Madras High Court
R.Thamarai Selvan vs The Union Of India on 20 November, 2017
Author: M.Govindaraj
Bench: M.Govindaraj
W.P.(MD) NOS.7753 & 12172 OF 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 03.08.2018
PRONOUNCED ON: 30.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
W.P.(MD) NOS.7753 AND 12172 OF 2018
AND
CONNECTED MISCELLANEOUS PETITIONS
WP (MD) NO.7753 / 2018
R.Thamarai Selvan ... Petitioner
Vs.
1.The Union of India
Rep. by its Secretary to Government
Ministry of Road Transport and Highways
Transport Bhawan, Parliament Street,
New Delhi – 110 001.
2.National Highways Authority of India (NHAI)
Rep. by its Project Director
H.No.83/1, SBI First Colony Extension,
Bye Pass Road,
Madurai – 625 016.
3.The State of Tamil Nadu
Rep. by its Principal Secretary to Government
Highways and Minor Ports Department
Secretariat, Chennai – 600 009.
4.The Authorised Officer cum
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W.P.(MD) NOS.7753 & 12172 OF 2018
Special District Revenue Officer
(Land Acquisition – National Highways)
Door No.17, Observatory Street,
Kanyakumari – 629 001.
Kanyakumari District.
5.Mr.M.Muthudayar
Project Director
National Highways Authority of India
No.314E, K.P.Road (Near Ayyappan Koil)
Parvathipuram, Nagercoil,
Kanyakumari District. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India praying for the issuance of Writ Certiorari, to call for the records
relating to the Notification S.O.3679(E) dated 20.11.2017 and Notification
No.Na.Ka.J.3/594/2017 dated 14.03.2018 issued by the 4th respondent for
the Ministry of Road Transport and Highways, Government of India, in so
far as it relates to the acquisition of land of the petitioner measuring 549
sq.mt situated in Survey No.595/1 in Kanyakumari Village, Kanyakumari
District and quash the same.
For Petitioner : Mr.A.Thirumurthy
For Respondent-1 : Mr.D.Saravanan
For Respondents
2 and 4 : Mr.K.K.Senthilvelan
For Respondent-3 : Mr.J.Padmavathi Devi
Special Government Pleader
WP (MD) NO.12172 / 2018
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W.P.(MD) NOS.7753 & 12172 OF 2018
V.Ranjith Shankar ... Petitioner
Vs.
1.The Union of India
Rep. by its Secretary to Government
Ministry of Road Transport and Highways
Transport Bhawan, Parliament Street,
New Delhi – 110 001.
2.National Highways Authority of India (NHAI)
Rep. by its Project Director
H.No.83/1, SBI First Colony Extension,
Bye Pass Road,
Madurai – 625 016.
3.The State of Tamil Nadu
Rep. by its Principal Secretary to Government
Highways and Minor Ports Department
Secretariat,
Chennai – 600 009.
4.The Authorised Officer cum
Special District Revenue Officer
(Land Acquisition – National Highways)
Door No.17, Observatory Street,
Kanyakumari – 629 001.
Kanyakumari District.
5.Mr.M.Muthudayar
Project Director
National Highways Authority of India
No.314E, K.P.Road (Near Ayyappan Koil)
Parvathipuram, Nagercoil,
Kanyakumari District. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India praying for the issuance of Writ Certiorari, to call for the records
relating to the Notification S.O.3679(E) dated 20.11.2017 and Notification
No.S.O.944(E) dated 01.03.2018 issued by the respondent No.1 Ministry
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of Road Transport and Highways, Government of India and all the
consequential and related action thereto, in so far as it relates to the
acquisition of land of the petitioner's total land of 29 cents in Re-survey
No.551/1 (Old Survey No.6001) covered in Patta No.1607 situated in
Kanyakumari Village, Kanyakumari District and quash the same; declare
that the entire acquisition proceedings initiated with respect to the
acquisition of land of the petitioner's land admeasuring 29 cents in Re-
survey No.551/1 (Old Survey No.6001) covered in Patta No.1607 situated
in Kanyakumari Village, Kanyakumari District as unconstitutional and
null and void.
