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2021 DIGILAW 241 (AP)

Sanna Janardhan v. Union of India

2021-04-06

NINALA JAYASURYA

body2021
ORDER : 1. These two writ petitions arise under the provisions of the National Highways Act, 1956 (hereinafter referred to as ‘the NH Act’), involving same issues and accordingly, they are disposed of by this common order. 2. The petitioners challenge the notification issued under Section 3A of the NH Act and the consequential declaration issued under Section 3D of the said Act as also the notification issued under Section 3G of the NH Act contending, interalia,that the same are illegal, arbitrary, violative of the principles of natural justice and contrary to the mandatory procedure prescribed under the said Act and sought to declare the order of respondent No.3 dated 09.02.2018 rejecting all the objections of the petitioners in toto without proper consideration and providing proper opportunity of hearing as per Section 3C(2) of the NH Act as illegal and improper and consequently to set aside the same and pass such other orders as may be deemed fit. 3. As per the brief facts set out in the affidavits filed in support of the respective writ petitions, the petitioners are the residents of different villages and own different extents of lands in different survey numbers, the details of which are stated in the said affidavits. They eke out their livelihood by doing agriculture and they are small farmers solely depending upon agricultural income. 4. A notification issued under Section 3A of the NH Act vide S.O.3929(E) dated 19.12.2017 proposing acquisition of lands for construction of NH-140 at KM 0+00 to KM 41+800 from Kukkalapalli of Yadamarri Mandal to Mallavaram of Chandragiri Mandal of Chittoor District was published in ‘Andhra Jyothi’ Telugu daily newspaper on 02.01.2018 and in ‘The Hindu’ English daily newspaper on 03.01.2018. The lands of the petitioners were shown in the said notification without giving minimum particulars in respect of the same and it was stated therein that the interested persons may file their objections within 21 days from the date of issue of the notification under Section 3A(1) of the NH Act and that the same would be enquired into by a competent authority under Section 3C(2) of the NH Act. Pursuant to issue of such notification, the petitioners filed their objections within the stipulated period and the enquiry under Section 3C(2) of the NH Act was fixed on 09.02.2018. Pursuant to issue of such notification, the petitioners filed their objections within the stipulated period and the enquiry under Section 3C(2) of the NH Act was fixed on 09.02.2018. Though the petitioners attended the office of respondent No.3, he did not afford any personal hearing to the petitioners as contemplated under the provisions of the NH Act and passed an order on the same day i.e., on 09.02.2018 rejecting all the objections, making the enquiry an empty formality. Subsequently, respondent No.3 issued a declaration under Section 3D of the NH Act through respondent No.1 on 24.03.2018 declaring that the lands in question are required for the purposes stated therein. Thereafter, respondent No.3 issued a notification under Section 3G of the NH Act on 25.04.2018 granting only three (3) days time to produce the relevant documents with regard to the claims of the interested persons i.e., by 28.04.2018. 5. Alleging that the entire procedure adopted by the respondents right from issuance of the notification under Section 3A(2) of the NH Act, passing of the order under Section 3C(2) of the NH Act and the subsequent proceedings are not sustainable in law, the present writ petitions are filed. 6. Heard Mr.P.Gangaiah Naidu, learned senior counsel representing Mr.N.Bharath Babu, learned counsel for the petitioners, Mr.N.Harinath, learned Assistant Solicitor General of India appearing for respondent No.1, Mr.S.S.Varma, learned standing counsel for National Highways Authority of India (NHAI) appearing for respondent Nos.2 and 4 and learned Assistant Government Pleader for Land Acquisition appearing for respondent No.3. 7. (i) Mr.P.Gangaiah Naidu, learned senior counsel appearing for the petitioners, inter alia, submits that the notification issued under Section 3A(2) of the NH Act is vague and lacking in minimum particulars regarding the details of the owner of the land etc., He submits that though detailed objections were filed by the petitioners and sought for personal hearing, the same was not afforded to them. He further adds that though the petitioners were informed that enquiry under Section 3C(2) of the NH Act would be conducted on 09.02.2018 and they attended the office of respondent No.3 on the said date, no personal hearing as per their request and in terms of the provisions of the NH Act was afforded to them and on the other hand, they were necked out and thereafter, respondent No.3/competent authority passed the impugned order on the same day in utter haste, rejecting the objections of the petitioners in a casual and cryptic manner. He submits that the said action of respondent No.3 in not affording the opportunity of personal hearing to the petitioners