Karnataka High Court
Smt.Gayathri Dattu vs Union Of India on 2 February, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 5431 OF 2020(LA-RES)
BETWEEN:
SMT. GAYATHRI DATTU
D/O LATE SRI. GURUVAIAH
AGED AOBUT 66 YEARS
RESIDING AT NO. 626, 3RD CROSS
HMT LAYOUT, R.T.NAGAR
BENGALURU - 560 032.
...PETITIONER
(BY SRI. SAJJAN POOVAIAH, SR. COUNSEL FOR
SRI. JOSEPH ANTHONY, ADVOCATE)
AND:
1. UNION OF INDIA
THROUGH THE MINISTRY OF ROAD TRANSPORT AND
HIGHWAYS, TRANSPOR BHAVAN
1, PARLIAMENT STREET
NEW DELHI - 110 001.
REP BY ITS SECRETARY.
2. GOVERNMENT OF KARNATAKA
THROUGH THE PUBLIC WORKS DEPARTMENT
VIKASA SOUDHA
BENGALURU - 560 001.
REPRESENTED BY ITS PRINCIPAL SECRETARY,
3. THE SPECIAL LAND ACQUISITION OFFICER
AND COMPETENT AUTHORITY
NATIONAL HIGHWAYS AUTHORITY OF INDIA
KUNIGAL N.H. 207, HOSKOTE- DABASPET SECTION
NELAMANGALA SITE OFFICE
NELAMANGALA, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT - 562 110.
2
4. NATIONAL HIGHWAYS AUTHORITY OF INDIA
ESTABLISHED UNDER THE NATIONAL HIGHWAYS
AUTHORITY OF INDIA ACT, 1988
HAVING ITS HEADWUARTERS AT G-5 AND 6, SECTOR-10
DWARAKA, NEW DELHI - 110 001.
REP BY ITS CHAIRMAN.
...RESPONDENTS
(BY SRI. MADANAN PILLAI.R., ADVOCATE FOR R-1
SRI. A.C.BALARAJ, AGA FOR R-2
SMT. SHILPA SHAH, ADVOCATE FOR R-3 & R-4)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DATED: 30.12.2011 ANNEXURE-B
ISSUED BY R-1 AND ETC.
THIS W.P. IS BEING HEARD AND RESERVED ON
23.06.2021 COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In this petition, petitioner has sought for the following reliefs:-
"(a) Issue writ of certorari or any other order or direction in the nature of a writ of certiorari quashing the:
(i) Preliminary Notification dated 30.12.2011 bearing Notification No.2925(E) (Annexure B) issued by Respondent No.1;
(ii) Final Notification dated 23.10.2012 bearing Notification No.S.O.2552(E) (Annexure C) issued by Respondent No.1;
(iii) Award dated 22.02.2013 bearing No.LAQ/NHAI/NH207/AWD/CR-5/2012-13 (Annexure-D) issued by Respondent No.3;3
(iv) Notice dated 25.07.2019 bearing No.SLAO & CANH-207/CR1/2019-20 issued by Respondent No.3 (Annexure-K) and
(v) Notice dated 29.07.2019 bearing No.SLAO&CANH-207/CR1/2019-20 issued by Respondent No.3 (Annexure-L).
(b) Direct the respondents to issue fresh Notification in terms of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by annexing the road Map / Lane Map along with the Gazette Notification and finalize the acquisition proceedings thereafter;
(c) Declare that following the Eccentric method in formation of road without any justification is arbitrary and it amounts to offending the petitioner's right under Articles 14, 19(1)(g), 21 and 300A of the Constitution of India;
Or in the alternative,
(d) Declare that the entire land acquisition proceedings in respect of the schedule property have lapsed under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
(e) Issue any other appropriate order/direction/writ as this Hon'ble Court deems fit in the facts and circumstances of the case including the cost, in the interest of justice and equity;4
2. Briefly stated the various contentions put froth in the petition are as under:-
(i) Petitioner claims to be the absolute owner of the schedule property bearing Sy.No.14/1A1 measuring 10 guntas situated at Aralumallige village and Sy.No.103 measuring 934 Sq.mtrs situated at Kesthur village, both at Doddaballapur taluk, Bangalore Rural District. The schedule property is situated about 700 mtrs from Doddaballapur ring road and the details of the same have been set forth in the petition.
(ii) It is contended that though the Central Government notified the schedule property for acquisition for the purpose of National Highway vide preliminary notification dated 30.12.2011, the petitioner was not served with any notice of the same and she would not object/oppose the acquisition at that point in time.