For Petitioner : Mr.Stalin Abhimanyu
For Respondent-1 : Mr.D.Saravanan
For Respondents
2 and 4 : Mr.K.K.Senthilvelan
For Respondent-3 : Mr.J.Padmavathi Devi
Special Government Pleader
COMMON ORDER
A Gazette Notification by the first respondent/ Ministry of Road Transport cum Highways (Road Transport and Highways Department) in S.O.3679 (E) dated 20.11.2017 in exercise of the powers conferred by sub- section (1) of Section 3A of the National Highways Act, 1956 (48 of 1956) was issued for Forming of Road Safety Advocacy in Kanyakumari District. The petitioners have challenged the said Notification on the grounds of lack of power to acquire land under Section 3A(1) of the National Highways Act, 1956, the vagueness and lack of necessary details, 4/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 fraud on power in exercise of the statute, violation of Section 3A of the National Highways Act, 1956.
2.The learned counsel for the petitioners would contend that the purport and object of National Highways Act, 1956 is only for the purpose of acquiring lands for the building, maintenance, management or operation of a National Highway or part thereof. The National Highways Act, 1956 being an expropriatory legislation, the powers conferred under the statute can be exercised only for that purpose and it cannot be exercised for allied purposes. If such power is exercised for other purposes, which is not prescribed in the statute or contrary to the object and reasons, the same is illegal. They would further contend that the plan was not annexed with the Notification and it was not produced even during the hearing of the case. Hearing of objection under Section 3C(1) of the National Highways Act, 1956 was hastily conducted and there is vagueness in the description of land and that is sought to be improved by issuing additional Notification giving additional particulars.
3.The learned counsel for the petitioners would further contend that the respondents wants to acquire the lands for the Road Safety Advocacy, which shall be acquired under the different Act and not under 5/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 the National Highways Act, 1956. The lands should have been acquired under the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013, which provides the entirely different set of procedures and remedies to the land loosers. The land loosers will be entitled to ample time and higher compensation for the lands acquired under the above Act. Whereas, the provisions of National Highways Act, 1956, which are draconian have been misused for acquiring the land for a different purpose, which is malice in law.
4.The learned counsel for the petitioners relied on a judgment of the Hon'ble Supreme Court in GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY VS. DEVENDRA KUMAR [2011 (12) SCC 375] for the proposition lack of power to acquire land under Section 3A(1) of the National Highways Act, 1956.
5.For the proposition that any acquisition, under such expropriatory legislation, for a purpose, which is ultra vires the Act is liable to be struck down, as being null and void, the learned counsel for the petitioners relied on a judgment of the Hon'ble Supreme Court in 6/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 D.L.F. QUTAB ENCLAVE COMPLEX EDUCATIONAL CHARITABLE TRUST VS. STATE OF HARYANA AND OTHERS [2003 (5) SCC 622].
6.The learned counsel for the petitioners also contended that there was complete ambiguity, which vitiates the entire land acquisition proceedings and for the said proposition, they relied on a judgment of the Hon'ble Supreme Court in COMPETENT AUTHORITY VS. BARANGORE JUTE FACTORY [2005 (13) SCC 477].
7. Further contention was raised with regard to undue haste of acquisition process, the initial notification under Section 3A was issued on 20.11.2017 and thereafter, no objections were called, no personal hearing was given to the land owners. Further, it is contended that the mandatory procedure as contemplated under Section 3 of the National Highways Act, 1956 has not been followed and thereby, vitiates the entire notification itself. The rule of audi alteram partem is to ensure a fair hearing and to ensure that there is no failure of justice. In support of their contentions, they relied on a judgment of the Hon'ble Supreme Court in MYSORE URBAN DEVELOPMENT AUTHORITY VS. VEER KUMAR JAIN [2010 (5) SCC 791].
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8.The petitioners submitted that if the initial action is found not to be in consonance with law, all subsequent and consequential proceedings fall through as illegality strikes at the root of the matter. In support of their contention, they relied on a judgment of the Hon'ble Supreme Court in CHAIRMAN CUM MANAGING DIRECTOR, COAL INDIA LTD., VS. ANANTA SAHA [2011 (5) SCC 142].
