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2009 DIGILAW 3328 (MAD)

Viswanathan etc v. Union of India

2009-08-24

S.RAJESWARAN

body2009
COMMON ORDER:- Since the issue involved in all the writ petitions are one and the same, a common order is being passed to dispose of the writ petitions. 2. In all the writ petitions, the petitioners are challenging the notification issued by the first respondent under Sec.3A(1) of the National Highways Act 1956 (Act 48 of 1956). 3. For the sake of convenience, I am referring to the facts as contained in W.P.No.29238 of 2007. 4. It is admitted by both the sides that though the writ petitioners and their extent of lands in each petition is different, the grievance and the grounds raised are identical in all the writ petitions. 5.The petitioner in W.P.No.29238 of 2007 is having a small extent of land 81.1 Sq.M. of land in S.No.547/3 in Oyyangadu Village, Erode District. He constructed a small building on the land for his residence and also for his business. The lands are situated adjoining Salem to Coimbatore Highway No.47. In August 2006, the officials from the Highways Department came to their Village and measured the area. As per the measurement, only a small portion of the petitioner's land sought to be acquired and the entire portion of the land under the encroachment of a mill was marked. It is the petitioner's contention that due to the objection of the mill owner, there was another survey conducted within a few months and as per the second measurement, the entire lands of the mill were left untouched and the entire lands of the petitioner and other similarly placed persons were sought to be acquired. According to the petitioner, the second measurement was done after the notification published under Sec.3A. 6. The petitioner states that along with other land owners, he also gave a joint representation to the second respondent on 29.8.2006. After such representation, the second respondent issued a notice to their Villager Perumalsamy for his appearance, but no such notice was given to the petitioner and other land owners. Their representation was rejected and now award enquiry is scheduled to commence on and from 5.09.2007. 7. After such representation, the second respondent issued a notice to their Villager Perumalsamy for his appearance, but no such notice was given to the petitioner and other land owners. Their representation was rejected and now award enquiry is scheduled to commence on and from 5.09.2007. 7. At this stage, all the writ petitions were filed on the ground that (1) the action of the respondents in acquiring the lands of the petitioners is malafide and it is only in favour of the mill owner; (2) their objections were mechanically rejected and (3) the respondents failed to give any hearing which is mandatory as per the National Highways Act 1956. 8. The respondents entered appearance and filed a Counter affidavit. 9. In the Counter affidavit, it is stated by the Project Director of the National Highways Authority of India that the Government of India by notification dt.13.12.2005 nominated the District Revenue Officer, Erode District as Competent authority and specified the Villages in Erode and Perundurai Taluks for widening of Salem – Coimbatore Section of N.H.47. The first respondent in the notification under Sec.600 dt.12.06.2006 issued notification under Sec.3A(1) of National Highways Act. Consequently, the publication under Sec.3A(3) was effected in "The Hindu" on 10.08.2006 and "Daily Thanthi on the same day. In the said publication, the land specified by the writ petitioner was also notified. As the petitioner did not file any objection, the 3(D) publication was issued and publication of 3(D)(1) Declaration was made on 07.06.2001 and the lands now vested with the Central Government. It is stated by the first respondent that an extent of 6250 Sq.m. belonging to the mill has also been acquired for widening the road. The award enquiry was held on 06.09.2007 and the petitioner appeared on 06.09.2007 and sought for 10 days time for the production of documents. Thereafter, the writ petition has been filed by the petitioner. 10. It is specifically stated by the first respondent that the petitioner did not give any objection through Thiru Perumalsamy. According to the first respondent one Thiru Madeswaran and another Thiru Balakrishnan who filed separate writ petitions (W.P.NoS.29241 of 2007 and 29933 of 2007 respectively) gave joint petition represented by Thiru Perumalsamy. After enquiry, the second respondent passed an order dt.11.10.2006 rejecting their objection. According to the first respondent one Thiru Madeswaran and another Thiru Balakrishnan who filed separate writ petitions (W.P.NoS.29241 of 2007 and 29933 of 2007 respectively) gave joint petition represented by Thiru Perumalsamy. After enquiry, the second respondent passed an order dt.11.10.2006 rejecting their objection. Therefore, Thiru Perumalsamy alone was called for enquiry and his objection was heard on behalf of the above said two persons and considered. 11.It is contended by the first respondent that after publication of 3(D)(1) declaration under Sec.3(D)(2) of the Act the lands are vested with the Central Government and the petitioner cannot challenge the acquisition proceedings. 12. Heard the learned counsel for the petitioners and Mr.P.Wilson, learned Additional Advocate General for the respondents. I have also gone through the entire documents including the Counter affidavit filed by the respondent. 13. The learned counsel for the petitioners submits that the entire action of the respondents is malafide and vindictive in nature with the sole intention of saving the lands belonged to the mill and thereby the petitioner's valuable lands have been acquired depriving of their property, that too, in the altered alignment which was pressed into service to help the mill owner alone. He further submitted that no notice was given to them to participate in the enquiry and even their representation was not properly considered. 