Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 360 (KAR)

Union of India v. Veerappa

2021-03-04

S.C.SHARMA, SURAJ GOVINDARAJ

body2021
JUDGMENT : S.C. Sharma, J. 1. The present writ appeal has been filed by the appellant Union of India and another against the order dated 26.10.2010 passed by the learned Single Judge in WP. No. 3758/2008 between Veerappa and Union of India and Another. 2. The facts of the case reveal that for the purpose of widening the existing Highway to four lane from km 28.200 to km 110.000 on National Highway ... 48 (Nelamangala - Hassan Section), the Ministry of Shipping, Road Transport and Highways in exercise of powers conferred by sub-section (1) of Section 3A of the National Highways Act, 1956 (hereinafter referred to as Act of 1956), issued a notification dated 17.11.2006 declaring its intention to acquire the lands mentioned in the schedule therein to ensure availability of right of way of 60 metres. The aforesaid notification was issued after carrying out proper survey and after obtaining necessary technical advice from the experts on the subject. 3. The substance of the notification was published in the Times of India on 22.12.2006 and in Kannada Prabha again on 21.12.2006 and the respondent before this Court (petitioner) filed his objections under Section 3-C of the Act of 1956. After hearing the objections, the objections raised by the respondent were disallowed keeping in view the fact that the acquisition of the land was based on the alignment of the proposed four lane of National Highway ... 48 (hereinafter referred to as NH-48) and the land was being acquired for public purpose. After disallowing the objections, in accordance with sub-Section (2) of Section 3-C of the Act of 1956, the National Highway Authority submitted its report in accordance with Section 3-D(1) of the Act of 1956 to the Central Government. The Central Government in exercise of powers conferred by virtue of Section 3-D of the Act of 1956 issued a final notification in October, 2007. 4. The appellants have further stated that the alignment of the four lane carriage way from km., 28.200 to km., 110.000 was decided as per the parameters laid down by the Indian Road Congress and based upon the detailed project report prepared by the team of experts keeping in view the geometrics, namely vertical and horizontal curves, gradient, topography of area and design as well as the speed. It has been further stated that the respondent before this Court preferred writ petition bearing WP. It has been further stated that the respondent before this Court preferred writ petition bearing WP. No. 3758/2008 after the construction of the road and the learned Single Judge has quashed the acquisition proceedings in respect of a stretch of highway between km., 49.474 to km., 50. 5. Learned counsel for Union of India has vehemently argued before this Court that the construction of the entire project is over and only a small portion of service road is required to be completed and at this juncture, the learned Single Judge has interfered with the matter without there being any reasonable explanation for shifting the road, redesigning the road and to take corrective measures. 6. It has also been argued that a bald submission was made by the respondent that on account of political interference/on account of political rivalry which existed between the respondent/land owner and the persons wielding influence with the National Highway Authorities, due to the political affiliations of certain persons, in order to harm the land owner have designed the road in such a manner that part of the marriage hall adjoining the road will have to be demolished. 7. The learned Single Judge based upon some minutes of the competent authority dated 27.1.2007 has also arrived at a conclusion that the stretch of road involves a bend and that can be straightened. The learned counsel for the Union of India vehemently argued before this Court that the so called minutes of hearing by the competent authority is not the conclusion of the competent authority and it was the argument canvassed on behalf of the land owner and at no point of time, the competent authority has opined that the stretch of road has the bend and can be straightened. It has also been argued before this Court that after the entire project is over, interference has been done. 8. On the other hand, learned counsel for the respondent/land owner has vehemently argued before this Court that the road in question is having a curve and the curve has been made intentionally between km., 49.474 to km., 50 in the proposed plan only to harm the land owners on account of the political rivalry. 8. On the other hand, learned counsel for the respondent/land owner has vehemently argued before this Court that the road in question is having a curve and the curve has been made intentionally between km., 49.474 to km., 50 in the proposed plan only to harm the land owners on account of the political rivalry. It has been stated that the curve could have been removed and the road could have been straightened and the learned Single Judge has rightly arrived at a conclusion that the acquisition of the land for the purpose of widening of NH 48 is vitiated by arbitrariness and malafide exercise of power on behalf of the Union of India. He has stated that the order passed by the learned Single Judge does not warrant interference and even though it is true that the road has been constructed, but the service lane is yet to be constructed and the order passed by the learned Single Judge does not warrant any interference. 9. Heard the learned counsel for the parties and then perused the records. 