Karnataka High Court
Sri Ranganathan N vs The State Of Karnataka on 6 March, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 24480 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 24480 OF 2021 (LA-RES)
BETWEEN:
1. SRI RANGANATHAN N
DEAD BY LRS
1A. RAJALAXMAMMA
W/O RANGANATHAN N
AGED ABOUT 75 YEARS
#634, AHIMSA MARGA SIDDARTHANAGAR
MYSURU - 570 011.
1B. HARISH R
S/O RANGANATHAN
AGED ABOUT 55 YEARS
#634, 9A CROSS SIDDARTHANAGAR
MYSUR - 570 01.
Digitally
signed by
NARASIMHA
MURTHY
VANAMALA 1C. SUMANNA R
Location:
HIGH C/O RANGANATHAN
COURT OF
KARNATAKA
AGED ABOUT 53 YEARS
R/O NO. 929/12-12, 2NDSTAGE
INDIRA NAGARA
OPP. RAILWAY STATION KADOKOKOLA
MYSURU - 571 311.
1D. ROOPA R
D/O RANGANATHAN
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WP No. 24480 of 2021
AGED ABOUT 55 YEARS
R/O NO. 1227/1,3 MAIN
8TH CROSS, VIVEKANANDA NAGARA
MYSURU -570 0023.
2. CHINNAPAIAH N
S/O LATE SRI C NAGESHWARAIAH
AGED 80 YEARS
3. SRI N BALARAJU
S/O LT SRI C NAGESHWARAIAH
AGED 71 YEARS
4. SRI N UMASHANKAR
S/O LATE SRI C NAGESHWARAIAH
AGED 65 YEARS
PETITIONERS NO.1 TO 4 ARE
REP BY THEIR GPA HOLDER
N RAVINDRANATH
S/O LT SRI C NAGESHWARAIAH
AGED 65 YEARS
R/O POST OFFICE STREET
MADHUVANAHALLI VILLAGE
KOLLEGALA TQ 571440
CHAMRAJNAGAR DIST.
5. SRI N MAHADEVAN
S/O LT SRI NANJASHETTY
AGED 76 YEARS
R/O MASANA SHETTY STREET
MADHUVANAHALLI VILLGE
KOLLEGALA TQ 571440
CHAMARAJANAGAR DIST
6. RAJAMMA
W/O N MAHADEVAN
AGED 67 YEARS
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WP No. 24480 of 2021
R/O MASANA SHETTY STREET
MADHUVANAHALLI VILLGE
KOLLEGALA TQ - 571440
CHAMARAJANAGAR DIST.
7. NIRMALA C
W/O LT A NATARAJU
AGED 66 YEARS
R/O MASANA SHETTY STREET
MADHUVANAHALLI VILLGE
KOLLEGALA TQ - 571440
CHAMARAJANAGAR DIST.
8. SRI G ARASA SHETTY
S/O LT SRI M GURUNANAJA SETTY
AGED 82 YEARS
R/O MASANA SHETTY STREET
MADHUVANAHALLI VILLGE
KOLLEGALA TQ - 571440
CHAMARAJANAGAR DIST.
9. SRI N SIDDAPPA SETTY
S/O LATE SRI NAGA SETTY
AGED 62 YEARS
R/O CHIKKA DEVASTHANA STREET
MADHUVANAHALLI VILLAGE
KOLLEGALA TQ 571440
CHAMARAJANAGAR DIST.
10. A NANDEESH
S/O C ASHOK KUMAR
MAJOR
R/O MAIN ROAD
MADHUVANAHALI VILLAGE
KOLLEGALA TQ 571440
CHAMARAJANAGAR DIST.
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WP No. 24480 of 2021
11. SAROJAMMA M
W/O LATE SRI M NAGASUNDARAPPA
AGED 79 YEARS
R/O NO 7/476 A
4THCROSS,SOUTHERN EXTN
KOLLEGALA TOWN 571440
CHAMARAJANGAR DIST.
12. SMT S RAJESHWARI
W/O LT SRI RAJENDRA PRASAD
AGED 55 YEARS
R/O D NO 269, 1ST FLOOR
8TH MAIN ROAD, 6TH CROSS
RPC LAYOUT, HAMPI NAGAR
VIJAYANAGARA, BENGALURU 560034.
