Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.3710 OF 2012 (LA-RES) BETWEEN:
DR. B. MOHANDAS SHETTY SON OF VANAJAKSHI SHEDTHY AGED ABOUT 66 YEARS PRASHANTHI CLINIC VARAMBALLI VILLAGE BRAHMAVARA UDUPI TALUK & DISTRICT (BY SRI. S SHAKER SHETTY, ADVOCATE) AND:
1. THE UNION OF INDIA MINISTRY OF SHIPPING ROAD TRANSPORT AND HIGHWAYS …APPELLANT REPRESENTED BY ITS PROJECT DIRECTOR NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT - MANGALORE BISHOP COMPOUND, VALENCIA KANAKANADY POST MANGALURU - 575 002.
2. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA DR. AMBEDKAR VEEDHI BENGALURU - 560 001.
3. THE COMPETENT AUTHORITY AND ASSISTANT COMMISSIONER NATIONAL HIGHWAY 17 KUNDAPURA SUB-DIVISION KUNDAPURA-576 201 UDUPI DISTRICT ……RESPONDENTS (BY SRI. R V NAIK, ADVOCATE FOR R-1 AND R-3 SRI. KIRAN KUMAR, HCGP FOR R-2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No. 33636 OF 2011 DATED 21.03.2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT The appellant herein is one of the petitioners. The parties are referred as per their rank in the writ petition.
2. The brief facts of the case are as under: The petitioner is the owner of the land bearing Sy.No.191/3 situated at Varamballi Village, Brahmawara Udupi Taluk and District. The petitioner and his family members are completely depending on the above said land. The said land is situated adjacent to the National Highway No.17. The respondents-authorities have acquired more than 45 meters of lands in this region for forming the road. There is a road measuring about 10-12 meters. The respondents issued notification under Section 3A of the National Highways Act, 1956 (‘the NH Act’ for short), proposing to acquire vast lands for the purpose of building, widening 4 lane, maintenance, management and operation of National Highway No.17 in the stretch of lands from Km.283/300 to Km.348/500 in the district of Udupi. The said notification dated 29.10.2009, was published in the daily newspaper namely ‘Udayavani’, Manipal, dated 08.12.2009. As per the said notification, any person having interest in the said lands may, within 21 days from the date of notification in the official gazette, object to the use of said land for the above said purpose under Section 3A(1) of the NH Act. It was also made clear in the said notification that every such objection shall be made to the competent authority namely the Assistant Commissioner, Kundapur Sub- Division, Kundapur, who shall give the objector an opportunity of hearing before passing an order either allowing or disallowing their objections.
That in pursuance to the said notification, the appellant and other land owners have filed objections on the ground that the land in question consists of residential unit and commercial establishments and the notification is defective.
The persons who are residing / cultivating along the proposed highway are inclusive of backward classes and poor persons who completely depend on agricultural operation for their livelihood and most of the people are small land holders and petty farmers. Further the notification does not clearly specify which part of the survey number is intended to be acquired and the proposed width of the lane is excessive, inasmuch as in a lesser area, 6 lane road can be formed. That the National Highway authorities have acquired lands for the purpose of widening NH-17 road in the State of Kerala, to an extent of 45 meters to form 6 lane National Highway. The respondents-authorities are proposing to acquire the land of 60 meters for the purpose of widening/forming NH-17. As the proposed 60 meters width is far excessive than the required 40-45 meters of land, the proposed acquisition would give scope for unhealthy real- estate activities, and sought for dropping of acquisition proceedings.
The respondents-authorities after following the procedure prescribed under the National Highways Act, 1956, issued a final notification/declaration under Section 3D of the NH Act dated 25.10.2010. The petitioner and other land owners being aggrieved by the preliminary and final notifications issued under Sections 3A and 3D of the NH Act vide Annexures B and G, respectively, preferred writ petitions in W.P.Nos.33635-33640 of 2011 and Connected Petitions. The learned Single Judge was pleased to dismiss the writ petitions on the ground that the matter is fully covered by the judgment of this court passed in Writ Petition Nos.27610-27627 of 2010 and Connected Petitions. The petitioner being aggrieved by the order passed in the above said writ petitions, has filed this appeal.