Subsequently, a final notification under Section 3D of the National Highways Act, 1956 (for short 'the N.H.Act of 1956') was issued on 23.10.2012 without providing any opportunity to the petitioner. It is also contended that thereafter an award was passed on 22.02.2013 without 5 providing any opportunity to the petitioner. It is further contended that the name of the petitioner was not found in the notifications and award and thereby depriving the petitioner of any opportunity to challenge the acquisition proceedings. It is further contended that the procedure prescribed in Section 3 of the N.H.Act of 1956 was not followed, which vitiates the acquisition proceedings.
(iii) The petitioner has contended that possession of the petition schedule property was not taken and award was not passed prior to coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the said Act of 2013) and that consequently, compensation has to be paid in favour of the petitioner as per the said Act of 2013.
(iv) The petitioner has also contended that the acquisition by the respondents following the eccentric and not concentric method is illegal and deserves to be quashed apart from the fact that the earlier company called Transstroy (India) Limited was not going ahead with the project and though the award was passed on 22.02.2013, 6 there was no paper publication for the purpose of awarding the said project and no personal hearing was granted nor proper hearing was conducted before issuing the impugned notifications and award.
(v) The petitioner has also contended that earlier, other land owners and the petitioner approached this Court in W.P.No.26/2014, W.P.No.27/2014 and W.P.58220/2013 challenging the impugned acquisition and there was an order of status quo passed in the said petitions, which were continued from time to time by this Court. Subsequently, in W.P.No.26/2014 filed by the petitioner herein, the respondents therein filed an application I.A.1/2019 putting forth certain subsequent events and facts. Based on the said application, this Court disposed of the said petition vide final order dated 15.07.2019 after noticing that on 11.10.2018, one more final notification was issued by the respondents. It is contended that despite the aforesaid facts and circumstances, respondent No.3 has issued the impugned notices dated 25.07.2019 and 29.07.2019 intimating the petitioner that the petitioner has to submit certain documents for the purpose of receiving 7 compensation. It is the grievance of the petitioner that apart from the fact that the impugned acquisition proceedings are illegal and arbitrary and violative of principles of natural justice, the impugned notices purporting to pay compensation under the N.H.Act of 1956 and not under the said Act of 2013 are also illegal, arbitrary, vitiated and the same deserve to be quashed.
(vi) In the grounds set forth in the petition, the petitioner has contended that prior sanction under the Environment Protection Act, 1956 having not been obtained by the respondents, they have no jurisdiction to implement the project in respect of the schedule property; the respondents ought to have followed the concentric method instead of eccentric method and the impugned acquisition is violative of Articles 14, 21, and 300A of the Constitution of India that the impugned Notices are contrary to the final order passed in W.P.No.26/2014 by this Court as well as the submissions of the respondents in I.A.1/2019 filed by them in the said writ petition; that the impugned acquisition is contrary to the N.H.Act of 1956 as well as the principles of natural justice and no opportunity as required in law was 8 granted in favour of the petitioner; that the impugned notifications are vague and bald without giving proper and necessary particulars of the land owners, survey numbers, extent etc., and contrary to the road map / lane map which also vitiate the acquisition proceedings; that the award amount has not been paid and no notice of taking possession in terms of Section 3-E of the N.H.Act of 1956 has been issued and possession has not been taken. It is also contended that majority of the persons, whose lands have been acquired for the subject acquisition have not been paid the compensation nor has they accepted the same and consequently, the petitioners are entitled to compensation under the said Act of 2013 and not under the N.H.Act of 1956.
3. In addition to the documents produced as Annexures along with the petition, petitioner has also produced the following documents:-
(i) Memo dated 09.06.2021 enclosing copy of the Notification dated 28.12.2017 issued by the Ministry of Road Transport and Highways, Government of India; and 9
(ii) Aide-Memoire submitted by the petitioner along with the decision of the Rajasthan High Court in the case of Vikas Construction Company vs. Union of India - 2018 SCC online RAJ 75 and decision of this Court in the case of G.C.Thippeswamy vs. Union of India - ILR 2018 KAR 4899;
4. While the respondents 1 to 3 have not filed their statement of objections, the respondent No.4-NHAI have opposed the petition and has filed statement of objections by putting forth the following contentions:-
(i) It is contended that the petitioner has suppressed the material fact and is guilty of abuse of process of Court and the petition is liable to be dismissed, particularly when the earlier petition in W.P.No.26/2014 was disposed of by this Court on 15.07.2019 on account of which the present petition is barred by res judicata.