9.It is submitted by the learned counsel for the petitioners that the Notifications dated 20.11.2017 and 01.03.2018 issued in violation of the provisions of National Highways Act are an illegal attempt to acquire the lands of the petitioners in complete derogation of petitioners right to property conferred by the Constitution of India under Article 300A and therefore, it is absolute fraud on power. For the said proposition, the relied on a judgment of the Hon'ble Supreme Court in K.T. PLANTATION (P) LTD., VS. STATE OF KARNATAKA [2011 (9) SCC 1].
10.The learned counsel for the petitioners submitted that Section 3D(4) of National Highways Act, 1956 has to be read down to exclude High Court and Supreme Court from the word “Court” as held by High 8/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 Court of Karnataka in H.J.SIWANI VS. UNION OF INDIA [2009 SCC ONLINE KAR 254].
11.A Constitution Bench of the Hon'ble Supreme Court in SOMAVANTI AND OTHERS VS. THE STATE OF PUNJAB AND OTHERS [AIR 1963 SC 151] had observed that the expression “public purpose” would however, include a purpose, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned. However, under the National Highways Act, 1956, the purpose is very limited and the acquisition under the Act is permissible only in cases where land is required for building, maintenance, management or operation of a National Highway or part thereof.
12.Per contra, the learned counsel appearing for the respondents would vehemently contend that the lands acquired was for a public purpose as enshrined under the National Highways Act, 1956. According to them, Notification was published under Section 3A(1) of the National Highways Act, 1956 and the brief description of the lands as well as the plan were annexed to the Notification. It is clearly mentioned in the Notification that as per the provisions of the National Highways Act, 9/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 1956, the plan and other details are annexed and it is available with the Competent Authority for inspection also. The Competent Authority has given hearing as contemplated under Section 3C(1) of the National Highways Act, 1956 and issued declaration under Section 3D(1) of the National Highways Act, 1956 and it was published in two Daily Papers viz., “Daily Thanthi” (Tamil) and “The Hindu” (English) on 16.03.2018 and 14.03.2018. Thereafter, enquiry was conducted under Section 3G(3) of the National Highways Act, 1956 and only two persons opposed the acquisition and no one else opposed the survey and measurements of the lands and passing of the Award is under process.
13.In so far as the contention with regard to Road Safety Advocacy project is concerned, it was clearly for the public purpose and it was done in consultation with all the Authorities concerned and also with the other experts in respect of building the Road Safety Advocacy.
14.Section 16(2)(b) of the National Highways Authority of India Act, 1988, specifically provide for construction of Offices or Workshops and establish and maintain Hotels, Motels, Restaurants and Rest Rooms at 10/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 or near the Highways vested in or entrusted to it. Section 16(2)(e) of the National Highways Authority of India Act, 1988 provides for developing and providing consultancy and construction services in India and abroad and carry on research activities in relation to the development, maintenance and management of Highways or any facilities thereat.
15.Therefore, Section 16(2) of the National Highways Authority of India Act, 1988, provides for Road Safety Advocacy for the public purpose and therefore, the acquisition of lands for the public purpose cannot be questioned by anyone. Therefore, according to the learned counsel for the respondents, the grounds raised by the petitioners is not sustainable. Since the Notification gives brief description of the land and also clearly mentions the land plans and other details available in the office of the Competent Authority, the judgment of the Hon'ble Supreme Court in COMPETENT AUTHORITY VS. BARANGORE JUTE FACTORY [2005 (13) SCC 477] will not apply. On the other hand, the judgment of the Hon'ble Supreme Court in UNION OF INDIA VS. KUSHALA SHETTY AND OTHERS [2011 (12) SCC 69] will squarely apply to this case.
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16.The learned counsel for the respondents relied on the following judgments in support of their contentions:
(i)First Bench judgment of this Court in THE GENERAL MANAGER (TECH) AND PROJECT DIRECTOR, NHAI VS. SRIDEVI AND OTHERS [2006 (5) CTC 634].