13. SMT. UMADEVI
D/O LATE SRI. B.M. MAHADEVAPPA
AGED ABOUT 66 YEARS
REP BY HER LEAGAL GUARDIAN HER BROTHER
SRI. SIDDALINGA SWAMY M
S/O LATE SRI. B.M. MAHADEVAPPA
AGED ABOUT 62 YEARS
R/O D. NO. 673, RENUKA NILAYA
22ND A CROSS, 18TH MAIN
BSK II STAGE, BENGALURU - 560 0070.
...PETITIONERS
(BY SRI. ONKARA K B.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY PRINCIPAL SECRETARY
DEPT OF PUBLIC WORKS
PORTS AND INLAND WATER TRANSPORT
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WP No. 24480 of 2021
VIDHANA SOUDHA
BANGALORE 560001.
2. THE CHIEF EXECUTIVE ENGINEER AND
PROJECT DIRECTOR
PROJECT IMPLEMENTATION UNIT
KARNATAKA STATE HIGHWAY
IMPROVEMENT PROJECT
(KSHIP) PWD COMPELX BUILDING
K R CIRCLE, BANGALORE.
4. ASSISTANT EXECUTIVE ENGINEER
KSHIP SUB DIVISON
KOLLEGALA 571440
CHAMARAJANAGAR DIST.
5. THE ASSISTANT COMMISSIONER
THE LAND ACQUISTION OFFICER
KOLLEGALA SUB DIVISION
KOLLEGALA 571440
CHAMARAJANAGARA DIST.
...RESPONDENTS
(BY SMT.LEENA C SHIVAPURMATH., HCGP FOR R1;
SRI. GANAPATHY HEGDE, SENIOR ADVOCATE FOR
SRI. P.K. SHRIKARA, ADVOCATE FOR R2 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TOQUASH THE NOTIFICATION VIDE DATED
05.04.2021 AS PR ANNEXURE-H ISSUED BY THE
RESPONDENT NO.1 IN SO FAR AS IT PERTAINS TO THE
PETITIONERS ARE CONCERNED IN SY NO.583/1 INTO
SHOWN IN ANNEXURE-H AT SL NO.15.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 24480 of 2021
ORDER
The petitioners are the owners of land in Sy.Nos.232, 233, 229/A, 235/A, 235/B, and 224/1 of Madhuvanahalli village, Palya Hobli, Kollegal Taluk, Chamarajanagar District [for easy reference, these lands are hereafter together referred to as the 'subject properties'], and the petitioners have impugned the notification dated 05.04.2021 [Annexure-H] issued under the provisions of Section 15 of the Karnataka State Highways Act, 1964 [for short, 'the Highways Act'] insofar as the subject properties.
2. The circumstances preceding the issuance of the impugned notification dated 05.04.2021 are that on 07.06.2017, the second respondent has issued a public notification stating that the Government has accorded its approval for purchase of lands required for the purposes of developing State Highway No.79 [between Kollegal and Hanur] over a -7- WP No. 24480 of 2021 distance of 23.800 kms under KSHIP-3 Project Package - 1A and the lands mentioned in the schedule appended to the public notification would be necessary for such purpose. The subject properties are mentioned in this public notification.
3. Thereafter, the petitioners are issued with the notice dated 09.06.2017 informing that the necessary proceedings will be conducted on 22.06.2017 at 10am in the morning to ascertain the extents as also the owner of the lands abutting the State Highway and that there is necessary approval for compulsory acquisition of the lands for the aforesaid purpose under Section 15 of the Highways Act. Admittedly, this notice, though dated 09.06.2017, is served on the petitioners' representatives only on 22.06.2017 at 6.50 pm.