is not only contrary to the provisions of the NH Act, but also constitutes violation of the principles of natural justice. He also submits that though a counter-affidavit was filed by respondent No.3/the competent authority, there is no specific denial to the averments that the petitioners were necked out from the office of respondent No.3, that too without affording the opportunity of personal hearing and the same are, therefore, deemed to have been admitted. He further submits that a duty is cast on respondent No.3/the competent authority to consider each and every objection raised by the petitioners, that too objectively and the reasons for rejection thereof should be in detail. He submits that respondent No.3 acted in a mechanical manner and passed the impugned order rejecting the petitioners’ objections without dealing with the same in a proper perspective. (ii) While placing reliance on the judgments of the two Honourable Division Benches in Bhimavarapu Giridhar Kumar Reddy v. Union of India, 2012 (6) ALT 651 (DB) and Noushad Ali v. Secretary, Ministry of Transport Highways & others, Writ Appeal Nos.885 of 2016 and 994 of 2017 dated 31.01.2018, the learned senior counsel submits that in similar circumstances, where an opportunity of hearing was not afforded in terms of the provisions under the NH Act, the Division Benches set aside the orders of the competent authority and also the consequential declaration under Section 3D of the NH Act. He submits that the said judgments apply on all fours to the facts of the present writ petitions and therefore, the petitioners are entitled to the reliefs sought for. He submits that the said judgments apply on all fours to the facts of the present writ petitions and therefore, the petitioners are entitled to the reliefs sought for. The learned senior counsel also places reliance on the judgment of the Honourable Supreme Court in Competent Authority v. Barangore Jute Factory and Ors., (2005) 13 SCC 477 to buttress his contentions. 8. The learned standing counsel for the NHAI appearing for respondent Nos.2 and 4, on the other hand, submits that the notification issued under Section 3A of the NH Act contains a reference that the plans in respect of the lands proposed to be acquired are available with the competent authority and the same would meet the requirement of law in the light of the judgment of the Honourable Supreme Court in Barangore Jute Factory’s case (supra 3). He further submits that the petitioners were informed about the date of enquiry and after conducting the enquiry on 09.02.2018, further proceedings under the NH Act were initiated and therefore, there is no irregularity or illegality committed by the concerned authorities in the matter. Accordingly, he submits that no case is made out by the petitioners warranting interference by this Court. 9. The learned Assistant Government Pleader for Land Acquisition appearing for respondent No.3, while supporting the order of respondent No.3 rejecting the objections of the petitioners, submits that most of the objections are with regard to request for higher compensation and also with regard to alignment. While stating that insofar as the alignment is concerned, it is a technical aspect, which is not within the realm of the competent authority, she submits that insofar as the higher compensation is concerned, the petitioners have remedies under the NH Act. Refuting the contention with regard to denial of opportunity of hearing to the petitioners, she submits that since the competent authority conducted enquiry on 09.02.2018, the same would satisfy the requirement of affording an opportunity of being heard to the petitioners. Learned Assistant Government Pleader also places reliance on the judgment of the Honourable Supreme Court in Union of India v. Kushalashetty, (2011) 2 SCC 69 and submits that road works for National Highways involves technical issues that fall within the purview of National Highways Authority of India which have technical expertise and cannot be interfered with. Learned Assistant Government Pleader also places reliance on the judgment of the Honourable Supreme Court in Union of India v. Kushalashetty, (2011) 2 SCC 69 and submits that road works for National Highways involves technical issues that fall within the purview of National Highways Authority of India which have technical expertise and cannot be interfered with. She further submits that by virtue of the declaration issued under Section 3D of the NH Act, the lands were already vested with the Central Government, and as notification under Section 3G of the NH Act had already been issued and awards were passed, the petitioners can as well workout their remedies under the relevant provisions of the NH Act. It is also submitted that in view of the interim orders granted by this Court, the road works have come to a standstill and unless the interim orders are vacated, the public at large would suffer apart from increase in the cost of the project. She further submits that the authorities concerned have complied with the provisions of the NH Act scrupulously and therefore, the contentions contra are untenable and the writ petitions are accordingly liable to be dismissed. 