(ii)Division Bench judgment of this Court in THE SECRETARY, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS AND ANOTHER VS. THOMAS VICTOR AND OTHERS [WA (MD) NO.199 OF 2017 DECIDED ON 18.04.2017]
(iii)Judgment of this Court in THE CLASSIC FARMS (CHENNAI) LTD., VS. THE UNION OF INDIA AND OTHERS [WP NOS.
29508 & 29509 OF 2010 DECIDED ON 06.12.2013] 12/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018
(iv)Judgment of this Court in V.NANDAKUMAR VS. UNION OF INDIA [WP NOS.10277 TO 10279 OF 2009 DECIDED ON 05.10.2009]
(v)Judgment of the Hon'ble Supreme Court in UNION OF INDIA VS. KUSHALA SHETTY AND OTHERS [2011 (12) SCC 69]
(vi)Division Bench judgment of this Court in B.NAMBIRAJAN AND OTHERS VS. THE DISTRICT COLLECTOR AND OTHERS [WP (MD) NO.2353 OF 2018 DECIDED ON 18.04.2018]
17.Heard the submissions made on either side and perused the materials available on record.
18.In so far as the Notification is concerned, it is issued under Section 3A(1) of the National Highways Act, 1956 and it provides for brief description of the land. It mentions the name of the District, name of the Taluk, name of the Village, Survey Number, type of land, nature of 13/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 land, area in square metres. Apart from that, it is clearly mentioned the land plans and other details of the land covered under the Notification would be available and any interested parties can approach the Office of the Competent Authority. Admittedly, only two persons opposed the notification and the writ petitioners, admittedly claimed that they were not aware of the Notification at all.
19.The Hon'ble First Bench of this Court in THE GENERAL MANAGER (TECH) AND PROJECT DIRECTOR, NHAI AND SRIDEVI [2006 (5) CTC 634] has categorically held that the impugned notification specifically refers to land plan and therefore, non-compliance of Section 3A(2) of the National Highways Act, 1956, does not arise.
20.In V.NANDAKUMAR VS. UNION OF INDIA AND OTHERS [2010 (1) MLJ 901] this Court relying on a judgment of the Division Bench as well as the other judgments has held the brief description made in the Notification will satisfy the mandatory requirement and therefore, there is no vagueness in issuance of Notification.14/37
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21.In the judgment of the Hon'ble Supreme Court in COMPETENT AUTHORITY VS. BARANGORE JUTE FACTORY [2005 (13) SCC 477] the plan was not annexed to the notification and it was not given to the petitioners therein.
“.......It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the law. “
22.At the time of hearing, the respondents have produced a sketch form revenue records relating to the lands. But the sketch from revenue officials would not satisfy the mandatory requirements of the Act with regard to land plan intended for public purpose. It is contended that additional notification was issued to clarify the bifurcation of revenue 15/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 divisions. In that event, a new plan should have been prepared and the parties should have been put on notice. Hence, the judgment of the Hon'ble Supreme Court in Barangore Jute Factory's case applies to the present case. The acquisition is bad for violation of Section 3 of National Highways Act.
23.In so far as the scope of the National Highways Act, 1956 is concerned, it is very clear that under this Act, the land can be acquired for building, maintenance, management and operation of National Highways or for thereof. The Act does not specify acquisition of land for other purposes.
24.As per Section 3(A) of the National Highways Act, 1956, the Central Government, for a public purpose, is conferred with the power to acquire the land for the above said purpose.
25.Under Section 3(C) of the National Highways Act, 1956, any person interested in the land, is given opportunity to raise objections to the 16/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 notification to the Competent Authority. It is mandated that the objector is entitled to hear him either in person or through legal practitioner and after such enquiry, the Competent Authority will pass appropriate orders.
26.Under Section 3(D) of the National Highways Act, 1956, a declaration with regard to acquisition shall be published in the Official Gazette.
27.However, in the instant case, there is no serious objection as to following of the procedure other than saying that it was hastily conducted. Therefore, the provisions in acquiring the land has been legally followed. However, the Notification reads that the land acquisition is for the purpose of Road Safety Advocacy. The Road Safety Advocacy Project does not fall within the ambit of National Highways Act, 1956.