4. On 09.11.2017, a public meeting is held under the chairmanship of the Deputy Commissioner, Chamarajanagar District for fixing the -8- WP No. 24480 of 2021 price in the event there is a voluntary sale of the land required for the purposes of the project. The proceedings recorded the details of participation, and for the present purposes the following two paragraphs would be crucial inasmuch as there is reference to the measures taken to identify the lands that are required for acquisition and the participation by the power of attorney of the first to forth petitioners:
" ೊ ೇ ಾಲ, ಹನೂರು, ರ ೆ ಅ ವೃ
ೕಜ ೆಯ ೊ ೇ ಾಲ ನಗರದ ಗr ಂದ CUÀæ!ಾರ,
ಮಧುವನಹ$ ಮತು &ದ'ಯ(ನಪ*ರ, ಈ ಾ,ಮಗಳ ಹ.ರ
ಒಂದು ಕ1ೆ ಮತು ¹AzÁ£À®ÆègÀÄ, ಾ,ಮದ ಬ$ ಒಂದು ಕ1ೆ 3ೈ5ಾ6 ರ ೆ ಆಗುತ8ೆ. ಉ$ದ ಕ1ೆ ಈ:ರುವ gÀ¸ÉÛAiÀÄ£ÀÄß ಅಗ ೕಕ;&, ಅ ವೃ ಪ<ಸ>ಾಗು.ದು' ಆಗ ೕಕರಣ ೆ@ ಅಲA ಪ,Bಾಣದ ಭೂ ಾDEೕನಪrಸ>ಾಗು.ದ. ಈ ೕಜ ೆ ೆ ಒಟುG 23 H.I. ಅಂತರದ ಒಟುG 66 ಏಕKೆ 73 ೆಂLM Bಾತ, ಭೂ ಾDEೕನNಾಗುwÛzÉ. ೕಜ ೆ ೆ ಅಗತ(Oರುವ ಜIೕPನ O&ೕtð 100 JPÀgÉ I.ಯ ಒಳ ೆ ಬರುವ*ದ;ಂದ 5ಾರದಶRಕ ;ೕSಾ( ವ(ವಹ;& ಆಗತ(Oರುವ ಜIೕನನುT Kೈತ;ಂದ ೇರNಾ: ಖ;ೕ ಸಲು ಸ ಾRರ ಅವ ಾಶ ಕ A&ರುತ8ೆ, ಆದುದ;ಂದ F AiÉÆÃd ೆಯ<, ರ ೆ ೆ ಅಗತ(Oರುವ ಜIೕನನುT Kೈತರ ಒVA ೆ ಪ1ೆದು ಖ;ೕ ಸ>ಾಗು.ದು' ಈ §UÉÎ ಸWೆಯ !ಾಜ;ರುವ Kೈತರು -9- WP No. 24480 of 2021 ಅ 5ಾ,ಯ .$ಸುವಂSೆ ೋ;ದರು. ಸWೆಯ !ಾಜ;ದ' ೆಲವರು ತಮX ಅ 5ಾ,ಯ ವ(ಕ ಪ<&ರುSಾKೆ,' Yದ ೆ &ಂUÁ£Àಲೂರು, ಕು ಾ,ಮದ Z,ೕ ಕುBಾರ ಾDI ಎಂಬುವರು Bಾತ ಾ< ¹AUÁ£À®ÆègÀÄ UÁæªÀÄzÀ §½ ºÁ° EgÀĪÀ gÀ¸ÉÛAiÀÄ£ÀÄß CUÀ°ÃPÀj¸ÀzÉ 3ೈ5ಾ6 ರ ೆ, Bಾಡು.ರುವ O]ತ(ವನುT, ಪ,^ೆT Bಾ<ದಲ8ೆ ಈ:ರುವ ರ ೆ ಪಕ@ದ ಐ.!ಾ&ಕ ªÀĺÀvÀé«gÀĪÀ Z,ೕ ಮ>ೈ ಮಹ8ೇಶDರ 8ೇವ ಾ`ನOದು', 3ೆಟG ೆ@ !ೋಗುವ ಭಕರು ಸದ; 8ೇವ ಾ`ನ ೆ@ ಬಂದು ಪabೆ ಸ & ಮುಂ8ೆ !ೋಗು.ರುವ*ದ;ಂದ CzÉà gÀ¸ÉÛ CUÀ°ÃPÀjಸುವಂSೆ Oನಂ.& ೊಂ<ರುSಾKೆ. ಈ ಬ ೆc ಸ¨sÁದ(dರು ಸWೆಯ !ಾಜ;zÀÄÝ J¯ï.J.¦ vÀAiÀiÁj¹gÀĪÀ ಐ.&.e, Sಾಂ.,ಕ ಅE ಾ;ಗಳನುT ಪ,ZT&ದು', Sಾಂ.,ಕ ದೃfG ಂದ ¨ÉÊ¥Á¸ï gÀ¸ÉÛ ªÀiÁqÀ¯ÁUÀÄwÛzÀÄÝ F AiÉÆÃd£É PÉÊ©qÀĪÀÅzÀÄ ¸ÀªÀÄAd¸ÀªÀ®èªÉAzÀÄ ¸À¨sÁzsÀåPÀëjUÉ ªÀÄvÀÄÛ ಆhೇಪiೆ ಾರKಾದ Z,ೕ ಕುBಾರ ಾDIಯವ; ೆ ªÀÄ£ÀªÀjPÉ ªÀiÁrgÀÄvÁÛgÉ.