10. On hearing the rival contentions and on a thoughtful consideration to the issues involved, the points that arise for adjudication in these writ petitions are: (1) Whether the notification issued under Section 3A of the NH Act without minimum particulars is sustainable and whether the order dated 09.02.2018 passed by the competent authority without affording an opportunity of personal hearing to the petitioners is contrary to the provisions of the NH Act and therefore the consequential proceedings are also invalid? (2) Whether the competent authority is required to consider each and every objection and the order as passed by him impugned in the present writ petitions is not sustainable in law on the ground that all the objections were not considered? (3) If so, to what relief? 11. (2) Whether the competent authority is required to consider each and every objection and the order as passed by him impugned in the present writ petitions is not sustainable in law on the ground that all the objections were not considered? (3) If so, to what relief? 11. Point No.1: As the prime contention advanced on behalf of the petitioners is denial of opportunity of personal hearing to them, it would be appropriate to deal with the same first and with reference to the said plea, the relevant provisions of the NH Act may be extracted hereunder: “Section 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).” 12. It may also be pertinent to mention here that any order made by the competent authority under Sub-Section (2) of Section 3C of the NH Act shall be final as provided under Section 3C(3) of the NH Act. 13. Further, Section 3D(1) of the NH Act contemplates that the competent authority shall, on disallowing the objections under Section 3C(2) of the NH Act, as soon as may be, submit a report 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 of the NH Act. Thereafter, as per the Section 3D(2) of the NH Act on publication of Declaration under Sub-Section (1) of Section 3D of the NH Act, the land vests absolutely in the Central Government free from all encumbrances. 14. Thereafter, as per the Section 3D(2) of the NH Act on publication of Declaration under Sub-Section (1) of Section 3D of the NH Act, the land vests absolutely in the Central Government free from all encumbrances. 14. Thus, a reading of the above referred provisions of the NH Act would make it clear that on receipt of objections within the time stipulated, the competent authority shall give objector an opportunity of being heard, either in person or by a legal practitioner, allow or disallow the objections by an order, after hearing all such objections and after making such further enquiry, if any. 15. In Bhimavarapu Giridhar Kumar Reddy’s case (supra 1), a Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad on thorough consideration of factual and legal position, while opining that affording of opportunity of hearing to the persons whose lands are proposed for acquisition under the NH Act mandated by Section 3C(1) of the NH Act is neither a ritual nor an empty formality, held that failure to provide an opportunity of hearing is an illegality and on account of the same, all the proceedings subsequent to the stage under Section 3C(1) of the NH Act are void and inoperative and the fact of publication of a Declaration under Section 3D(1) of the NH Act would not cure that fatal infirmity. The Honourable Division Bench, while taking note of the fact that an award was also passed, set aside even the notification under Section 3G of the NH Act. 16. Referring to the provisions of the NH Act, in the judgment relied on by the learned senior counsel in Noushad Ali’s case (supra 2), a Division Bench of the erstwhile common High Court of Judicature for the State of Telangana and the State of Andhra Pradesh at Hyderabad, while dealing with the facts and circumstances arising in the said case, set aside the order of the competent authority passed under Section 3C(2) of the NH Act and the consequential proceedings under Section 3D of the NH Act. The Honourable Division Bench interfered with the order of the learned Single Judge, interalia,holding that the writ petitioner was not afforded a reasonable opportunity of oral hearing as stipulated under the second limb of Section 3C(2) of the NH Act and also observed that the objection regarding vagueness of preliminary notification issued under Section 3A(1) of the NH Act can also be urged before the competent authority during the course of oral hearing, while not inclined to examine the validity of the same. 17. Considering the contentions of the learned senior counsel appearing for the petitioners in the light of the expression of the Honourable Division Benches referred to above, in these writ petitions, in fact, while submitting objections, the petitioners sought for a date to explain their objections and grievances, if their lands are taken for the purpose of National Highways. As seen from the material available on record, no notice of personal hearing in terms of the request made by the petitioners was issued. Further, as contended by the learned senior