approval of the notification by MoRTH. He would also submit that after interim order was passed by this Court on 01.08.2018, declaration under Section 3D was published on 22.12.2018. He would submit that order under Section 3C was not communicated to the petitioners. He would also submit that the counter affidavit filed by Executive Engineer, R & B cannot be looked into in view of lack of competency.
6. Learned Senior Counsel, per contra, would contend that notification under Section 3A was issued as per the approval, in 2008, itself. He would also submit that a public hearing was conducted, and objections filed by the petitioners were considered. Section 3C orders were communicated to all the persons affected. He would also submit that Executive Engineer, NH Department (R & B), Government of Andhra Pradesh was appointed/authorized by Regional Officer, National Highways Administration, vide notification 50374
(e), to depose the affidavit. Hence, the authority is competent to depose to the counter affidavit. Thus, prayed to dismiss the writ petition.
7. The points for consideration are:
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SRSJ WP No.44333 of 2018 (1) Whether the notification issued under Section 3(A) of the N.H.Act in respect of Bhimavaram bypass i.e., option 10C, is after the approval of MoRTH? If not, the notification to the extent of option 10C is liable to set aside?
(2) Whether the objections of the petitioners were properly considered, and the orders are communicated?
If not, the notification in respect of petitioners' land is liable to be set aside?
8. It is an undisputed fact that notification under Section 3(A)1 of the NH Act was Gazetted on 03.01.2018 for widening of road from KM 61/740 to 107/660.
9. Lands of the petitioners are situated in (1) Srungavrusham (2) Veeravarasaram (3) Sivadevuni Chikkala (4) Ballipadu and Dagguluru villages. The lands of the petitioners are also notified under Section 3A(1) of the NH Act.
10. Pursuant to the notification petitioners submitted their objections within the time stipulated. In the objections it was contended that the maps/plans relating to the publication were not kept in the office of Joint Collector and alignment was changed. Land demarcated by planting stones is different from the land notified under Sec 3A(1) of the Act. Page 10 of 20
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11. While overruling the objections the competent authority in proceedings Roc No.12/AJC/NH-165/2018 dated 27.01.2018, observed that the Regional office, MoRTH, Vijayawada, vide letter dated 05.01.2018, has informed that the present alignment was approved by the Ministry for the subject project vide letter No. RW/NH-12014/172016-AP(P-7) dated 13.02.2017. Thus, according to competent authority, the alignment (i.e. 10C) was approved on 13.02.2017. Accordingly, notification under Sec 3A(1) of the NH Act was issued.
12. Proceedings dated 13.02.2017 filed along with the writ petition would disclose that the total extent of project was divided into two packages. Package 1 is from Pamarru 0/0000 KM to Allapadu 61/100 KM. Package 2 starts from Allapadu (KM 61/100 to Digamarru (KM 107/660).
13. In package 2, five bypass roads were proposed. As per the approved plan, the authority approved Option 10A i.e. Design Chainage from 80-440 KM to 94-960 KM, Bhimavaram Bypass, length 16-98 KM, on 13.02.2017. However, as per the notification under Section 3A(1) of the N.H.Act, lands situated in option 10C were notified. Option 10C was approved by the MoRTH on 03.10.2018. Page 11 of 20
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14. In respect of Bhimavaram Bypass initially three options were proposed as per Detailed Project Report i.e.,Option 10A, Option 10B and Option 10C.
15. The latter Lr.No.NH-165/61.000 to 107.600/CE(NH)EE (NH)/DEE2/AEE2/2016 dated 08.09.2018, addressed by Engineer-in Chief (R&B), National Highways & CRF, Vijayawada to the Additional Director General (Zone-III), New Delhi would manifest that Section 3(A) notifications are prepared and published in anticipation that approval of the alignment option 10C for Bhimavaram bypass will expire on 09.11.2018 and 02.01.2019 and hence, requested to accord approval for option 10-C for Bhimavaram Bypass. In the letter dated 08.09.2018, it was also mentioned that Ministry approved 10-A alignment option to Bhimavaram Bypass comprising length of 16-98 KM, on 13.02.2017.
16. After approval of option 10A, on receipt of many VIP references including Member of Parliament, Narsapuram and public representatives to modify approved alignment, the then Engineer-in-Chief (R&B), National Highways has inspected the site on 25.05.2017 and recommended the alignment option 10C which is in line with the originally approved alignment of Bhimavaram Bypass, in the year 2008. Page 12 of 20
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17. Thus, the letter dated 08.09.2018 would manifest that from the year 2008, the alignment in respect of Bhimavaram Bypass was being changed at the intervention of the local representatives. Finally, the notification under Section 3A (1) was Gazetted on 03.01.2018 in respect of option 10C without the approval of MoRTH.
18. It is pertinent to mention here that Executive Engineer (Zone-III), for DG (RD) & SS addressed letter dated 03.10.2018 to the Engineer-in-Chief (R&B) Vijayawada. It is very apt to extract the said letter.
"Sub:- Widening of two lane with paved shoulder/four lane from KM0/00 to 107/660 of Pamarru - Digamarru road of NH-165 in the State of Andhra Pradesh - Alignment approval - reg.
Sir, Please refer to your letter No.165/61.00 to 107/600/CE (NH)EE(NH)/DEE2/AEE2/2016 dated 27.06.18 submitting therewith modified alignment plan for Bhimavaram bypass in above sketch of NH-165 and subsequently submission of clarification vide your letter dated 08.09.2018 for Ministry's approval.
