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2019 DIGILAW 314 (KER)

Dharmaratnam v. Union of India

2019-04-02

A.MUHAMED MUSTAQUE

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JUDGMENT : In these cases, the principle issue that arises for consideration is whether a notification issued under S.3A of the National Highways Act, 1956 to acquire a land for the purpose of National Highway is illegal or not in the absence of a declaration under S.2 of the Act. Apart from that, the petitioner also have raised a claim for compensation for the land acquired for National Highway in terms of provisions under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30/2013). The payments of compensation, rehabilitation, resettlement and modality of payment of compensation also arise for consideration in these Writ Petitions. 2. I shall advert to the challenge made by the petitioners in regard to the notification issued under S.3A. This notification is issued for widening an existing highway, which was originally notified as National Highway. Thereafter, it was de notified. The stretch is forming part of Kuttipuram-Edapally NH-17. As seen Ext.P9 produced in W.P.(C) No.42170/2018, this has been de notified by the Ministry of Road and Transport Highway as per the proceedings dated 05.03.2014. Therefore, the argument is that once highway has been de notified, no proceedings can be initiated under the National Highways Act, 1956 to acquire a land to widen that highway. According to the petitioners remedy is to invoke provisions of Act 30/2013 to acquire the land. The validity of this notification is questioned. 3. The National Highways Act, 1956 was enacted by the Parliament for declaring certain highways existing in the nation as national highway. The highways enumerated in the Schedule are declared as national highway by virtue of S.2. Nowhere in the original enactment provides a provision for acquiring land for the purpose of national highway. Thereafter, by way of an amendment in the year 1997, certain provisions are incorporated conferring powers to acquire the land for the purpose of formation of National Highway. The stretch now forming part under the National Highway, pertaining to the petitioners land appears to have been originally declared as National Highway and thereafter, de notified. The question is whether for the purpose of issuance of notification under S.3A such highway already exist or any land which required for such formation of National Highway will have to be declared under S.2 as National Highway Act. These arguments appears to be misconceived. The question is whether for the purpose of issuance of notification under S.3A such highway already exist or any land which required for such formation of National Highway will have to be declared under S.2 as National Highway Act. These arguments appears to be misconceived. S.2 only refers about declaration of national highway which are included in the schedule by notification issued by the Central Government. Sections 2 and 3 have no inter play in as much as that S.3A is not depend upon notification issued by the Central Government under S.2. S.3A confers power to acquire land for the purpose of national highway. Therefore, after forming the highway, the Central Government can issue a notification to include such highway as a national highway by issuing a notification under S.2. It is not necessary that there should be a notification under S.2 for the purpose of invoking S.3A. The purpose of S.3A is conferring power on an authority to acquire land for the purpose of national highway. Therefore, the ultimate purpose, if it is for national highway, that public purpose would sub-serve the object of the National Highways Act. The declaration is only consequential act to be done in terms of S.2. In view of the fact that S.3A does not stipulate that there should be a declaration under S.2 to initiate an action under S.3A, I find no merit in the argument raised as above by the petitioner. 4. In regard to the compensation claimed by the petitioner under the Act 30/2013, S.105(3) of the above Act specifies that Central Government by notification may extend the provisions of the Act for relating to the determination of the compensation in accordance with the First Schedule and rehabilitation and resettlement in Second Schedule and Third Schedules being beneficial to the affected families. In this case, admittedly, the Central Government issued a notification in terms of S.105(3). Therefore, all benefits flowing out of the Act 30/2013 would also enure to the benefits of affected families, who are affected by the acquisition of land for the purpose of widening of the National Highway. S.19 of the Act mandates the publication of declaration of summary of rehabilitation and resettlement. Though this provision is not specifically made applicable to the National Highways Act. These provisions have to be read in the light of notification to be issued under 105(3). S.19 of the Act mandates the publication of declaration of summary of rehabilitation and resettlement. Though this provision is not specifically made applicable to the National Highways Act. These provisions have to be read in the light of notification to be issued under 105(3). Once it is declared that the provisions of Act 30/2013, would apply for awarding compensation and resettlement, necessarily, it has to be understood all such procedure as referred under S.19 would also form part of compensation to be awarded under the National Highways Act. S.19(2) states that the Collector shall publish the summary of the rehabilitation and resettlement scheme along with such declaration. 5. The declaration under the National Highways Act, after hearing the objections will have to made in terms of under S.3D. It states that the declaration of a decision. Nowhere it is stipulated that such procedure under S.19 will have to be followed. However, consequent upon issuing a notification under S.105(3) of Act 30/2013, it has to be understood the declaration under S.3D also will have to be followed such procedure as referred under S.19 of Act 30/2013. The purpose of issuing notification under S.105(3) of Act 30/2013 is to confer such benefits as flowing out of Act 30/2013, to such affected families. Therefore, if there are claims of rehabilitation and resettlement, the S.3D notification should also contain such measures as provided under S.19 of Act 30/2013. This is the only possible way of looking at a notification to be issued under S.3D in the light of notification issued under S.105(3) of the Act 30/2013. Therefore, it is made clear that without furnishing such details as contemplated under S.19(2), no notification under S.3D shall be published under the National Highways Act in respect of the petitioners property. 6. The learned counsel for the petitioners would submit that the land in excess of the land mentioned in the notification is proposed to be acquired for the purpose of widening the national highway. The learned Standing counsel would submit that if there is any land acquired in excess, certainly, they will resort to issue a fresh S.3A notification under the National Highways Act. That submission is recorded. In the light of the above observations, the Writ Petitions are disposed with the following directions: (i) The petitioners’ challenge regarding the validity of S.3A notification fails. That submission is recorded. In the light of the above observations, the Writ Petitions are disposed with the following directions: (i) The petitioners’ challenge regarding the validity of S.3A notification fails. (ii) The S.3D notification under the National Highways Act shall follow such procedure as contemplated under S.19(2) of the Act 30 of 2013, before its publication. (iii) No land shall be taken from the petitioners in excess of land notified under S.3A without issuing a fresh notification under S.3A. No costs.