28.It will be useful to refer to the National Highways Authority of India Act, 1988. The objects and reasons of the above Act clearly mentions that Section 5 of the National Highways Act, 1956, provides that 17/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 the Central Government may direct that any function in relation to the development or maintenance of National Highways shall also be exercisable, among others, by any Officer or authority subordinate to the Central Government. As such, the functions of execution of the field activities including survey, investigations and preparation of projects on National Highways have been delegated to the respective State Government. That had resulted in anomalous situation for the lapses of the State Governments. For that purpose, an autonomous National Highways Authority was created and they have taken over all the Highways from the State Public Works Department. In the object specified in the Act, the salient features are mentioned that any land required by the Authority for discharging its functions will be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of the Land Acquisition Act, 1894 or any corresponding law for the time being in force. Therefore, the object and reasons of the National Highways Authority of India Act, 1988, clearly spells out the functions of the Authority is only with respect to the National Highways vested under the National Highways Act, 1956 and in so far as the requirement for its functioning, it shall be acquired under the Land Acquisition Act, 1894. Now that, it is under Right to Fair Compensation and Transparency in 18/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 Land Acquisition and Rehabilitation and Resettlement Act, 2013.
29.Section 13 of the National Highways Authority of India Act, 1988 specifies that such land may be acquired for the Authority under the provisions of the National Highways Act, 1956 and that will be deemed for the public purpose. Therefore, it is imperative to note what are all the functions of the Authority under the National Highways Authority of India Act, 1988.
30.Section 16 under Chapter IV of the National Highways Authority of India Act, 1988, provides for the functions of the Authority, which reads as under:
“Section 16 in The National Highways Authority of India Act, 1988
16.Functions of the Authority.— (1) Subject to the rules made by the Central Government in this behalf, it shall be the function of the Authority to develop, maintain and manage the national highways and any other highways vested in, or entrusted to, it by the Government.19/37
https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 (2) Without prejudice to the generality of the provisions contained in sub-section (1), the Authority may, for the discharge of its functions—
(a) survey, develop, maintain and manage highways vested in, or entrusted to, it;
(b) construct offices or workshops and establish and maintain hotels, motels, restaurants and rest-rooms at or near the highways vested in, or entrusted to, it;
(c) construct residential buildings and townships for its employees;
(d) regulate and control the plying of vehicles on the highways vested in, or entrusted to, it for the proper management thereof;
(e) develop and provide consultancy and construction services in India and abroad and carry on research activities in relation to the development, maintenance and management of highways or any facilities thereat;
(f) provide such facilities and amenities for the users of the highways vested in, or entrusted to, it as are, in the opinion of the Authority, necessary for the smooth flow of traffic on such highways;
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(g) form one or more companies under the Companies Act, 1956 (1 of 1956) to further the efficient discharge of the functions imposed on it by this Act; 1[(h) engage, or entrust any of its functions to, any person on such terms and conditions as may be prescribed;]
(i) advise the Central Government on matters relating to highways;
(j) assist, on such terms and conditions as may be mutually agreed upon, any State Government in the formulation and implementation of schemes for highway development;
(k) collect fees on behalf of the Central Government for services or benefits rendered under section 7 of the National Highways Act, 1956 (48 of 1956), as amended from time to time, and such other fees on behalf of the State Governments on such terms and conditions as may be specified by such State Governments; and
(l) take all such steps as may be necessary or convenient for, or may be incidental to, the exercise of any power or the discharge of any function conferred or imposed on it by this Act.
(3) Nothing contained in this section shall be construed as — 21/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018
(a) authorising the disregard by the Authority of any law for the time being in force; or
(b) authorising any person to institute any proceeding in respect of a duty or liability to which the Authority or its officers or other employees would not otherwise be subject under this Act.”
31.Section 16 of the National Highways Authority of India Act, 1988, confers power on the Authority to survey, develop, maintain and manage National highways vested in or entrusted to it. The functions of the Authority also includes construction of offices or workshops and establish and maintain hotels, motels, restaurants and rest rooms at or near the Highways vested in, or entrusted to it; and to provide consultancy and construction services in India and abroad and carry on research activities in relation to the development, maintenance and management of Highways or any facilities and amenities for the users of the Highways vested in or entrusted to it; to form one or more companies under the Companies Act, 1956 for the efficient discharge of the functions imposed on it by the Act.
