(Prayer in W.P.(MD).No.2922 of 2014: Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records relating to the notification passed by the respondents under Sub-Section (1) of Section 3D of National Highways Act, 1956 (48 of 1956) in No.S.O.438(E), dated 25.02.2011 and to quash the same.)
Common Order:
All the above writ petitions have been filed challenging the acquisition proceedings in respect of the lands owned by the petitioners herein, for forming four lane National Highways Road No.47 on the stretch of Kerala “ Tamil Nadu Border “ Kanyakumari Division.
2. Since the issue involved in all the above writ petitions are one and the same, they are disposed of by way of this common order.
3. The facts in brief are as follows:-
3-1. The petitioners herein are owning lands in different survey numbers at different villages, in the proposed route, where the Government is intending to form four lane National Highways Road. The petitioners are carrying on agricultural activities in their lands. While so, the Government of India intended to lay four lane National Highway connecting Kerala “ Tamil Nadu Border “ Kanyakumari Division. In furtherance to the same, the Government of India/1st respondent issued a notifications under Section 3A(1) of the National Highways Act, 1956 (in short NH Act) in Government Gazette in S.O.No.399(E) dated 17.02.2010 and S.O.670(E) dated 23.03.2010 and the said notifications were published in two dailies viz., New Indian Express and Dinathanthi on 20.03.2010 and 27.04.2010 respectively, declaring the intention of the Government to acquire the petitioners' land and other lands, as specified in the said notifications. From the said newspaper publications, the petitioners came to know that the lands belonging to the petitioners are also going to be acquired for the said project; when the petitioners approached the Competent authority-cum-Special Revenue Officer, Land Acquisition, they were informed that they have to submit their objections on the basis of the said newspaper notifications within 12 days, failing which their objections will not be considered by the authority.
3-2. It is the case of the petitioners that the said notifications issued under Section 3-A(1) of the NH Act contained only the Survey Number and the nature and classification of the land, but the said notifications did not give a brief description of the lands sought to be acquired, particularly when a survey number contains number of lands and the petitioners' lands form a part of it. As the impugned notifications issued under Section 3-A(1) of the NH Act are vague, the petitioners were not in a position to know whether their lands are subject matter of acquisition or not. Hence, the petitioners gave representations to the respondents stating that the said lands are the only source of their livelihood and raising objection as to why their lands should not be excluded from the acquisition, when there are vacant lands belonging to the government which are available and lying close to the lands of the petitioners. However, the objections of the petitioners were rejected by the Competent Authority-cum-Special District Revenue Officer, Land Acquisition, stating that the proposed project is a major project of national importance and the alignment was approved by the Government of India after thorough examination of alternatives and other aspects, as such there is no possibility to exclude the lands of the petitioners from acquisition.
3-3. It is the grievance of the petitioners in all the cases that no proper enquiry was conducted by the respondents. All of a sudden, to the shock and surprise of the petitioners, the notifications under Section 3-D(1) of the NH Act were issued by the Government/1st respondent in Government Gazette vide S.O.No.264(E), dated 07.02.11 and S.O.No.438(E) dated 25.02.2011 were issued and the same were published in two dailies viz., New India Express and Dinathanthi on 24.07.2011 and 25.02.2011 respectively, declaring that the lands of the petitioners and other lands specified in the said notifications vested with the central government. According to the petitioners, for the first time, their name and description of the property came to be published in the notification issued under Section 3-D(1) of the NH Act. Aggrieved over the acquisition proceedings, the writ petitions have been filed by the petitioners.
3-4. So far as the writ petitions in W.P.(MD)No.2922, 4530, 4531 and 8736 of 2014, which are relating to Notification S.O.No.670(E), dated 23.03.2010, are concerned, an additional ground was also raised by the petitioners, challenging the acquisition proceedings, stating that in respect of these writ petitions no award has been passed in respect of the acquisition of the land. Further, after issuance of declaration Notification under Section 3-D(1) of the NH Act, dated 25.02.2011, the respondent did not take any step to disburse the compensation and quantifying the amount of compensation payable to the respective land owners. The respondents have deliberately failed to follow the procedures either in National Highways Act or in the Land Acquisition Act, 1984. Under Section 11A of the Land Acquisition Act, 1984, the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration notification and if no award is made within that period, the entire proceedings for the land acquisition shall lapse. In the instant case, even though declaration notification under Section 3-D(1) of the NH Act was made by the respondents on 25.02.2011, the respondents did not take any steps to make an award under Section 11 of the Land Acquisition Act, 1894 till the said Act was repealed by the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act, 2013. Hence, the declaration notification dated 25.02.2011 issued under Section 3-D(1) of the NH Act by the respondents is clearly barred by the Land Acquisition Act, for not making the award within a period of two years from the date of declaration. According to the petitioners, since the two years period given to the respondents to make an award under Section 11A of the Land Acquisition Act, 1894 had lapsed, the entire acquisition proceedings are vitiated. Thus, they sought for quashing the impugned acquisitation proceedings.