3. Heard the arguments of learned counsels.
4. The question raised in the course of arguments is centered around Sections 3A, 3C and 3D of the Act. It would be relevant to reproduce these sections, which reads thus:
“3A. Power to acquire land, etc:-
(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.
(2) Every notification under sub- section (1) shall give a brief description of the land.
(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.
3C. Hearing of objections:- (1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub- section (1) of the section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section.
(2) Every objection under sub- section(1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Explanations:- For the purposes of this sub-section, “legal practitioner” has the same meaning as in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 pf 1961).
(3) Any order made by the competent authority under sub-section (2) shall be final.
3D. Declaration of acquisition:-
(1) Where no objection under sub- section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub- section (1) of section 3A.
(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section(1) of section 3A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.”
5. That once the Central Government is satisfied that any land is required for the building, maintenance, management or operation of a national highway or part thereof, then it shall declare its intention to acquire such a land by issuing notification in the official gazette giving a brief description of the land. The substance of the notification is also required to be published in two local newspapers, one of which will be in a vernacular language. Any person interested in the land can file objection within 21 days from the date of publishing of the notification in the official gazette. Such an objection is required to be made to the competent authority in writing. Thereafter the competent authority is required to give the objector, an opportunity of hearing either in person or through a legal practitioner. The exercise has to be followed by an order of competent authority either allowing or rejecting the objection. If no objection is made to the competent authority in terms of Section 3C(1) or where objections made by the interested persons have been disallowed, the competent authority is required to submit or report to the Central government, which shall then issue notification in the official gazette that the land should be acquired for the purpose or purposes mentioned in Section 3A(1) of the Act. On the publication and declaration under Section 3D(1) of the Act, the land vests absolutely in the Central Government, free from all encumbrances. Sub- section (3) of Section 3D provides that where no declaration under Sub-section (1) is published within a period of one year from the date of publication of notification under Section 3A(1), the said notification shall cease to have any effect by virtue of the proviso to Section 3D(3), the period during which any action or procedure to be taken in pursuance to the notification issued under Sub- section (1) of Section 3A of the Act.
6. We would like to consider and deal with the first ground challenged by the learned counsel for the petitioner in this writ appeal. That the petitioner and other land owners were not given an opportunity of being heard as contemplated by the provision and those who filed the objections, their objections were not considered in a proper perspective. He submitted, unlike Section 5A of the Land Acquisition Act, 1984, which confers a general right to object acquisition of land under Section 4 of the said Act, Section 3C(1) of the NH Act gives a very limited right to object and that the order passed by the competent authority being final in nature, consideration of the objections after giving an opportunity of being heard is not an empty formality and the competent authority were required to consider the objections filed by the land owners and decide the same by a speaking order dealing with all objections. In short, he submitted that the communication of the decision or order may by the competent authority in terms of Section 3C(2) is mandatory in nature and it was not done in the present case.
7. Having regard to the scheme of the acquisition in the above provision of the Act, it is clear that the competent authorities is required to give the objectors an opportunity of hearing either in person or through legal practitioners and this exercise requires to be followed by an order of competent authority either allowing or rejecting the objections. In the present case, the respondents in their statement of objections have clearly stated that after holding an enquiry and conducting the spot inspection, rejected the objection by the petitioner in accordance with Section 3C(2) of the Act.