32.A close reading of Section 16 of the National Highways 22/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 Authority of India Act, 1988 would make it clear that the functions of the Authority is to develop, maintain and manage Highways vested in or entrusted to it; to construct offices or workshops and establish and maintain hotels, motels, restaurants and rest-rooms at or near the Highways vested in or entrusted to it. The employment of the words “at or highways vested in or entrusted to it” repeatedly in all the major portion of the functions specified under section 16 of National Highways Authority Act clearly shows that it is only to supplement the object and reasons of maintenance of the Highways and not for acquisition of lands for the purpose of discharging its functions. Clause (b) of Sub-section 2 of Section 16 of this Act makes it very clear that construction of offices or workshops and establish and maintain hotels, motels, restaurants and rest- rooms at or near the Highways vested in or entrusted to it makes it very clear that the land acquired for Highways and other requirements vested with the Government is different from acquiring lands for providing other facilities provided by the National Highways Authority of India. For example, for construction of residential buildings and township for its employees, as specified in Clause (c) of Sub-section (2) of Section 16, it goes without saying that the land acquired for that purpose cannot be made under National Highways Act, 1956. Even assuming that it is 23/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 acquired for the public purpose vested under the National Highways Authority of India Act, 1988, the notification shall specifically mention that it is acquired for the functioning of National Highways Authority of India Act, 1988. Insofar as the instant case is concerned, the land was acquired for laying National Highways long back. But, using the provisions of Land Acquisition Act, the land is acquired for a different purpose. As far as the absence of the word “Road Safety Advocacy Project” within the ambit of the National Highways Act, 1956 as well as under the functions of the National Highways Authority of India Act, 1988, the Notification cannot be held to be within the purview and scope of National Highways Act, 1956.
33.It is true to state that the Courts are not at all called to discharge the viability and feasibility of the particular project. The scope and judicial review is of course very limited. But the notification issued under Section 3A of the National Highways Act, 1956, shall be for the purpose of forming, building, maintaining and developing a National Highway and it cannot be for any other purposes.
34.As rightly contended by the learned counsel for the 24/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 petitioners, the National Highways Act, 1956 does not confer any power to acquire the land for the purpose of Road Safety Advocacy, which, at a later point of time described as Training Centre by the respondents. Even assuming that the National Highways Authority of India Act, 1988, confers power to acquire the lands for its functions under Section 13 of the said Act that does not include the Road Safety Advocacy or Training Centres as it's functions. In that event, further assuming that the functions specified under Section 16 of the National Highways Authority of India Act, 1988, is not in exhaustive but only illustrative and they have the powers of implementing the project of the Road Safety Advocacy, the acquisition under the provisions of the National Highways Act, 1956 shall specifically mention the public purpose on acquiring the land for the National Highways Authority of India Act, 1988. It shall be noted that lands were acquired and National Highway was formed already. So far as it mentions that the land is acquired within the stretch of land from KM 203 to KM 232 of National Highway No.7 and for forming the Road Safety Advocacy in that stretch of land, it can be inferred that the land is not acquired for the purpose of forming the National Highway No.7 Madurai – Kanniyakumari Section in the State of Tamil Nadu but for the discharge of functions of the National Highways Authority of India Act, 25/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 1988. A submission is made that a guest house is proposed to be constructed in the acquired land. The respondents are not in a position to deny the same and come out with a clear picture of the project. There is no explanation as to acquiring the land in beach front in a familiar tourist place like Kanyakumari after laying National Highway long back. Therefore, acquisition of land, for a different purpose using the expropriatory provisions of National Highways Act amounts to legal malice and not sustainable in law.
35.In the judgment of the Punjab and Haryana High Court in M/S.GOLDEN IRON AND STEEL FORGING VS. UNION OF INDIA AND OTHERS [2008 SCC ONLINE P&H 498] the object of the National Highways Act, 1956 and National Highways Authority of India Act, 1988, has been explained as under:
“64. Before we proceed further, it would be necessary to appraise the relevant provisions of the National Highways Act, 1956, the National Highways Authority Act, 1988, and the provisions of the National Highways Laws (Amendment) Act, 1997, namely, Act No. 16 of 1997, more particularly the provisions that provide 26/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 for acquisition of land, its objects and reasons, as also relevant provisions of the Land Acquisition Act.