4. With regard to the writ petitions arising out of the notifications in S.O. 399(E), dated 17.02.2010, in the counter it has been stated by the respondents that Section 3-A(1) notification under the NH Act, 1956 for the petitioner's land was published in the official Gazette of India in No.337 S.O.399(E) dated 17.02.201 and also published in the two dailies viz., New Indian Express and Dinathanthi on 20.03.2010. The competent authority-cum-Special District Revenue Officer, Land Acquisition, National Highways, has also conducted enquiry on the objections of the petitioners under Section 3(C)(1) of the NH Act and after enquiry, issued orders under Section 3(C)(2) of the NH Act, by overriding the objections of the petitioners, on different dates. The declaration notification under Section 3D(1) of the NH Act for acquisition of the lands of the petitioners and others for the purpose of laying four lane NH-47 from Kerala-Tamil Nadu Border “Kaniyakumari Division, was published in the official Gazette of India No.224 S.O.264(E) dated 07.02.2011. The said 3-D(1) notification was published in two dailies viz., New Indian express and Dinathanthi on 24.07.2011; after publications of the notification, the competent authority-cum-Special District Revenue Officer, Land Acquisition conducted enquiry under Section 3-G(1) of the NH Act to decide the ownership of the lands and thereafter, awards have been passed on different dates and compensations were also paid to the petitioners through their bank accounts.
5. With the regard to the writ petitions arising out of the Notification No.670(E), it is stated by the respondents in the counter that the notification under Section 3-A(1) of the NH Act was issued by the Government on 23.03.2010 in the official Gazette of India No.547 S.O.No.670(E) and the same was published in two dailies viz., New Indian Express and Dinathanthi on 27.04.2010. Thereafter, the declaration notification under Section 3-D(1) of the NH Act was published in the Gazette of Indian in 374 S.O.483(E) on 25.02.2011 and the same was published in two dailies viz., New Indian Express and Dinathanthi on 20.07.2011.
6. In the counter, it has been further stated by the respondents that in fact, the petitioners' objections to exclude their lands from acquisition were considered and rejected by the competent authority-cum-Special District Revenue Officer, Land Acquisition. The contention of the petitioners that government lands are lying near to the petitioners' land and that they can be used for the proposed road project is not correct and in fact, no suitable government lands are available for forming the four lanes. The draft notifications had been submitted to the Government of India and it was approved and only thereafter, publications were made in the Gazette and newspapers. Therefore, no infirmity could be found in the issuance of notifications. The respondents have followed the procedures properly under law.
7. So far as the contentions of the writ petitioners in W.P.(MD)No.2922, 4530, 4531 and 8736 of 2014 that no award has been passed, it is replied by the respondents in the counter that the provisions of the Land Acquisition Act, 1894 are not applicable to the present case and as such, the limitation of two years period specified under Section 11(A) of the Land Acquisition Act, 1894 will not be applicable to the present acquisition for National Highways. In the National Highways Act 1956 there is no specific time limit fixed for passing award from the date of publication of Section 3D notification. Similarly, the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 are also not applicable to the acquisition under National Highways Act, 1956. Thus, the respondents sought for dismissal of the writ petitions.
8. I have heard the submissions made by the learned senior counsel Mr.M.Ajmal Khan, learned counsel Mr.K.Guhan, Mr.R.J.Karthick, Mr.K.Suddaliyandi, Mr.T.Selvakumar, Mr.V.Raghavachari, who are appearing for the petitioners and learned counsel Mr.G.Rajaraman, Mr.M.Murugan (GA), Mr.C.Arul Vadivel @ Sekar, Mr.K.K.Senthil Velan, Mr.R.Murugappan, Mr.R.Arjunarajan, CGSC and Mr.S.Jeyasingh, who are appearing for the respondents.