xxx
"ರ ೆ ಅ ವೃ ಾ: ೇರ ಖ;ೕ ಮೂಲಕ
ಭೂ ಾDEೕನ ಪ<& ೊಳj ವ ಜIೕನುಗ$ ೆ 3ೆ>ೆ
PಗEಪ<ಸುವ Okಾರದ Kೈತರು/ಭೂ 5ಾ>ೊcಂಡು ತಮX
ಅನುBಾನಗಳನುT ಪ;ಹ;& ೊಂ<ದು' ಹಲNಾರು ಮ೦ ಸWೆಯ mೕ n>ಾE ಾ;ಗಳವ; ೆ O ಾ&&, ಒVA ೆ ಪತ, Pೕ<ರುSಾKೆ. ಆದುದ;ಂದ oೕಲ@ಂಡಂSೆ ಪ;!ಾರ PಗEಪ<& ಅEಸೂಚ ೆ !ೊರ<ಸಲು ಮತು PಯBಾನು ಾರ ಕ,ಮವqಸಲು ಸNಾRನುಮತ ಂದ PಣR ಸ>ಾಯು."
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WP No. 24480 of 2021After this meeting, the impugned notification dated 05.04.2021 is issued under Section 15 of the Highways Act. In the meanwhile, on behalf of the petitioners, an application is also filed for changing the pathway of the proposed bypass as part of the development of the aforesaid State Highway between Kollegal to Hanur. The development of the road, including the construction of a substantial part of the bypass, is almost complete1.
5. Sri Onkara K.B., learned counsel for the petitioners urges three grounds in support of the petitioners' challenge to the acquisition proceedings and these three grounds are as follows:
5.1 The acquisition under Section 15 of the Highways Act must necessarily be preceded by a survey as contemplated under Section 14. The notice dated 09.06.2017 purportedly under Section 16 of 1 A google image is produced, and it is referred to in the course of this order.
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WP No. 24480 of 2021the Highways Act is issued to the petitioners informing them that the necessary proceedings for identification and demarcation would be held on 22.06.2017 at 11.00 am. The petitioners are served with the notice on the same day [22.06.2017] but after sunset at 6.50pm. The provisions of Section 14 of the Highways Act are mandatory, and because it cannot be disputed that these mandatory provisions have not been complied with, the acquisition of the subject properties must fail.
5.2 The Highways Act, 1964 is promulgated to provide for restricted ribbon development along the highways and for maintenance and development of highways. A 'highway' is defined under Section 2(i) of the Act and it means any road or way over which the public have a right of way or are granted access and which is declared to be a highway under Section 3 with the stipulation that this expression includes land acquired or demarcated for construction of a
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WP No. 24480 of 2021highway along such road, the slopes, berms, burrow- pits, foot-paths, pavements, bridges, culverts, carriageways as also trees, fences, posts, boundaries. The State under Section 3 of the Highways Act could notify any road as [i] a State Highway [ii] a Special State Highway [iii] a Major District Road [iv] other District Road or [v] a Village Road. Upon issuance of such notification, under Section 7 of Highways Act the State must fix the building lines and control lines and ensure necessary maps are drawn and maintained as contained in Section 8 of the Highways Act.
5.3 The subject properties are notified for construction of a Bypass from Maduvanahalli Village edge to Agrahara Village edge. This proposed path is not notified either as State Highway [Special] or State Highway or even as a Major District or a District Road. If it is not so notified, the jurisdiction under Section 15 of the Highways Act cannot be exercised
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WP No. 24480 of 2021to acquire land for development. The notification under section 15 thereof could be only for acquisition of lands along a highway but not lands away from the highway.