65. The National Highways Act, 1956, was enacted by parliament to provide for the declaration of certain highways to be National Highways and for matters connected therewith. The said Act provides that all National Highways would vest in the Union and also defines the word "Highways". Section 5 of the said Act places the responsibility for development and maintenance of national highways upon the Central Government.
Section 7 thereof empoweres the Central Government to levy fees at such rates for use of bridges, tunnels on national highways.
66. The National Highways Authority of India Act, 1988 was enacted to provide for the constitution of an authority for the development, maintenance and management of national highways and for matters connected therewith or incidental thereto. The authority is to be constituted under Section 3 of the said Act. Section 11 empowers the Central Government to vest in or entrust to the authority such national highway or any stretch 27/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 thereof as may be specified by way of a notification. Section 12 of the Act provides for transfer of assets and liabilities of the Central Government to the authority. Sections 14 and 15 enable the authority to enter into and perform any contract necessary for the discharge of its functions under the Act and Section 15 provides for the mode of execution of such contracts. Section 16 enumerates the functions of the authority. The other provisions do not merit mention as they are not relevant to the present controversy.”
36.The Hon'ble Supreme Court in GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY VS. DEVENDRA KUMAR [2011 (12) SCC 375] has observed as under:
“9. In the meanwhile, the property department of the Authority made a request that land use of the acquired land may be changed from industrial to housing and another area may be earmarked for industrial purpose and for this, the Development Plan may be modified. Thereupon, a committee was constituted to suggest swapping of land without changing the percentage of land 28/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 use and as was expected, the committee gave a favourable report on 2.11.2009. The same was approved by the Board on the very next day i.e. 3.11.2009. (This happened 3 days before the issue of notification under Section 6(1) read with Section 17(1) of the 1894 Act). After approval by the Board, notice dated 20.11.2009 was got published in "Dainik Jagran" and suggestions/objections were invited from the members of public about the proposed modification in the Development Plan. The proposed modification of the Development Plan was finally sanctioned by the Board sometime in the month of January, 2010 and was sent to the State Government for its approval. The latter granted approval sometime in March, 2010. “
37.The contention of the petitioners that the National Highways Act, 1956 is an expropriatory legislation and any deviation from it, will vitiate the entire proceedings, as held by the Hon'ble Supreme Courti n D.L.F. QUTAB ENCLAVE COMPLEX EDUCATIONAL CHARITABLE TRUST VS. STATE OF HARYANA AND OTHERS [2003 (5) SCC 622] has some force. The relevant portion from the said judgment reads as under:
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...
50. Basic Rule of interpretation of Statute is that the Court shall not go beyond the statute unless it is absolutely necessary so to do. Rule of 'purposive constructions' would be resorted to only when the statute to observe or when read literally it leads to manifest injustice or absurdity. “
38.When a particular legislation was enacted for a particular purpose, it shall be enforced for that particular purpose and object. Any deviation there from will vitiate the proceedings.
39.The Four – laning of Highways through Public Private Partnership Manual of Specifications and Standards published by Planning Commission, Government of India, New Delhi, which is relied on by the learned counsel for the respondents provides for the designs, features and other facilities attached to the National Highways and provided during the formation of National Highways has been explained. This Manual will not be of any avail to the respondents.
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40.The Hon'ble First Bench of this Court in E.KESAVALU VS.