14. Per contra, the learned Additional Advocate General while reiterating the averments contained in the counter affidavit submits that the petitioner has miserably failed to establish their case of malafide and even on other grounds also, there are no merits and therefore, the writ petitions are liable to be dismissed. He further pointed out that an award has also been passed in the matter and therefore, nothing survives in the writ petitions. In support of his submissions, he relied on the following decisions: 1. (1996)6 SCC 445 (State of Rajashtan and others Vs D.R.Laxmi and others) 2. (2000)2 SCC 48 (Municipal Council, Ahmednagar and another Vs Shah Hyder Beig and others) 3. (2002)1 SCC 188 (Union of India and another Vs Ashutosh Kumar Srivastava and another) 4. (2004)11 SCC 213 (Delhi Development Authority and another vs UEE Electricals Engg. (P) Ltd. and another) 5. (2003)4 SCC 289 (Federation of Railway officers Association and others Vs Union of India) 15. I have considered the rival submissions carefully with regard to facts and citations. 16. (2004)11 SCC 213 (Delhi Development Authority and another vs UEE Electricals Engg. (P) Ltd. and another) 5. (2003)4 SCC 289 (Federation of Railway officers Association and others Vs Union of India) 15. I have considered the rival submissions carefully with regard to facts and citations. 16. First, let me consider the first limb of the arguments made by the learned counsel for the petitioner, according to which, the entire action and conduct of the respondents in acquiring the lands of the petitioner is tainted with malafide and it was only to favour the mill owner. As rightly pointed out by the learned Additional Advocate General, this was only a very vague allegation without any materials in support of the same. In fact, it was specifically pointed out in the counter affidavit filed on behalf of the respondents that an extent of 6250 sq.mtrs in S.No.2/2 belonging to Kandasamy Spinning Mill has been acquired for widening of NH-47 Road. Further, in a matter of this nature, this Court is not equipped with technical knowledge to decide which alignment is proper for the purpose of widening the road and it is for the technical people to decide the feasibility and desirability of a particular alignment. 17. In (2004)11 SCC 213 (cited supra), the Hon'ble Supreme Court observed as under: "11. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality" and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Service Unions Vs. Minister for the Civil Service (commonly known as CCSU case) 12. Courts are slow to interfere in matters relating to administrative functions unless decision is tainted by any vulnerability such as lack of fairness in procedure, illegality and irrationality. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. 14. The law is settled that in considering challenge to administrative decisions courts will not interfere as if they are sitting in appeal over the decision. 16. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. 14. The law is settled that in considering challenge to administrative decisions courts will not interfere as if they are sitting in appeal over the decision. 16. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (See.S.partap Singh V. State of Punjab). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. (As noted by this Court in E.P.Royappa V. State of T.N.)" 18. From the above, it is very clear that it is for the petitioner to prove that respondents are guilty of misusing of their power and their action is illegitimate and tainted with malafide. In the present case, this burden which is heavily resting on the shoulders of the petitioner has not been discharged at all. 19. In (2003)4 SCC 289 (cited supra), the Hon'ble Supreme Court observed as under: "12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the Court will not interfere with such matters." 20. In the above decision, the Hon'ble Supreme Court has clearly held that on matters requiring technical expertise, the Court would leave the matter for the decision of those who are qualified to address the issues. 21. In (2002)1 SCC 188 (cited supra), the Hon'ble Supreme Court held that there is always a presumption in favour of the administration that it exercises powers in good faith and for public benefit and the burden is on the individual to produce sufficient materials to suggest that the action of the authorities is tainted with malafide and it is not easy to discharge the burden. 22.In view of the above, I am rejecting the contention of the petitioner that the entire action of the respondents in acquiring the lands of the petitioner is tainted with malafide and it is only to favour the Mill owner. 23. Now, let me consider the second limb of the arugment of the learned counsel for the petitioner that, their objections were not properly considered and were rejected mechanically by the second respondents. 