9. The main ground raised by the learned Senior Counsel Mr.Ajmal Khan is that as per Section 3-D(3) of the NH Act, a notification of declaration has to be issued within a period of one year from the date of issuance of notification under Section 3-A(1) of the Act, and in default, the notification issued under Section 3-A(1) of the Act shall cease to have any effect. In the present case, notification under Section 3-A(1) was published in the official gazette on 16.02.2010 whereas declaration under Section 3-D(1) was made on 21.07.2011 ie., after expiry of one year period; thus, on the date of issuance of declaration notification under Section 3-D(1), one year limitation period from the date of notification under Section 3-A(1) had lapsed and as such, the notification under Section 3-A(1) of the Act dated 16.02.2010 had lapsed by operation of law and in the absence of a valid notification under Section 3-A(1), the notification under Section 3-D(1) and all consequential acquisition proceedings stand vitiated.
10. Per contra, it is the submission of the counsel for the respondents that one year time should be calculated from date of publication of notification under Section 3A(1) in the official gazette till the date of publication of notification of declaration of acquisition under Section 3-D(1) of the NH Act; and in the instant case, notifications of declaration of acquisition of land were published within a period of one year.
11. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record. Before dealing with the issues involved in these cases, it would be appropriate to extract Sections 3-A and 3-D of the NH Act,
3-A. 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.
3-D. Declaration of acquisition:- (1)Where no objection under sub-section (1) of Section 3-C 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 3-A.
(2) On the publication of the declaration under subsection (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 3-A 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 3-A 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 of by any other authority.
From a reading of Section 3-D(3) it is very clear that the notification in respect of declaration of acquisition of the land should be published under Section 3-D(1) in the Gazette within a period of one year from the date of issuance of notification under sub-section 1 of Section 3-A of the Act. But, the calculation of one year period made by the learned counsel for the petitioners by taking the date of publication of 3-D(1) notification is based on the newspaper publication and not by taking the date of 3-D(1) notification in the official Gazette. In all the above writ petitions which are arising out of the notification in S.O.399(E), the notification under Section 3-A(1) was published in the official Gazette of India on 17.02.2010 and the declaration notification under Section 3-D(1) was published in the official Gazette of India on 07.02.2011, that is within a period of one year from the date of 3-A(1) notification. Similarly, in respect of the writ petitions arising out of Notification No.670(E), the notification under Section 3-A(1) of the NH Act was published in the official Gazette of India on 23.03.2010 and the declaration notification under under Section 3-D(1) of the NH Act was published in the Gazette of Indian on 25.02.2011, ie., within a period of one year from the date of 3-A(1) notification. To calculate the period of one year from the date of publication of 3-A(1) notification in the official Gazette, instead of taking the date of publication of 3-D(1) notification in the official Gazette, the learned counsel for the petitioner had taken the date of publication of 3-D(1) notification in the newspapers into consideration. Hence, the calculation made by the petitioner is not correct. Therefore, I am not inclined to accept the submissions made by the learned senior counsel for the petitioners that since notification of declaration was not published within one year, subsequent acquisition proceedings are vitiated. I do not find any merit in the submissions made by the learned senior counsel for the petitioner.
12. It is yet another submission of the learned counsel for the petitioners that objections of the petitioners were not properly considered by the respondents and objections of the petitioners were mechanically rejected by the competent authority-cum-Special District Revenue Officer, Land Acquisition. Thus, according to the learned counsel for the petitioners, the rejection order passed by the competent authority under Section 3-C of the Act is not in conformity with the procedure.
13. But, from a careful perusal of the records, I find that by affording an opportunity of personal hearing to the petitioners, the order was passed in each case separately by the 3rd respondent and in the said rejection orders, he had clearly stated that this is a major project of national importance and the alignment was approved by Government of India after thorough examination of alternatives and other aspects; hence, there is no possibility to exclude the lands of the petitioners from acquisition.