5.4 The notification dated 07.06.2017 [the first notification of the intent to develop the Bypass Road] is issued notifying that a total extent of 23.800 kms is required for the development of Road and the impugned notification dated 05.04.2021 is issued for smaller extents, but there is a substantial change insofar as the petitioners' lands. If in the notification dated 07.06.2017 certain extents are shown as needed for development, in the impugned notification dated 05.04.2021 more than four-five times of such extents are notified. The details as furnished in paragraph-19 of the writ petition is relied upon. These details read as under:
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WP No. 24480 of 2021
Sl. Name of the Sy No Extent of Extent of
No Petitioners land as per land as
2017 per 2021
Notification Notificatio
(In Cents) n (In
Cents)
1 Sri Ranganathan 583 16.00 96.00
N & brothers
2 Smt. Rajamma 232 20.75 80.00
233 12.00 48.00
3 Smt. Nirmala C. 229/A 24.75 62.00
235/A 00.25 32.00
235/B 02.75 28.00
4 Sri G. Arasa 224/1 04.25 30.00
Shetty
5 Sri N. Siddappa 1.75.00 43.00
Setty
6 Sri. Siddalinga 0.50.00 31.00
Swamy
6. Sri Ganapathy Hegde, the learned Senior Counsel for the respondents, refutes these submissions relying upon the following:
6.1 The petitioners cannot contend that there is any substantial change in the total extent mentioned in the first notification dated 07.06.2017 and the total extent notified in the impugned
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WP No. 24480 of 2021notification dated 05.04.2021. There are indeed differences in the extents notified in certain survey number under these two notifications, but the difference is not confined just to the petitioners' lands but is across a number of survey numbers notified for acquisition.
6.2 This change in the extents is necessitated on two counts. Firstly, because there was an inadvertent error in mentioning the extents when notification dated 07.06.2017 was issued and secondly, because the Experts, while showing the alignment in the report submitted as of that date, had overlooked the existence of a water body, and upon noticing this error the Experts have provided necessary realignment. The changes are only consequent to this and there is nothing arbitrary in notifying the extents as mentioned in the impugned notification dated 05.04.2021.
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WP No. 24480 of 20216.3 The petitioners are not aggrieved by the improvement along the entire 23.800 Km stretch and their grievance is only with regard to the construction of a bypass from Madhuvanahalli border to Agrahara border. The petitioners' grievance that the path for the proposed bypass is not notified under Section 3 of the Highways Act with completion of due process under Sections 7 and 8 of the Highways Act must necessarily be considered in the light of the fact that the notification is for development of State Highway No.79 which runs through Madhuvanahalli village to Kollegal, and the proposal is to connect this highway with National Highway No.209 avoiding passing through Kollegal town.
6.4 There need not be a separate notification under Section 3 of the Highways Act for construction of a bypass to connect a State Highway either with another State Highway or a National Highway. The provisions of Section 3 of the Highways Act must be
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WP No. 24480 of 2021read in a manner that is purposive and cannot be restricted by a narrow reading to defeat the objective thereof.
6.5 The respondents cannot dispute that the notice dated 09.06.2017 is not served on the petitioners well in time of the proposed proceedings for the purpose of identifying the boundary line, the required area and their ownership, but the petitioners cannot dispute that their power of attorney did indeed participate in the meeting dated 09.11.2017. In this meeting the measures taken to identify the extents were explained while also explaining the advantage of the construction of a bypass as proposed. In fact, the details as regards the advantages of the developing bypass are furnished in response to a query filed by the petitioners' representative under the provisions of the Right of Information Act, 2005.
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WP No. 24480 of 20216.6 The participation by the petitioners' representation in the meeting demonstrates that there was due communication of the due details before the issuance of the impugned notification dated 05.04.2021. In any event, the acquisition cannot be struck down on the ground that there is a technical failure to comply with the requirements of Section 14 of the Highways Act as it is settled law that even if is shown that all the statutory requirements have not been completely followed, the acquisition need not be set aside, and appropriate relief could be granted to the petitioners. This is the proposition in the decision of the Hon'ble Supreme Court in Competent Authority v. Barangore Jute Factory, (2005) 13 SCC 477.
7. In the light of the rival submissions, the questions for consideration would be:
[a] Whether the second respondent could have assumed jurisdiction under
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Section 15 of the Highways Act to acquire the subject properties and other lands for construction of 'Madhuvanahalli and Kollegal Bypass' to connect State Highway No.79 with National Highway No.209.
[b] Whether this Court must interfere with the impugned notification as regards the petitioners' lands [the subject properties] either because it can be said that the respondents have not complied with the requirements of Section 14 of the Highways Act or that there is arbitrariness in the issuance of the impugned notification.