8. It is true that unlike Section 5A of the Act, it confers a general right to object acquisition of land under Section 4 thereon, Section 3C(1) of the NH Act gives very limited right to object. It further appears from the contents of Section 3C(2) of the NH Act that the competent authority is the authority which is empowered to pass any order, either allowing or disallowing the objection and the objection and the decision taken by it under this section shall be final, as contemplated under sub- section (3) of Section 3C of the NH Act, unlike the provision contained in Section 5A of the Land Acquisition Act. In other words, it is not necessary for the competent authority to forward its report to the Central Government for taking a final decision. It is mandatory for the Central Government, as contemplated by Section 3D, to declare by notification in the official gazette that the land shall be acquired for the purpose or purposes mentioned in sub-section (1) of Section 3A. On receipt of the report submitted by the competent authority, disallowing the objection and once the declaration under Section 3D is published, the land vests absolutely in the Central Government, free from all encumbrances. In short, it is clear that the decision of the competent authority, either allowing or disallowing the objections, shall be final and therefore, hearing of the petition cannot be stated to be empty formality. There has to be effective and objective consideration of the objections.
9. It may be true that the competent authority has not dealt with the objection in the manner in which courts do. The competent authority cannot be expected to pass an order crafted like a judicial order which is passed by legally trained mind. Rejection of an objection in the present case, therefore, cannot be faulted only on that ground. It is clear from the records and we are satisfied that the competent authority invited objections, received the objections and after considering and dealing with the same, issued order as contemplated by Section 3C(2) of the Act, disallowing the objection and also furnished the copy of the order to all the objectors.
10. Mere fact that the petitioner would suffer due to acquisition, in our opinion, cannot be a ground for quashing and setting aside the notification issued under Section 3D of the Act.
When a greater public interest is involved, hardship to individuals cannot be a ground for quashing the impugned notification. We are in agreement with the competent authority that hardship cannot be a ground for quashing the impugned notification as against the interest of the people at large. Acquisition, whether it is under Land Acquisition Act or any other enactment, is bound to cause hardship to the land owners whose lands are subject matter of the acquisition and if the notification acquiring lands are set aside on these grounds, perhaps the acquisition would not only be difficult, but it would be impossible.
11. The next ground urged by the learned counsel for the petitioner is that as petitioner the 6 laning policy, and 4 laning policy, width of the road required is only 45 meters and therefore acquisition for widening NH-17 to the extent of 60 meters is unnecessary and as such the acquisition cannot be stated to be use of the land as contemplated by Section 3A of the Act. It was further contended that 60 meters width, perhaps would be required after 30 years and therefore, at this juncture it cannot be stated that the acquisition of excess land is for the use of national highway as contemplated by Section 3C of the Act. In support of this contention our attention was invited to Manual of Specifications and Standards of Six Laning of Nations Highways through Public Private Partnerhsip. The Manual, according to the learned counsel for the petitioner, which was prepared by Indian Road Congress as a consultancy assignment given by Planning Commission has been completely overlooked by the competent authority before issuing final notification under Section 3D. It was then submitted that the objections raised by the petitioner clearly demonstrate that the alignment as suggested by the petitioner would save many dwelling units, factories, buildings, commercial complexes, private gardens, etc.
12. In the present case, the petitioner has not objected to the project or development but his objections are only with respect to the alignment of the highways so as to avoid acquisition of his land including the structure standing thereon. The acquisition in the present case was for the project of great national importance, i.e., the construction of a national highway. National Highway Authority of India is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. The Courts, therefore, they submitted, are not at all equipped to decide upon the validity and feasibility of a particular project or whether the particular project would sub-serve the larger public interest.
13. The Supreme Court in UNION OF INDIA VS. KUSHAL SHETTY [AIR 2011 SC 3210] has reported as under:
“23. In this connection, before we deal with the submissions, it would be relevant to refer to the Judgments referred to by learned counsel for the respondents in support of their contentions. The learned counsel appearing for the appellants, did not rely on any Judgment either of High Courts or of the Supreme Court.
