Andhra Pradesh High Court - Amravati
Kolla Sambasiva Rao vs The Union Of India on 18 October, 2023
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.12336 of 2023
Between:-
Kolla Sambasiva Rao .... Petitioner
And
The Union of India,
Department of Shipping, Roads, Transports & Highways,
Rep.by its Secretary, Transport Bhavan No.1,
Parliament Street, New Delhi & Others. .... Respondents
Counsel for the Petitioner : Mr.Ghanta Sridhar
Counsel for the respondents : G.P. for Land Acquisition
Mr.S.S.Varma,
Standing Counsel for NHAI
ORDER:
The writ petition is filed seeking to declare the action of the respondents in not considering the objections submitted by the petitioner properly and passing the impugned order, even without taking into consideration of the report of the Structural Engineer, as arbitrary, illegal, contrary to Article 300-A of the Constitution of India and violation of principles of natural justice and pass such other order or orders as may be deemed fit.
2. Heard Mr.Ghanta Rama Rao, learned Senior Counsel appearing for the petitioner. Also heard learned Assistant Government Pleader for Land Acquisition and Mr.S.S.Varma, learned Standing Counsel for National Highways Authority of India.
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3. The learned Senior Counsel made his submissions inter alia to the effect that the petitioner is the owner of land of an extent of Ac.2387 sq.yds., which was purchased through different registered Sale Deeds for valuable consideration. He submits that the petitioner had established a godown in the said land. While that being the position, an extent of Ac.193.75 sq.yds., was acquired from the petitioner in Survey No.930/A. Under the said circumstances, the learned Senior Counsel submits that the petitioner converted the said godown into a function hall by incurring huge expenditure and running the same. He further submits that on coming to know that the respondent-authorities are proposing to acquire some more land of the petitioner for the purpose of providing entry to National High way, the petitioner filed W.P.No.14333 of 2020 inter alia seeking to declare the action of the respondents in issuing Notification dated 26.09.2019, without giving proper description of the property sought to be acquired and refusing to consider the objections of the petitioner as illegal, arbitrary etc. He submits that the said writ petition was disposed of by a learned Judge by an order dated 30.12.2022 whereby the Endorsement dated 07.02.2020 of the 5th respondent therein was set aside and a direction was issued to consider the objections filed by the petitioner and to pass a reasoned order thereon.
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4. The learned Senior Counsel submits that thereafter a Notice dated 21.02.2023 was issued to the petitioner calling upon him to appear before the 5th respondent along with the supporting documents for hearing on the petitioner's objections. Accordingly, the petitioner appeared before the 5th respondent and submitted all the relevant documents including a copy of the report of Structural Engineer, who had inter alia opined that if the proposed acquisition is proceeded with, it will affect the structures including generators, sump, borewell, power house etc. The learned Senior Counsel submits that without considering the said objections in a proper perspective, much less the report of the Structural Engineer, the 5th respondent mechanically rejected the objections raised by the petitioner vide proceedings dated 21.04.2023. He submits that as seen from the said proceedings, it would appear that a report was obtained from the Project Director i.e., the 4th respondent and on the basis of the same, the petitioner's objections were rejected. He submits that a copy of the said report was not even furnished to the petitioner and reliance on the same constitutes gross violation of principles of natural justice. He submits that the said proceedings dated 21.04.2023 are therefore liable to be set aside on that ground. In support of his contentions, the learned Senior Counsel places reliance on the decision of a learned Judge of Madras High Court(Madurai Bench) in Shanmugha Arts v. Union of 4 India. The learned Senior Counsel submits that by virtue of the proposed acquisition, the petitioner would not be in a position to operate the function hall, has to necessarily closed down the same with the resultant irreparable loss and great hardship to the petitioner.
5. Per contra, the learned Standing Counsel for NHAI advanced arguments inter alia, that the 5th respondent passed a detailed order by considering the objections of the petitioner and there is no illegality or irregularity in the same warranting interference by this Court. Drawing the attention of this Court to the said proceedings dated 21.04.2023, the learned counsel would submit that as the objections raised by the petitioner involved technical issues, they were referred to the Project Director for securing his remarks. He submits that the 4th respondent-Project Director submitted a detailed report setting out the crucial aspects including the requirement of the land sought to be acquired in the interest of safety of the public at large. He further submits that as the objections of the petitioner are duly taken into consideration, there is no violation of principles of natural justice, merely because a report of the Project Director involving the technical issues was not furnished, it cannot be contended that the said proceedings are vitiated on the ground of violation of principles of natural justice. The learned counsel also submits that after considering 5 the objections of the petitioner, a 3D Declaration under the National Highways Act was published in respect of the subject matter land followed by 3G Notification. He submits that the petitioner participated in the proceedings and an Award was passed on 01.07.2023. The learned counsel submits that in such circumstances, the petitioner is not entitled to any relief in the present writ petition. Further the learned counsel while relying on the decision of the Hon'ble Supreme Court reported in Union of India v. Kushala Shetty1 seeks to dismiss the writ petition.
6. This Court has considered the submissions made and perused the material on record.
7. On an appreciation of rival contentions, the point that falls for consideration by this Court is:
Whether the proceedings of the 5th respondent dated 21.04.2023 warrants interference in the facts and circumstances of the case?
8. At the outset, it is pertinent to mention that the National Highways Act hereinafter referred to as 'Act' is a Special Enactment.