2. The proposal has been examined in the Ministry and modification proposed in earlier approved alignment vide Ministry letter dated 13.02.17 are accepted by competent authority as per the following details :Page 13 of 20
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1) Bhimavaram Bypass Option 10C as proposed by consultant and recommended by Engineer-in-Chief (R&B), NH & CRF, AP starting at KM 78.590 (Design ch 75/500) and merging at KM 95.450 ( Design ch. 92.950) having a length of 17-460 Kms in place of earlier approved option 10+10C
3. State PWD, however, is advised to exercise due diligence in submitting draft 3A/3D notification for land acquisition as per the approved alignment only to avoid legal complications."
19. Thus, the letter dated 03.10.2018 referred to supra would make the things more than discernable that even before the approval from the MoRTH, notification was issued under Section 3A(1) of the NH Act in respect of lands as per option 10C, when the approval by MoRTH was to option 10A.
20. Though the learned senior counsel would contend that notification under Section 3A(1) was issued as per the Ministry approval dated 08.05.2008, this court has not persuaded with the said submission since the approval option 10C was later changed and Ministry approved for option 10A on 13.02.2017. Even while overruling the objections, CALA cum JAC mentioned in the proceedings dated 12.03.2018 that the alignment was approved on 13.02.2017 and hence there is no change in the alignment. Page 14 of 20
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21. Section 3A(1) of National Highways Act relevant is extracted herewith:
Power to acquire land, etc.-(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. (Emphasis is mine).
22. A perusal of the definition makes it clear that the Central Government 'on being satisfied' may issue notification in the official gazette declaring its intention to acquire the land. The provisions of expropriatory legislation, which deprives a person of his right to property without his consent, must be strictly construed. In the case at hand, under the provisions of N.H.Act, the lands of petitioners were sought to be acquired by exercising power of eminent domain. Thus, the provisions of the N.H. Act, are to be construed strictly.
23. Affording of opportunity to persons whose lands are proposed for acquisition under NH Act, mandated by Section 3-C(1) is neither a ritual nor an empty formality. It is a salutary provision akin to the provisions of Section 5-A of the Land Acquisition Act, 1984.
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24. In State of Punjab v. Sodhi Sukhdev Singh1 it was held that an uncommunicated administrative order is inoperative. The same principle is being reiterated time and again. Section 3-C(2) mandates the competent authority to provide objector with an opportunity of being heard and thereafter to either allow or disallow the objections by an order. Since hearing of objections to the process of acquisition is a valuable right, the objector is entitled to for communication of an order passed by the competent authority either rejecting or accepting the objections and the reasons recorded therefor.
25. In Nandeshwar Prasad v. State of U.P.2, the Hon'ble Apex Court held as under:
"The limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. Therefore, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on 1 AIR 1961 SC 493 2 AIR 1964 SC 1217 Page 16 of 20 SRSJ WP No.44333 of 2018 record to support the same and bearing in mind the object of Section 5-A.
26. In the case on hand, as seen from the proceedings in Roc No.855/2017/A dated 22.12.2022, filed along with counter affidavit of respondent No.4, the order of rejection was not communicated to all the petitioners. Nothing is forthcoming from the record, as to when the order was dispatched.
27. Though, learned counsel for the petitioners argued regarding malafide exercise of power and arbitrariness on the part of the authority in notifying the lands of the petitioners, this Court is not going to those aspects, since this Court is prima-facie satisfied that the notification issued under Section 3A(1) of the N.H. Act, in respect of option 10-C Bhimavaram bypass, is without approval from MoRTH and also without communication of order under Section 3-C(1) of the NH Act.
28. The discussion made supra, makes it clear that notification under Section 3A(1) of the N.H. Act was Gazetted on 03.01.2018 and the declaration in respect of option 10C made on 03.10.2018 are liable to be set aside. In fact, in para 12 of the counter filed by the Executive Engineer, the Page 17 of 20 SRSJ WP No.44333 of 2018 authority also deposed that option 10C was approved on 03.10.2018.
29. This Court expresses its displeasure regarding the change of options from time to time at the intervention of public representatives. Since 2008, whenever the authorities are intending to proceed with one option, as per DPR, preferred by the authorities, at intervention of public representatives, the options kept on changing. NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways.
30. The projects involving construction of new High Ways, widening and the development of existing highways, which are vital for the development of infrastructure in the country, are entrusted to the experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of Nation highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view, the relative factors including intensity of heavy vehicular traffic and larger public interest. Page 18 of 20
SRSJ WP No.44333 of 2018 The courts are not at all equipped to decide upon the viability and feasibility of a particular project and whether the particular alignment would sub-serve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to malafides as observed by the Hon'ble Apex Court in Union of India v. Kushala Shetty3.
31. However, the case at hand, for the reasons best known, the NHAI kept on changing options at the intervention of the public representatives. Had the project started in the year 2008, by this time, it would have been completed. The authorities should not have deviated from DPR keeping in view in the cost escalation from 2008 to 2023.
32. Learned counsel appearing for the petitioner, during the arguments confined prayer only to Bhimavaram Bypass ie. Option 10C. Hence, this court is not going into other aspects which were pleaded and argued.
3 (2011) 12 SCC 69 Page 19 of 20 SRSJ WP No.44333 of 2018
33. In view of the discussion made supra, the notification under Section 3A(1) and Declaration under Section 3D of the Act, challenged in the writ petition are liable to be set aside, in respect of Option 10C, Bhimavaram bypass, since the notification under Section 3A of the NH Act, was published even before the satisfaction, sine qua non, for publishing the notification.
34. Accordingly, the Writ Petition is allowed to the extent indicated supra. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI Date: 14.09.2023 ikn Page 20 of 20 SRSJ WP No.44333 of 2018 IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI HONOURABLE SRI JUSTICE SUBBA REDDY SATTI WRIT PETITION No.44333 of 2018 Date : 14.09.2023 ikn