(ii) It is contended that since the award was passed on 22.02.2013 prior to the said Act of 2013 coming into force on 01.01.2014, the said Act of 2013 is not applicable to the petition schedule property. The respondent No.4 has 10 produced Annexure-R2 showing the compensation paid under the N.H.Act of 1956 in favour of other land losers, some of whom have sought enhancement before the Arbitrator under Section 3G(5) of the N.H.Act and as such, the question of the said Act of 2013 being applicable to the petition schedule property does not arise.
(iii) It is contended that no valid or sufficient grounds have been made out by the petitioner to seek quashing of the acquisition proceedings or payment of compensation under the said Act of 2013. The details of the project, the acquisition proceedings, passing of award, payment of compensation, earlier round of litigation in W.P.No.26/2014 etc., have been narrated in the statement of objections in order to contend that there is no merit in the petition and that the same is liable to be dismissed. It is also contended that the notification dated 11.10.2018 have been issued by the respondents by following the concentric method and as per the provisions of the N.H.Act.
(iv) It is further contended that though several ordinances were issued by the respondents commencing from 31.12.2014 as well as the removal of difficulties order 11 dated 28.08.2015 and the guidelines dated 28.12.2017 and also a manual of guidelines issued by the Ministry of Road Transport and Highways in relation to applicability of the said Act of 2013 for payment of compensation under the said Act of 2013 by the respondents, none of the said ordinances, order, guidelines etc., are applicable to the petition schedule property and / or the payment of compensation in favour of the petitioner under the said Act of 2013. Putting forth several other contentions in the statement of objections and denying the various contentions put forth by the petitioner, the respondent No.4-
NHAI sought for dismissal of the petition.
In support of its defence, learned counsel for the respondent No.4 has produced the following documents in addition to the documents produced along with the statement of objections :-
(i) Payment voucher in respect of Sy.No.15/1B evidencing disbursement of compensation to Tarun Kumar;
(ii) Possession certificate in respect of Sy.No.15/1B;
(iii) Details of 3D Notification dated 23.10.2012; 12
(iv) Indore Development Authority vs. Manohar Lal - (2020) 8 SCC 129;
(v) Manual of guidelines on Land Acquisition for National Highways under N.H.Act of 1956 published in December 2018;
5. Heard Sri.Sajjan Poovaiah, learned Senior counsel for Sri.Joseph Anthony for petitioner. I have also heard Smt.Shilpa Shah, learned counsel for respondents 3 and 4 and Sri.A.C.Balaraj, learned AGA for respondent No.2 and Sri.Madanan Pillai, learned CGC for respondent No.1 and perused the material on record.
6. In addition to reiterating the various contentions urged in the petition and referring to the documents produced by the petitioner and the decision relied upon by her, learned senior counsel for the petitioner submits that the impugned acquisition proceedings pursuant to the impugned notifications and award are illegal and arbitrary and the same deserve to be quashed for the various grounds urged in the petition, particularly in the light of the earlier round of litigation in W.P.No.26/2014 filed by the 13 petitioner. Alternatively, it is contended that having regard to the various contentions and documents referred to the Aide-Memoire including the Central Government Ordinances dated 31.12.2014, 03.04.2015 and 30.05.2015 issued under Section 105 of the said Act of 2013 which were followed by the removal of difficulties order dated 28.08.2015 passed under Section 113 of the said Act of 2013 followed by the guideline issued by the respondents dated 28.12.2017 and the manual of guidelines published in December 2018, the petitioner would be entitled to compensation under the said Act of 2013 and not under the N.H.Act of 1956. It is therefore contended that the impugned Notices at Annexures- K and L issued to the petitioner by respondent No.3 after disposal of W.P.No.26/2014 on 15.07.2019 by this Court are illegal and arbitrary and the same deserve to be quashed and the respondents be directed to pay compensation in favour of the petitioner under the said Act of 2013.
7. Per contra, learned counsel for respondent No.4- NHAI in addition to reiterating the various contentions 14 urged in the statement of objections and referring to the documents produced by them, submits that there is no merit in the petition and that the same is liable to be dismissed.