24. Now, it is established before me that no objections were put forward by the petitioner herein as claimed by him and in fact a joint petition was given by two other persons by name Tvl. Madeswaran and Balakrishnan and they were represented by one Thiru Perumalsamy. This joint petition is meant for only these two persons and therefore, Thiru Perumalswamy alone was called for enquiry to submit the objections on behalf of the two persons. Therefore, the petitioner cannot contend that he has submitted his objections nor he can claim that the joint petition given by the other two persons was given on behalf of him also. Hence, there was no merit in this contention also. 25. Therefore, the petitioner cannot contend that he has submitted his objections nor he can claim that the joint petition given by the other two persons was given on behalf of him also. Hence, there was no merit in this contention also. 25. The last limb of the argument of the learned counsel for the petitioner is that he was not given any hearing which is mandatory as per the National Highways Act. This is also without any merit because when admittedly no representation was given by the petitioner objecting to the acquisition, he is not entitled to any hearing and therefore, it cannot be said that the mandatory provisions of the Act are violated by the respondents. 26. Further, it was argued on behalf of the respondents that the petitioner after participating in the Award enquiry sought time for producing certain documents and thereafter, he filed the writ petition challenging the 3A(1) Notification. It is pointed out by the learned Additional Advocate General that publication was issued under Sec.3(D)(1) on 7.6.2007 and only thereafter, the writ petition has been filed without challenging the declaration dated 07.06.2007. He further pointed out that once declaration was made, the lands vested with the Government and thereafter, it cannot be challenged. He further urged that Award was also passed and therefore, nothing survives for challenge before this Court. 27. I find force in the submissions made by the learned Additional Advocate General. 28. In (2002)2 SCC 48 (cited supra), the Hon'ble Supreme Court held that after the Award is passed, no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. 29. In (1996)6 SCC 445 (cited supra), the Hon'ble Supreme Court while dealing with the Land Acquisition Act, 1894, held that under the Scheme of that Act, after the possession of the land was taken either under Sec.17(2) or Sec.16, the land stands vested with the State free from all encumbrances and therefore, there is no provision under the Act to divest the title which was validly vested with the State. 30. It is also necessary to refer to certain provisions of the National Highways Act 1956 to decide the issue. "3A. 30. It is also necessary to refer to certain provisions of the National Highways Act 1956 to decide the issue. "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 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. Explanation: 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 of 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. (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 91) hall not be called in question in any court or by any other authority. 3F. Right to enter into the land where land has vested in the Central Government Where the land has vested in the Central Government under section 3D, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance,management or operation of a national highway or a part thereof, or any other work connected therewith." 31. From the above provisions, it is very clear that when the Central Government is satisfied that for a different purpose any land is required, it may by notification declare its intention to acquire such land and the notification is to be published in two local newspapers out of which one shall be in a vernacular language. Any objections should be submitted to the competent authority in writing within 21 days from the date of publication of the notification and after hearing of such objections and after making such further enquiry, the competent authority by order either allow or disallow the objections. The order made by the competent authority under Sub Section 2 of Sec.3(c) is final. As per Sec.3(D), when no objection is received or when the objection is rejected, the competent authority shall submit a report to the Government and on receipt of such report, the Government shall declare by notification that the land should be acquired for the purpose mentioned in Sub Sec.1 of Sec.3(A). As per Sec.3(D), when no objection is received or when the objection is rejected, the competent authority shall submit a report to the Government and on receipt of such report, the Government shall declare by notification that the land should be acquired for the purpose mentioned in Sub Sec.1 of Sec.3(A). On the publication of the declaration, under Sub Sec.(1) of 3(D), the land shall vest absolutely in the Central Government free from all encumbrances. Once the land as vested with the Central Government under Sec.3(D), it shall be lawful for the Government to enter and do other act necessary for carrying out the work. 32. In the light of the above provisions of the Act, if the facts of the present case are considered, I am of the considered view that all the formalities and the relevant procedure was properly followed and a declaration of acquisition was also issued under Sec.3(D) of the Act. That means on and from 7.6.2007, when the declaration was made under Sec.3(D)(1), the land absolutely vested with the Central Government. But, the writ petitions were filed after such declaration was made, that too, on 03.09.2007 without challenging the 3(D)(1) declaration. Therefore, as rightly pointed out by the learned Additional Advocate General, when the lands are absolutely vested with the Government and when the 3(D)(1) declaration was not at all challenged, it is not open to the petitioner to challenge the Notification issued under Sec.3A(1) of the Act. 33. Therefore, I do not find any merits in the writ petition and the same is dismissed. No cost. Connected miscellaneous petitions are also dismissed. 34. In view of the dismissal of the W.P.No.29238 of 2007, all the other writ petitions are also dismissed, as the issue involved is one and the same. No cost. Connected miscellaneous petitions are also dismissed.