10. This Court has carefully gone through the order passed by the learned Single Judge. Paragraphs 15 to 27 of the order passed by the learned single Judge read as under : "15. I have also been taken through the original records, plan and the extract of the sketch/plan of the proposed widening of the road, a copy of which is produced at Annexure-F to the writ petition, which in respect of the stretch of NH48 lying in between KM 49.474 to KM 50 of the highway and even on a comparison and combined viewing of these two plans and sketch, it is very obvious even to the naked eye of a layperson that the road is taking a left curve at the point where the petitioner's property is located and again coming back to a point of the highway at KM 50 stone. Nothing could be easier than having a straight stretch of road in the stretch between KM 49.474 to KM 50, but for reasons not explained and not made good on facts, but sought to be hidden under the so-called technical expertise and expert advice, the curve is sought to be maintained, which, even to my understanding, does not serve any worthwhile purpose, but on the other hand, contrary and diametrically opposed to the object of straightening and reducing curves and assuming that there was a curve earlier in the original highway, while widening, when it is possible to straighten the road between these two kilometer points and should have been attempted and it is this obvious thing which lends credence to the allegation of the petitioner, which the petitioner had made at the earliest point of time even while filing his objections before the special land acquisition officer that the road is taking a deliberate left curve at the place the property of the petitioner is located only to harm the interest of the petitioner due to political rivalry that has existed between the petitioner and persons wielding influence with the national highway authorities, due to their political affiliations etc.,. 16. Whether such averments and allegations are made good by naming any person or otherwise, legal mala fides are writ large on the face of the record, in the authority persisting in having the road, nay, highway with the curve only so as to ensure that the land of the petitioner is acquired and the building of the petitioner is demolished for no cause; for no purpose and for no one's benefit, but only to the detriment of the petitioner. 17. 17. While, this court does not sit in appeal over the opinion of any expert nor this court takes over the administration or the manner of implementation of a project nor is the court concerned with the details of policy making, nor even as to the manner in which the road is to be laid as to in what manner, it should run in whose property, whether the road is to take a curve or a sharp curve or a bend, which are all, as observed by the Supreme Court, are matters best left to experts and persons conversant with such matters and to the administrators, who supervise all such actions, nevertheless, all such action and function upon the administrative side is subjected to judicial review of administrative action and has to necessarily answer the test of fairness and non-arbitrariness in State action, failing which such action is inevitably hit by Article 14 of the Constitution of India. 18. With no worthwhile explanation forthcoming for the retention of the curve at the particular place, but on the face of it, such a retention being to the detriment and agony of the petitioner and though the petitioner has been making persistent efforts to instill a sense of fairness and proper action to be taken on the part of the authority, that having failed, the petitioner has approached this court. 19. This court, acting as a guardian of rights of citizens, having a constitutional mandate to protect the rights and liberty of citizens, has a duty to perform to rein in muscle flexing administrative authorities, particularly when abuse and misuse of power is sought to be camouflaged the so-called technical expertise or guidance and even otherwise and to ensure that public authorities, public administrators and statutory functionaries always act only in consonance with statutory provisions, exercise such statutory powers and administrative powers in a fair, non-arbitrary manner; that they do not misuse or abuse their power to favour one and to victimize another person and ultimately to ensure that public authorities always act in the larger public interest, eschewing private and personal interest. 20. Proper exercise and utilization of statutory powers is not the manner of conduct of second respondent in the present case. 20. Proper exercise and utilization of statutory powers is not the manner of conduct of second respondent in the present case. Even the special land acquisition officer had occasion to record the need that the road can be straightened and the bend can be straightened and that the curve can be avoided. 21. Though Ms. Shilpa Shah, learned counsel for second respondent, seeks to explain this as a recording by the special land acquisition officer of the version of the petitioner as objector, that will not detract from the recording by the special land acquisition officer, as his signature is found at the end of such recording and it is very much part of the note sheets extract which is placed before the court by the very second respondent. in fact, it is thereafter, the very officer has passed orders subsequently, rejecting such objections for the reason that the project director of the national highway authority has strongly pleaded for overlooking the objection, as they have already finalized the plan etc. 22. In this background, even the submission of learned counsel for second respondent that the project is in an advanced stage and therefore no interference is warranted, does not carry conviction, as it is not as though the project is going to be affected by taking corrective measures, if an erroneous step had been taken, if an illegal action has been taken, if the power is misused or abused. 23. Even if were to be so, nevertheless, it is the duty of this court to correct it and to permit only such actions of administrative authorities which are law conforming alone to be permitted to sustain and it is also equally necessary for the authority to realize its mistake and not to keep trudging blindly in the wrong direction, but to head in the right direction, as it is always said 'better late than never'. 