23.1 The Supreme Court in KUSHALA SHETTY, had an occasion to deal with challenge to the acquisition for widening of the very same National Highway i.e., NH-17 in the State of Karnataka and also the notifications issued under section 3A(1), 3C(2) and 3D of the Act. The acquisition in those proceedings was in respect of the lands in 18 villages of the Mangalore Taluk in the State of Karnataka for widening of NH-17 from Km. 358/000 to Km. 375/300; National Highway No. 48 from Km. 328/000 to 345/000 and National Highway No.13 from Km. 743/900 to Km. 745/000. The objection insofar as an opportunity of being heard is concerned, as contemplated under section 3C(2) of the Act, in the case before the Supreme Court and in the present case, is similar. The Supreme Court after considering the relevant provisions of the Act and so also the contentions urged on behalf of the land owners in paragraphs 20, 21 & 24 observed thus:
“20. The only reason assigned by the Division Bench of the High Court for upsetting the well considered order passed by the learned Single Judge negating the respondents' challenge to the acquisition was that declaration under Section 3D(1) was published even before communication of the decision taken by the Competent Authority in terms of Section 3C(2). The process of reasoning adopted by the Division Bench for recording its conclusion appears to have been influenced by an assumption that the objections filed by the land owners had not been decided till the issue of declaration under Section 3D(1). However, the fact of the matter is that the Competent Authority had, after giving opportunity of personal hearing to the objectors, passed order dated 11.10.2005 and rejected the objections. Though, that order was not crafted like a judicial order which is passed by a legally trained mind, the rejection of the representations made by the respondents cannot be faulted only on that ground. The Competent Authority did advert to the substance of objections, the details of which have been incorporated in Annexure P-3 filed before this Court. The concerned officer rejected the same by observing that the land proposed for acquisition is necessary for widening the existing National Highways into four lanes. If the consideration made by the Competent Authority is judged in the backdrop of the fact that a Special Purpose Vehicle was incorporated with the name New Mangalore Port Road Company Limited for implementation of the project known as New Mangalore Port Road Connectivity Project from Surathkal to Nantoor and B.C.Road to Padil along with bypass from Nantoor to Padil, it is not possible to castigate the proved reasons recorded by the Competent Authority for rejecting the objections.
21. The plea of the respondents that alignment of the proposed widening of National Highways was manipulated to suit the vested interests sounds attractive but lacks substance and merits rejection because except making a bald assertion, the respondents have neither given particulars of the persons sought to be favoured nor placed any material to prima facie prove that the execution of the project of widening the National Highways is actuated by mala fides and, in the absence of proper pleadings and material, neither the High Court could nor this Court can make a roving enquiry to fish out some material and draw a dubious conclusion that the decision and actions of the appellants are tainted by mala fides.
“24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field 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 development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of 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 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 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. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained”.
(emphasis supplied) 23.2 In COMPETENT AUTHORITY vs. BARANGAORE JUTE FACTORY & ORS. – (2005) 13 SCC 477, the Supreme Court while dealing with the challenge to the acquisition under the provisions of the Act in paragraph 8, observed thus:
“……..We would however, like to add that unlike Section 5-A of the Land Acquisition Act, 1894 which confers a general right to object to acquisition of land under Section 4 of the said Act, Section 3-C(1) of the National Highways Act gives a very limited right to object. The objection can be only to the use of the land under acquisition for purposes other than those under Section 3-A(1). The Act confers no right to object to acquisition as such. This answers the argument advanced by the learned counsel for NHAI that failure to file objections disentitles the writ petitioners to object to the acquisition. The Act confers no general right to object, therefore, failure to object becomes irrelevant. The learned counsel relied on the judgment of this Court in Delhi Admn. V. Gurdip Singh Uban. In our view, this judgment has no application in the facts of the present case where the right to object is a very limited right. The case cited is a case under the land Acquisition Act, 1894 which confers a general right to object to acquisition of land under Section 5-A. Failure to exercise that right could be said to be acquiescence. The National Highways Act confers no such right. Under this Act there is no right to object to acquisition of land Next >