counsel appearing for the petitioners, though it appears a date was fixed for enquiry, no opportunity of personal hearing in terms of the provisions of Section 3C(2) of the NH Act has been afforded to the petitioners. In this regard, the specific contention of the petitioners that they are necked out on the date of enquiry without hearing them remains un-rebutted. Under the said circumstances, this Court is of the considered view that the petitioners have not been afforded an opportunity of personal hearing and the stand of the respondents that an enquiry was conducted on 09.02.2018 would not meet the legal requirement of affording an opportunity of hearing. Therefore, the order of respondent No.3 dated 09.02.2018 without affording an opportunity of hearing to the petitioners is not valid in law inasmuch as the same is in violation of the provisions of the NH Act. 18. The Honourable Supreme Court in Barangore Jute Factory’s case (supra 3), interalia,held in paragraph 13 thereof that “if the initial notification is bad, all steps taken in pursuance thereof will fall with it. Vesting under Section 3D(2) arises on a declaration by the Central Government under Section 3D(1). The declaration is the result of disposal of objections under Section 3C. The Honourable Supreme Court in Barangore Jute Factory’s case (supra 3), interalia,held in paragraph 13 thereof that “if the initial notification is bad, all steps taken in pursuance thereof will fall with it. Vesting under Section 3D(2) arises on a declaration by the Central Government under Section 3D(1). The declaration is the result of disposal of objections under Section 3C. Each step is a consequence of earlier step and in that sense all the steps are linked to initial notification for acquisition under Section 3A(1) and (2)”. In the said judgment, the Honourable Supreme Court, while holding that the initial notification was not in accordance with law and when the foundation goes rest of the edifice falls, opined that the invalid notification under Section 3A of the NH Act renders all subsequent steps invalid. In the light of the judgments of the Honourable Division Benches referred to above and the expression of the Honourable Supreme Court referred to supra, since the legal requirement of hearing was not afforded to the petitioners in the present writ petitions, the order dated 09.02.2018 passed by the competent authority is not sustainable and the consequential proceedings issued under Section 3D and Section 3G of the NH Act are declared invalid. 19. However, so far the contention to the effect that the notification issued under Section 3A of the NH Act is lacking in minimum particulars and therefore it was improbable to file objections, in the considered opinion of this Court, such a plea is not available to the petitioners as admittedly they filed objections and no such objection was found to have been raised as seen from the material on record. In Noushad Ali’s case (supra 2), as a specific objection was raised that the notification under Section 4(1) of the NH Act was vague, the Honourable Division Bench directed consideration of the same, while remanding the matter to the competent authority. Such is not the case here. Even otherwise, as seen from the notification issued under Section 3A of the NH Act in the present writ petitions, there is a reference to availability of plans with regard to the lands proposed to be acquired and in the light of the expression of the Honourable Supreme Court in Barangore Jute Factory’s case (supra 3), the same would meet the requirement of law. The relevant observation of the Honourable Supreme Court, upholding the view of Calcutta High Court in the said case, reads thus: “9…..the impugned judgment of High Court emphasizes the need for a plan. It is clear from the judgment of the High Court that no plan was produced before it. The absence of any reference to a plan in the Notification and infact non-availability of any plan linked to the notification, fortifies argument that the description of the land under acquisition in the impugned notification fails to meet the legal requirement of a brief description of the land which renders notification invalid……” In the present writ petitions, no plea was taken to the effect that plans were not available. Therefore, the contentions raised by the petitioners that the notification is not valid inasmuch as the minimum particulars about the details of the owner of the land etc., are not mentioned and thereby, filing of the objections was improbable cannot be accepted. 20. Hence, the relief sought for by the petitioners to set aside the notification issued under Section 3A of the NH Act is rejected. Point No.1 is answered accordingly. 21. Point No.2: Though this Court is not required to examine the other aspects with regard to consideration of the objections by the competent authority in view of the conclusions arrived at while answering point No.1, however, it is deemed appropriate to deal with the same in view of the specific contentions raised by the learned senior counsel appearing for the petitioners. 