8. The impugned notification dated 05.04.2021 is issued for the development of a stretch of 23.800 Kms of the State Highway No. 79 with widening of the existing carriageway and construction of a bypass from the edge of Madhuvanahalli Village to National Highway No.209 at Agrahara village. This decision is based on the Experts' Reports, and the Expert's
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WP No. 24480 of 2021opinion have inter alia opined that the construction of the bypass as proposed would be the best option in terms of time and cost, and this would ensure smoother traffic flow avoiding difficulties of passing through a city. The Expert's Reports are placed on record, and the contents of these reports are not contested.
9. A 'highway' is defined under Section 2(i)2of the Highways Act to mean any road or way over which the public have right of way, or they have been granted access and which is declared to be a highway 2 "highway" means any road or way over which the public have a right of way or are granted access and which is declared to be a highway under section 3. The expression includes: --
(i) any land acquired or demarcated with a view to construct a highway along it;
(ii) the slopes, berms, burrow-pits, foot-paths, pavements and side, catch and boundary drains attached to such a road or way;
(iii) all bridges, culverts, causeways, carriageways and other structures built on or across such road or way;
and
(iv) the trees, fences, posts, boundary, half kilometre and kilometre stones and other highway accessories and materials and materials stacked on the road or way;
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WP No. 24480 of 2021under Section 3 of the Act. This definition further mentions that any land acquired or demarcated with a view to construct a highway would also come within the fold of a highway as would the slopes, berms, burrow-pits, foot-paths, pavements, ridges, culverts, carriageways as also trees, fences, posts, boundaries. There is no dispute that the State Highway No.79 would be a highway as defined under Section 2(i) because notification under Section 3 of the Highways Act is issued in the year 2017.
10. The provisions of Section 15 of the Highways Act enable acquisition of any land or interest of a person in any land required for the purposes of a highway if the government is satisfied in that regard, and Section 15 of the Highways Act reads as follows:
"15. Acquisition of land or right or interest in land: If at any time on the application of the Highway Authority, the State Government is satisfied that any land
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required for the purposes of a highway or any right or interest of any person in any land required for the said purposes should be compulsorily acquired or extinguished, as the case may be, it shall be lawful for the State Government to publish a notification to that effect in the official Gazette. Such notification shall also be published in such other manner as may be prescribed. A notification so published shall be deemed to be the declaration that the land is needed or, as the case may be the right or interest is required to be extinguished for the purposes of the highway, and such declaration shall be conclusive that the land is so needed, or the right or interest is so required to be extinguished."
If the jurisdiction under Section 15 of the Highways Act is to be exercised, the State Government must be satisfied that a land is required for the purposes of a highway or the rights of a person in such land must be extinguished for the purposes of a highway. If either of these two conditions is satisfied, the State Government, on an application by the Highway
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WP No. 24480 of 2021Authority, could assume jurisdiction to acquire such lands.
11. If the proposed development of the highway is to ensure a highway with smooth flow of traffic, and the lands required for such development could be acquired under this Act for widening of an existing carriageway [a highway], would the acquisition of lands for the purpose of constructing a bypass to connect this highway to another highway to avoid going through a city, and thus avoiding traffic snarls be impermissible under this Act. The significant expression in Section 15 of the Highways Act is for the purposes of a highway, and the definition of a highway is wide and inclusive. The construction of a bypass would be for the purpose of a highway, and it cannot be read reasonably otherwise.
12. This Court, upon reading the provisions of Section 2(i) and 15 of the Highways Act, cannot opine that the acquisition under this Act must be confined
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WP No. 24480 of 2021to just acquisition of lands in one linear trajectory along a highway, and lands cannot be acquired under this Act for the purposes of constructing a bypass. This Court must also consider that, under Section 15 of the Act, if in the opinion of the Government the purpose of a highway is better served with the construction of a bypass, and if this Court were to opine that the acquisition of lands under the Highways Act must be confined to just along the exiting carriage way [a highway], it would then mean that two separate notifications will have to be issued; one under the provisions of the said Highways Act and the other under another enactment.
13. This Court must also observe that it cannot be gainsaid that the provisions of the land acquisition enactments must receive such interpretation which advances the object of the enactments, and that one of the crucial tests to sustain a notification for acquisition of particular
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WP No. 24480 of 2021lands is to know whether there is a reasonable nexus between the purpose of notification and the reason for acquiring those particular properties.