14. Therefore, I am of the opinion that by properly considering the objections of the petitioner, by conducting enquiry and by following procedures as per National Highways Act, the objections of the petitioners were rejected by the competent authority. Therefore, it is incorrect to state that the order of rejection passed by the competent authority is not in conformity with the Act. I do not find any merit in the submission made by the learned counsel for the petitioners in this regard.
15. Mr.V.Raghavachari, learned counsel appearing for the petitioners, submitted that Section 3J of the NH Act 1956, says that the provisions of the Land Acquisition Act 1894 will not apply to the acquisition of land under the NH Act. But, when the said provision was challenged before the Punjab and Haryana High Court, the Division Bench of Punjab and Haryana High Court declared Section 3J of the National Highways Act 1956 as unconstitutional, being hit by Article 14 of the Constitution of India, by holding that Section 3J of the National Highways Act 1956 does not satisfy the test of reasonable classification permissible for the purpose of legislation to acquire land under the Acquisition Act and under the Act for public purpose, specifically when the Act is also framed by the same legislative, therefore, it is not permissible to discriminate between persons with regard to payment of compensation. In this regard, the learned counsel for the petitioners relied upon the judgment reported in (2011) 4 RCR (Civil) 375 (DB) [M/s.Golden Iron and Steel Forging Vs. Union of India and others].
16. For the same proposition, the learned counsel Mr.V.Raghavachari has also relied upon the judgment delivered by the learned single judge of this Court in W.P.Nos.15699 of 2010 etc (batch), dated 04.03.2011, [T.Chakrapani and others Vs. Union of India and others], wherein it has been held that Section 3J of the National Highways Act 1956 is violative of the Constitution as it does not satisfy the well known test of reasonable classification, permissible for enacting the legislation.
17. Thus, by relying upon the above said judgments, the learned counsel Mr.V.Raghavachari submitted that by virtue of the said judgments, now it cannot be said that the Land Acquisition Act, 1894 will not be applicable to the provisions of the National Highways Act. Under Section 11(A) of the Land Acquisition Act, 1894, the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration for the land acquisition. If no award is passed within two years period, the entire proceedings for the acquisition of the land shall lapse. It is further submitted by the learned counsel that there is a corresponding provision in Section 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013 which is equal to Section 11(A) of the Land Acquisition Act, 1984. As per Section 25 of the said Act, the Collector shall made an award within a period of twelve months from the date of publication of the declaration under Section 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. In the instant case, since no award has been passed till date, entire proceedings for the acquisition of the land has lapsed.
18. But, a perusal of the records produced on the side of the respondents, it is seen that as against the order of the learned Single Judge of this Court in W.P.Nos.15699 of 2010 etc (batch), dated 04.03.2011, [T.Chakrapani and others Vs. Union of India and others], an appeal has been filed before the Division Bench and in the appeal, stay has been granted. Similarly, so far as the judgment delivered by the Punjab and Haryana High Court is concerned, SLP has already been filed and the same is also pending. Therefore, the issue raised by the learned counsel for the petitioners has not reached the finality. Hence, I am not inclined to accept the submission made by the learned counsel for the petitioner that the provisions of the Land Acquisition Act 1894 shall apply to the acquisition of land under National Highways Act 1956. Further, so far as the National Highways Act is concerned, there is no time limit for passing award. Hence, the submission made by the learned counsel for the petitioners based on Section 11(A) of the Land Acquisition Act, 1894 as well as Section 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013, will not serve as a ground to quash the impugned acquisition proceedings.
19. In this regard, it would be appropriate to make a reference in the judgment reported in (2011) 12 SCC 69 [Union of India Vs. Kushala Shetty), wherein it has been held by the Hon'ble Supreme Cour as follows:-
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 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 the rest of rare cases, the particular project, if it is found to be exfacie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither has any violation of mandate of the 1956 Act been established nor has the charge of malice in fact been proved. Therefore, the order under challenge cannot be sustained. ?
From a reading of the dictum laid down in the above said judgment, I am of the opinion that the court can nullify the acquisition of land, in the rarest of rare cases, if it is found to be exfacie contrary to the mandate of law or tainted due to mala fides. But, in the instant case, no such ground was raised. Only on certain technical grounds, these writ petitions have been filed, which are also found to be not correct. Therefore, I do not find any merit in the writ petitions and all the above writ petitions are liable to be dismissed.
For the foregoing reasons, all the above writ petitions are dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.