24. The acquisition of land for the purpose of widening NH48 particularly the stretch between KM 49.474 to KM 50 is clearly vitiated by arbitrariness and mala fide exercise of power for such acquisition and the manner in which it is exercised and the authority has projected the so-called design and plan, which are on the face of it flawed. 25. The acquisition of land for the purpose of widening NH48 particularly the stretch between KM 49.474 to KM 50 is clearly vitiated by arbitrariness and mala fide exercise of power for such acquisition and the manner in which it is exercised and the authority has projected the so-called design and plan, which are on the face of it flawed. 25. Therefore, such proceedings under the impugned notification in respect of the stretch of the highway between KM 49.474 to KM 50 is hereby quashed by issue of a writ of certiorari, but liberty is reserved to the respondents 1 and 2 to take corrective measure and to go ahead, after proper re-notification to sub-serve the overall object of widening of the road and straightening the curves etc., keeping in view the observations made in this order and by ensuring that the road does not take an unnecessary curve; that it does not take an avoidable curve. The judgment of the Supreme Court, on which reliance is placed by learned counsel for second respondent, in no way furthers the case of the second respondent in the present case, as a judgment and observation of the Supreme Court is not a blanket chit given to a public authority to act in an arbitrary, whimsical and irrational manner. No judgment can save an arbitrary action of a public authority, when it is in violation of Article 14 of the Constitution of India. 26. All courts and authorities in this country function under the powers and authority vested in them under the Constitution and no authority can claim immunity from the operation of the provisions of the Constitution. While it is desirable that our country also requires development, requires to gear up to the levels of global competitors and keep our nation if not in the forefront at least in the company of a forerunner, that cannot be achieved at the cost of trampling of the rights of the citizens, violating statutory provisions, even violating the constitutional mandate and such action will definitely be frowned upon and voided by courts even in exercise of jurisdiction of judicial review of administrative action. This is one classic case where such power is very necessarily to be exercised and it is accordingly exercised. 27. This is one classic case where such power is very necessarily to be exercised and it is accordingly exercised. 27. Writ petition allowed by issuing a writ of certiorari to quash the acquisition proceedings in respect of the stretch of the highway between KM 49.474 to KM 50, reserving liberty as indicated above in favour of second respondent. Rule made absolute. No order as to costs." 11. The learned Single Judge has taken into account two plans i.e., plan over which the road has already been constructed and the second plan according to which a straight road could have been constructed and has arrived at a conclusion that the plan which provides for construction of straight road was certainly a better plan and nothing could be easier than having a straight sketch of road in the stretch between km., 49.474 to km., 50 km. 12. In the considered opinion of this Court, the High Court does not have technical experts nor is an expert on technical side. The Union of India and the National Highway Authority of India before construction of a road carries out a detailed and exhaustive exercise in the matter of construction of the road and in the matter of widening of the road. In the present case, the land owner was not able to establish violation of any statutory provision of law before the learned Single Judge. The acquisition proceedings have attained finality, the project has been completed, the highway has been constructed and therefore, the order passed by the learned single Judge deserves to be set aside. 13. The Apex Court in the case of Ramniklal N. Bhatta vs. State of Maharashtra, reported in AIR 1997 SC 1236 , in paragraph 10 has held as under : "10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a Civil Suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 ... indeed any of their discretionary powers. It may even by open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceeding is not the only mode of redress. To wit, it is ultimately a matter of balancing the compacting interest. Beyond this, it is neither possible nor advisable to say. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceeding is not the only mode of redress. To wit, it is ultimately a matter of balancing the compacting interest. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the Courts while dealing with challenges to acquisition proceedings." 14. In the light of aforesaid judgment, this Court is of the opinion that widening of the road is being done in public interest, the public interest shall prevail over the private interest especially in the light of the fact that no specific provision has been violated by the Union of India in the matter of acquisition. This Court does not find any reason to interfere with the order passed by the learned Single Judge as in larger public interest widening of the road has taken place after acquiring the land and in case, the respondent is aggrieved in the matter of acquisition, the statute certainly provides for a remedy. The alignment of the road, at this juncture, cannot be changed as directed by the learned Single Judge. The respondent, though he has alleged malafides by stating that on account of the political pressure the alignment was changed, however, has not impleaded any politician as a respondent. Unsubstantiated allegations have been made in the writ petition to give a political colour and to save his land/structure. 15. This Court is of the opinion that the order dated 26.10.2010 passed by the learned Single Judge in WP. No. 3758/2008 deserves to be quashed and is accordingly, quashed. Writ appeal stands allowed. No orders as to costs.