THE CHIEF DIVISIONAL MANAGER, INDIAN OIL CORPORATION LTD., AND OTHERS [1992 WRIT L.R. 638] has held as under:
“3.Mr.S.Govind Swaminathan, learned senior counsel appearing for the petitioner, submits that the view of the learned single Judge that there is no statutory requirement with regard to the distance norms is not correct and the recommendations of the Indian Roads Congress flow only out of S.5 of the National Highways Act 48 of 1956, hereinafter referred to as the Act. Thus we are obliged to examine the said provision of the Act. It reads as follows:
“5. Responsibility for development and maintenance of National Highways.—It shall be the responsibility of the Central Government to develop and maintain in proper repair all national highways; but the Central Government may, by notification in the Official Gazette, direct that any function in relation to 31/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 the development or maintenance of any national highway shall, subject to such conditions, if any, as may be specified in the notification, also be exercisable by the Government of the State within which the national highway is situated or by any officer or authority subordinate to the Central Government or to the State Government.” In the typed-set of papers, disclosed in this writ appeal, we find that a copy of the second revision of recommended practice for location and layout of Roadside Motor – Fuel filling and Motor-Fuel Filling – cum – service stations, published by the Indian Roads Congress, has been disclosed and reliance is being placed only on it. In or view, it cannot come anywhere near S.5 of the Act. The reason is simple. S.5 of the Act primarily speaks only about the Central Government, to develop and maintain national highways. It further speaks also about the concerned State Government or an officer or authority subordinate to the Central or State Government, getting authorised by notification to discharge the said functions. Nothing is demonstrated before us to fit in the above recommendations of the Indian Roads Congress within the 32/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 ambit of S.5 of the Act. We are not able to express a view different from that of the learned single Judge on the question of the propriety of this Court issuing a writ of mandamus, as asked for by the petitioner. Accordingly, we dismiss, this Writ Appeal.”
41.As per the above judgment, the Four – laning of Highways through Public Private Partnership Manual of Specifications and Standards published by Planning Commission, Government of India, New Delhi, will not have any statutory force. Even assuming that it has statutory force, it does not provide for forming Road Safety Advocacy and therefore, reliance place on by the learned counsel for the respondents is of no avail.
42.As I already held that the brief description of the land, which is clearly provided in the notification, it cannot be held as vague or lacks necessary details. On the other hand, the notification is beyond the scope of the National Highways Act, 1956 and National Highways Authority of India Act, 1988. If at all the respondents wanted to acquire the land, they should have acquired the land under the Right to Fair Compensation and 33/37 https://www.mhc.tn.gov.in/judis/ W.P.(MD) NOS.7753 & 12172 OF 2018 Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013 or mentioning the specific public purpose of acquiring the lands for the functions of National Highways Authority of India. In so far as the acquisition is not made for the purpose of discharge functions of National Highways Authority of India, to maintain, manage the National Highways, it is beyond the scope of the Act and thereby illegal.
43.Therefore, the Notification S.O.3679(E) dated 20.11.2017 and Notification No.Na.Ka.J.3/594/2017 dated 14.03.2018 issued by the 4th respondent in so far as it relates to the acquisition of land of the petitioner in WP (MD) No.7753 of 2018 and the Notification S.O.3679(E) dated 20.11.2017 and Notification No.S.O.944(E) dated 01.03.2018 issued by the first respondent in so far as it relates to the acquisition of land of the petitioner in WP (MD) No.12172 of 2018 are quashed.
44.In fine, both the writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
30.04.2021
Index : Yes/No
Internet : Yes/No
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W.P.(MD) NOS.7753 & 12172 OF 2018
TK
To
1.The Secretary to Government
Government of India
Ministry of Road Transport and Highways
Transport Bhawan, Parliament Street,
New Delhi – 110 001.
2.The Project Director
National Highways Authority of India (NHAI) H.No.83/1, SBI First Colony Extension, Bye Pass Road, Madurai – 625 016.
3.The Principal Secretary to Government Government of Tamil Nadu Highways and Minor Ports Department Secretariat, Chennai – 600 009.
4.The Authorised Officer cum Special District Revenue Officer (Land Acquisition – National Highways) Door No.17, Observatory Street, Kanyakumari – 629 001.
Kanyakumari District.
5.Mr.M.Muthudayar Project Director National Highways Authority of India No.314E, K.P.Road (Near Ayyappan Koil) Parvathipuram, Nagercoil, Kanyakumari District.
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TK PRE-DELIVERY COMMON ORDER MADE IN WP (MD) NOS.7753 & 12172 OF 2018 30.04.2021 37/37 https://www.mhc.tn.gov.in/judis/