14. The interpretation that the acquisition of lands under the Highways Act must be confined to just along the exiting carriage way [a highway] would be reading the unambiguous provisions contrivedly to bring in an incongruous consequence, and such interpretation would defeat the very purpose of the Act. The Expert's opinion on constriction of the bypass through the subject properties remains undisputed. As such, this Court must conclude that acquisition of lands under the Highways Act could also be for the purposes of construction of a bypass, especially when development of a highway is being undertaken with necessary expansion of the highway and other improvements. The first question is answered in favor of the respondents.
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WP No. 24480 of 2021
15. A public notification is issued on 07.06.2017 for voluntary transfer of lands for the purposes of widening of the highway and the proposed improvement, including the construction of a bypass as discussed above, and simultaneously i.e., on 09.06.2017 proceedings under Section 143 of the Highways Act, which contemplates amongst others survey and demarcation for the purposes of the Act, are commenced. After the necessary proceedings as contemplated under Section 14 are completed on 22.06.2017, the finer details are further worked out in consultation with the experts, and as a consequence the impugned notification is issued on 05.04.2021 with certain modifications.
16. Further, the notice of the proceedings under Section 14 of the Highways Act is served on the petitioners after the proceedings are completed. 3 The notice dated 09.06.2017 mentions section 16 of the Highways Act, but given the provisions of this Section, it must be construed as being under Section 14.
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WP No. 24480 of 2021Therefore, it is contended on behalf of the petitioners that the jurisdiction under Section 15 of the Highways Act is exercised arbitrarily. The respondents, without disputing that there are changes in the details as mentioned in the public notice dated 07.06.2017 and the impugned final notification dated 05.04.2021, contend that there are certain inadvertent errors in mentioning the survey numbers in the public notice, and these errors are because the existence of a certain water body was not noticed while drawing the superimpositions to decide on the pathway for the proposed bypass.
17. The respondents also contend that these errors were noticed only when a joint measurement exercise is undertaken along with the consultants for Joint Measurement Certificate [JMC] after the completion of the work as contemplated under Section 14 of the Highways Act. However, the subject properties are mentioned in the public notice dated
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WP No. 24480 of 202107.06.2017 but the extents as mentioned are changed in the impugned notification dated 05.04.2021. The reasons for this change are reasonably explained.
18. This Court, in the nature of preparatory work undertaken with the involvement of experts and multiple surveys until the date of notification, cannot opine that a minor modification in the proposal published at the first instance would be fatal to the notification issued under Section 15 of the Highways Act. This Court cannot interfere on the ground of arbitrariness when it is shown that as of the date of the notification under Section 15 of the Highways Act, the details are sufficiently worked out. As such the petitioners cannot succeed on this ground as well.
19. There is force in the petitioners' contention that they have not been issued with due notice of the
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WP No. 24480 of 2021work as contemplated under section 14 of the Highways Act in the light of the admitted fact that the notice dated 09.06.2017 is served much after the time when the proceedings under this section are scheduled to begin. The learned counsel for the petitioners, relying upon the reading of proviso to Section 14 of the Highways Act, submits that the notice of the proceedings under Section 14 is a mandatory requirement and if it is a mandatory requirement, the petitioners must succeed because admittedly this mandatory requirement is not complied with.
20. The provisions of section 14 of the Highways Act with the proviso reads as follows:
"14. Powers of Highway Authority and officers and servants appointed under section 6 in respect of surveys: For the purpose of carrying out any of the provisions of this Act, the Highway Authority and the officers and servants appointed under section 6 may:
(a) enter upon, survey and take measurements and levels of any
(b) mark such levels, dig or bore into sub-soil of any land.
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WP No. 24480 of 2021
(c) demarcate the boundaries of the highway by planting stones or other suitable marks in different colours of a durable nature at intervals all along the highway in such a manner that the imaginary line adjoining such stones or marks shows the road boundary correctly,
(d) where there are bends or kinks on the road boundary, locate the stone or marks in different colours so as to give the correct configuration of the boundary if they are joined by straight lines;
(e) give consecutive numbers to such boundary stones or marks and maintain them on the ground as if they constituted part of the highway;
(f) lay out the building and control lines by placing marks in different colours and cutting trenches;
(g) if the survey cannot otherwise be made or measurements or levels taken or boundaries marked and lines laid out, cut down and clear away any standing crop, tree, fence, jungle or any part thereof;
(h) do all other acts necessary in that behalf.