22. Section 3D(1) of the NH Act contemplates submission of a report by the competent authority to the Central Government after disallowing the objections, which in turn would facilitate the review of the proposal with regard to the acquisition of land in the light of the objections raised. Therefore, unless the competent authority deals with each and every objection and consider the same objectively, the order passed by the competent authority cannot carry correct picture to the Central Government, to enable it to take a decision either to change the alignment or otherwise, in its own wisdom. Therefore, in the absence of consideration of all the objections objectively, this Court is of the opinion that the order passed by the competent authority rejecting the objections of the petitioners in a casual manner would not be valid in the eye of law. Therefore, in the absence of consideration of all the objections objectively, this Court is of the opinion that the order passed by the competent authority rejecting the objections of the petitioners in a casual manner would not be valid in the eye of law. As held by the Honourable Division Bench in Noushad Ali’s case (supra 2), “the power to allow or disallow the objections under Section 3C(2) of the NH Act cannot be exercised mechanically. Such an order must reflect the competent authority having considered the objections and to have rejected them for just and valid reasons”. The Honourable Division Bench further held “it is only if reasons are assigned by the competent authority, for disallowing the objections put-forth by a land owner, would it be possible for this Court, in the exercise of its powers of judicial review under Article 226 of the Constitution of India to determine whether the consideration of the objections is valid or otherwise.” 23. Thus, the legal position is clear and in view of the conclusion arrived at while answering point No.1 that the order passed by the competent authority was invalid on the ground that no opportunity of personal hearing was afforded to the petitioners, this Court deems it not necessary to dwell on merits of the same. Point No.2 is answered accordingly. 24. Point No.3: In the light of the conclusions as set out above, this Court is required to grant appropriate reliefs in the facts and circumstances of the present writ petitions. This Court is conscious of the fact that the delay in execution of the project works would result in increase of cost by leaps and bounds. Though it is a factor to be kept in mind while dealing with the matters like the present writ petitions, as non-compliance with the statutory requirements goes to the root of the matters, the same cannot be countenanced, except in rarest of the rare cases, where most of the road works were completed and the land owners can be compensated suitably in terms of the judgment of the Honourable Supreme Court in Barangore Jute Factory’s case (supra 3). In the present writ petitions, by virtue of the interim orders, the respondents could not proceed with the road works and the petitioners appear to be in possession of the lands and payment of compensation in terms of the expression of the Honourable Supreme Court may perhaps would be just. 25. Be that as it may, since the order of the competent authority dated 09.02.2018 is found invalid, the said order and the consequential proceedings under Section 3D and Section 3G of the NH Act are set aside, however, only in respect of the petitioners, who filed objections and sought for personal hearing. Respondent No.3/competent authority shall fix a date for hearing and pass orders afresh after affording an opportunity of hearing to the petitioners either in person or through a legal practitioner, in accordance with law, expeditiously. Point No.3 is answered accordingly. 26. Accordingly, these Writ Petitions are allowed in part, with the directions as indicated above. 27. Before parting with this judgment, it may be appropriate to observe that merely because the works are related to National Highways and of great importance involving public interest and economic growth, the authorities concerned cannot dispense with the mandatory requirements of law and thereby act prejudicial to the interest of individuals/land owners, who include farmers like in the present writ petitions. The self-imposed restrictions or limited interference in the matters of this nature by the Courts is only in the interest of public at large, but cannot be viewed as imprimatur to the acts and deeds of the authorities concerned in violation of law. For that matter, this Court is equally avowed with the Constitutional obligation to protect the rights of individuals and would not shirk away from interference where it warrants. Therefore, it is imperative on the part of the authorities concerned under the NH Act to take up the projects after thorough ground work and strictly comply with the provisions of the said Act as also the guidelines issued by the Ministry of Road Transport and Highways (MORTH), Government of India from time to time, so that the legal tangles would be minimized. There shall be no order as to costs. Consequently, Miscellaneous Petitions pending, if any, in the writ petitions shall stand closed.