8. I have given my anxious consideration to the rival submissions.
9. Before adverting to the material on record, it is necessary to state that in the earlier round of litigation in W.P.No.26/2014, the petitioner had sought for the following reliefs:-
" (a) quash the Preliminary Notification dated 30.12.2011 and Final Notification dated 23.10.2012 (Annexure - B) Alternatively, direct the respondents to continue the proceedings under Act 30/2013;
(b) in the event the petitioners are not entitled for first relief, the respondents may be permitted to proceed in terms of Act 30/2013 and direct the respondents to follow straight road from Doddaballapura Ring Road to Dobbaspet Junction from 108.00 Km to 113.450 Km by following concentric method and further restraining them from formation of road with Eccentric method; 15
(c) direct the respondents to issue fresh Notification in terms of Act 30/2013 of National Highways Act by annexing the road Map / Lane Map along with the Gazette Notification and finalise the acquisition proceedings;
(d) Declare that following the Eccentric method in formation of road without any justification is arbitrary and it amounts to offending the rights of the farmers under Article 14 and 19(1)(g) of the Constitution of India;
(e) Declare that the scheme which has been entrusted to private parties though Private Partnership Project (PPP) - respondent No.5 and 6 herein, without issuing tender and without public notice is offending the rule of law and transparency which is the basis structure of constitution and Rule of law and violates Article 14 of the Constitution of India;
(f) Issue any other appropriate order / direction / writ as this Hon'ble Court deems fit in the facts and circumstances of the case including the cost, in the interest of justice and equity."
10. During the pendency of the said petition, the respondents in W.P.No.26/2014 filed an application I.A.1/2019 to bring on record the subsequent events that have transpired / occurred during the pendency of the petition. In fact, after referring to the said subsequent 16 events and documents in relation thereto, the respondents requested this Court to dispose of the said petition by permitting them to proceed with the land acquisition for completion of N.H.207. Based on the said application and after hearing both sides, this Court disposed of the said W.P.No.26/2014 in terms of the statements made by the respondents in I.A.1/2019. The said final order dated 15.07.2019 passed by this Court in W.P.No.26/2014 reads as under:-
"Heard the learned Senior Counsel appearing for the petitioner as well as the respondents.
2. Learned Senior Counsel Sri.D.N.Nanjunda Reddy appearing for the petitioner has no objections to dispose of the writ petition, recording the statements made by the respondents in paragraph 5 of I.A-1/2019 which reads thus:
"Accordingly, the DPR Consultant have prepared the alignment duly proposing the acquisition of additional land of 15 mtr on the other side of stretch at the above location, which almost satisfies the requirement of the petitioner filed under the petition i.e., the fresh land acquisition is that now there will be construction in concentric method, on both sides. Hence, there is now no cause to state that since land acquisition is only on one side, and thus violative of Article 14 of the Constitution of India."17
3. The said statement of the respondents is placed on record.
In view of the subsequent developments as aforesaid, this writ petition stands disposed of in terms of the statements made by the respondents in I.A.1/2019."
11. The material on record discloses that pursuant to the said W.P.No.26/2014 being disposed of by this Court on 15.07.2019, the respondent No.3 - SLAO has issued the impugned Notices at Annexure-K dated 25.07.2019 and Annexure-L dated 29.07.2019 without referring to any of the contentions of the parties; the impugned Notices referred supra, have also been issued to the petitioner without indicating, whether compensation would be paid under the said Act of 2013 or under the N.H.Act of1956; the impugned Notices have been issued without assigning any reason as to why the claim / prayer of the petitioner put forth in W.P.No.26/2014 have been negatived and as to why the petitioner would be entitled only to compensation, subject to production of the documents referred to in the impugned Notices; in other words, the impugned Notices that have been issued without providing or affording 18 sufficient and reasonable opportunity to the petitioner and the same being unreasoned and lacony, without any application of mind, the impugned Notices are violative of principles of natural justice, the same deserve to be quashed.
12. A perusal of the material on record, including the impugned notices will clearly indicate that the various contentions urged by both sides in the present petition referred to supra have neither been considered nor adverted to by respondent No.3, who merely purport to take compensation in favour of the petitioner without specifying, whether the said compensation would be paid under the N.H.Act of 1956 or under the said Act of 2013. Under these circumstances, without expressing any opinion on the merits / demerits of the rival contentions, I am of the considered opinion that the impugned Notices are illegal and arbitrary and the same deserve to be quashed and the matter be remitted back to the concerned respondent(s) for reconsideration afresh by giving an opportunity to the 19 petitioner to put forth all her contentions and consider the same and pass appropriate orders in accordance with law.
13. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned Notices at Annexures-K and L dated 25.07.2019 and 27.09.2019 respectively are hereby quashed;
(iii) The matter is remitted back to the concerned respondent(s) for reconsideration of the claim of the petitioner afresh after considering all the contentions and documents urged and produced by the petitioner and respondents and after providing sufficient opportunity to the petitioner and in accordance with law.
(iv) All rival contentions urged by both sides are kept open and no opinion is expressed on the same.
SD/-
JUDGE Srl.