Section 3A confers power on the Central Government to acquire land for a public purpose i.e., for building, maintenance, management 1 (2011) 12 SCC 69 6 or operation of a National High Way or part thereof by Notification in the Official Gazette.
Section 3B of the Act confers power to enter for survey on issuance of a Notification under sub-section (1) of Section 3A.
Section 3 C of the Act contemplates hearing of objections of any person interested in the land to be submitted within 21 days from the date of publication of Notification under sub-section(1) of Section 3A of the Act and Section 3(C)(2) provides that the objections submitted under Section 3C(1) of the Act shall be considered by the competent authority, after giving an opportunity of hearing to the Objector and passing of an order either allowing and disallowing the objections. As per Section 3(C)(3), any order made by the competent authority under sub-section(2) shall be final.
Section 3 D of the Act deals with the Declaration of acquisition and 3D(2) specifically provides that on a publication of the Declaration under sub-section(1), the land vests absolutely with the Central Government free from all encumbrances.
Section 3 G of the Act deals with the determination of amount payable as compensation.
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9. In the present case, on the earlier occasion, the petitioner filed a writ petition aggrieved by the Order/Endorsement rejecting the objections of the petitioner and the same was disposed of with the following directions:
"18. Accordingly, the writ petition is disposed of, setting aside the impugned endorsement dated 07.02.2020 in R.C.No.1706/2019-M passed by the 5th respondent and the 5th respondent-Competent authority is directed to consider the objections filed by the petitioner on 03.02.2020 and 04.02.2020 as if they were filed within the period stipulated under Section 3C(1) of the Act and pass a reasoned order by following the procedure contemplated under Section 3C(2) of the Act, within a period of two (02) months from the date of receipt of copy of this order and further consequential steps afresh. There shall be no order as to costs."
10. In terms of the said order, the petitioner was afforded an opportunity of hearing and after considering the objections, a reasoned order dated 21.04.2023 was passed.
11. The main attack to the said order in the present writ petition is that the report of the Structural Engineer submitted by the petitioner was not taken into consideration and a report of the Project Director, a copy of which was not furnished to the petitioner was taken into account to reject the objections of the petitioner and therefore the same is not sustainable. Insofar as the said contentions are concerned, the stand of the respondents is that as the objections involved 8 technical issues, the same was referred to the Project Director, who submitted a detailed report, the contents of which are referred to in detail in the proceedings dated 21.04.2023 and after considering the same, the petitioner's objections were rejected. As is evident from the said proceedings after examining the objections and appreciating the report of the Project Director on factual aspects, the 5th respondent rejected the objections, therefore the contentions advanced in this regard merits no acceptance. At this juncture, it may be appropriate to refer the decision of the learned Judge of Madras High Court in Shanmugha Arts's case, wherein relying on two Full Bench Decisions of Madras High Court, the learned Judge opined that the principles of natural justice warrants furnishing of copy of the report and non- furnishing of the same is fatal.
12. Though the contention of the learned counsel with reference to the above decision, sounds attractive at the first blush, the same however merits no acceptance, in the facts and circumstances of the case, more particularly in view of the Publication of the Acquisition under Section 3D(2) of the Act by virtue of which the land is vested with the Central Government and there is no challenge to the same. Another crucial aspect, which is not in dispute is that after publication of the Declaration under Section 3D(2) of the Act, the Competent 9 Authority proceeded further in the matter and an order was passed on 01.07.2023 under Section 3G(1) of the Act in respect of the 149 sq.mts., acquired from the petitioner. As seen from the said order/Award which was filed along with a Memo dated 18.07.2023, it would also appear that the petitioner participated in the enquiry. Therefore, the present writ petition has practically become infructuous.
13. Further, as rightly contended by the learned Standing Counsel for the National Highways Authority of India as the objections of the petitioner are technical in nature, the same were referred to the Project Director and on the basis of his report, the objections were rejected. In this regard, it is profitable to refer to the judgment of the Hon'ble Supreme Court in Kushala Shetty referred to above, wherein the Hon'ble Supreme Court, it is inter alia held as follows:
"28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the filed of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the filed 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 national 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. The courts are not at all equipped to decide upon the viability 10 and feasibility of the particular project and whether the particular alignment would subserve 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 mala fides."
14. Insofar as the submission of the learned Senior Counsel that in view of the acquisition of land, the petitioner's function hall would permanently be closed, the same also merits no acceptance, in the light of the averments made in the counter-affidavit, which remained unrebutted. The 4th respondent in his counter had categorically asserted as follows:
"8.........On the other hand, proposed acquisition is a small extent of 149 sq.mtrs., out of his total extent of about 2125 sq.m. i.e., only 7% of his total extent. Further, the compound wall, power panel board room are only falling under acquisition which can be accommodated in his balance land and convention Centre is not at all effected. As such, it is not correct to say that the petitioner will not in a position to use the remaining structure as function hall."
15. This Court in the light of the factual and legal position referred to above, is of the considered opinion that the Proceedings dated 21.04.2023 warrants no interference and the petitioner is not entitled to any relief. The point is answered accordingly. 11
16. Therefore, the writ petition is dismissed. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall and closed.
_____________________ NINALA JAYASURYA, J Date: 18.10.2023 BLV 12 THE HON'BLE SRI JUSTICE NINALA JAYASURYA W.P.No.12336 of 2023 Date: 18.10.2023 BLV