Provided that the Highway Authority shall not, except with the consent of the occupier thereof, enter or permit any of the officers or servants to enter any premises without previously giving such occupier at least twenty four hours' notice in writing of its intention to do so."
The expression 'shall not' in the proviso is in the context of an officer who is discharging the functions as mentioned in the earlier part. The concerned officers appointed under section 6 of the Highways
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WP No. 24480 of 2021Act will have to undertake different tasks as listed therein and it is not just for the purposes of issuance of notification under Section 15 thereof. The notice must be issued when listed work is undertaken for the purposes of carrying out any of the provisions of this Act. These will have to undertake different tasks for the purposes of work such as for declaration of a highway [Section 3], to fix boundary and control lines for the highway[Section 7] and for preparation and maintenance of maps[Section 8], and in fact, the provisions of Section 7(2) of the Highways Act contemplate a detailed procedure for demarcation of boundary and control lines after notice as mentioned therein.
21. The notice contemplated under the proviso to Section 14 of the Highways Act is for the obvious safeguard to the owners of the properties lest there be unjustified intrusions in the name of conducting proceedings as contemplated under Section 14 of the
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WP No. 24480 of 2021Highways Act. If in a given case the concerned are made known of the details of the acquisition before the issuance of the notification under Section 15 of the Highways Act, as in the present case, with the details being made known on 09.11.2017 when a meeting is held, this Court cannot opine that errors in issuing the notice under Section 14 of the State Highways Act would be fatal to the acquisition.
22. The construction of expressway is of public importance as even the public benefit from such construction, and expressways must necessarily have requisite detours by way of bypasses to avoid going through the cities. A useful reference in this regard could be made to the decision of the Hon'ble Supreme Court in Nand Kishore Gupta vs. State of Uttar Pradesh 4 wherein, while reading the definition in Section 3(f) of the Land Acquisition Act,1894 it is held as follows:
4
[2010]10 SCC 282
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"56. During the debate, our attention was invited to Section 3(f) of the Act, which contains a definition for "public purpose". It was pointed out that where the acquisition is for the Company, it cannot amount to a public purpose. There can be no dispute about this proposition that where the acquisition of land is for the companies, it cannot amount to a public purpose. It was, therefore, our endeavor to find out whether this land was for the Company and we are quite satisfied with a finding recorded by the High Court that this acquisition was not for the Company but was for the public purpose.
57. The Expressway is a work of immense public importance. The State gains advantages from the construction of an expressway and so does the general public. Creation of a corridor for fast- moving traffic resulting into curtailing the travelling time, as also the transport of the goods, would be some factors which speak in favour of the Project being for the public purpose. Much was stated about the 25 million sq m of land being acquired for the five parcels of land. In fact, in our opinion, as has rightly been commented upon by the High Court, the creation of the five zones for industry, residence,
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amusement, etc. would be complementary to the creation of the Expressway."
23. This Court must also opine that in any event the impugned notification, which is issued for public benefit, need not fail only because there is some error in ensuring that there is notice under Section 14 of the Highways Act, even if such notice is construed as mandatory. This Court must draw useful strength from the decision of the Hon'ble Supreme Court in Competent Authority v. Barangore Jute Factory 5 wherein it is held as follows:
"Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the 5 (2005) 13 SCC 477
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acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the landowners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action."
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WP No. 24480 of 2021The construction of the bypass is also almost complete except for the stretch that runs through the subject properties, and this is irrefutable on the reading of the google image print out, which is extracted here. The construction of the bypass is seen in a line with a break in the middle which is indicated in the circle.
The work in this stretch is not completed because of the interim orders granted in these proceedings. The
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WP No. 24480 of 2021non-execution of the work along this stretch establishes that the respondents have not taken possession of the subject properties.
24. In the circumstances and the proposition enunciated in Competent Authority v. Barangore Jute Factory supra, the petitioners cannot be paid the market value as of the date of the impugned notification, but they must be paid the market value as of the date the possession is taken. In the light of the afore, the petition stands disposed of repelling the challenge to the acquisition but directing the respondents to pay the market value for the subject property on the date they take possession of the respective portions from the petitioners.
The petition stands disposed of accordingly.
Sd/-
JUDGE NV