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2022 DIGILAW 479 (KAR)

Ramananda Nayak v. Union of India

2022-04-05

B.M.SHYAM PRASAD

body2022
JUDGMENT 1. The petitioners, who are residents of Kela Parkala, Udupi Taluk and District and who own lands adjacent to National Highway 169A in this village, have impugned the notifications issued under the provisions of Ss. 3A and 3D of the National Highways Act 1956 (for short, 'the NH Act'). The petitioners contend that these notifications insofar as they provide for a deviation from the existing pathway on this National Highway 169A near their properties must be quashed. 2. This Court has granted interim order of status quo as regards the petitioners' lands on 5/4/2021, and this interim order is continued till this date. The second respondent - the Special Land Acquisition Officer, National Highways, PWD, Bangalore - has filed the application for vacating the interim order, but with the consent of the learned counsels for the parties, the petition is taken up for final disposal. 3. Sri. Anil Kumar Shetty, learned counsel for the petitioners, submits that the petitioners must succeed primarily on the following grounds: [i] The National Highway 169A was initially a District Main Road which is later notified as a State Highway and subsequently as a National Highway. The Building Line beyond the National Highway was marked way back in the year 2014, and notwithstanding the same while issuing the present impugned notifications, there is a deliberate deviation of the existing pathway near the petitioners' properties [for short, 'the impugned Straightening']; [ii] The petitioners, who rely upon certain undisputed factors to establish vested interest in notifying the impugned Straightening, can demonstrate malafides. The petitioners even otherwise, can demonstrate that the notification is not issued in compliance with the procedure contemplated under the provisions of the NH Act. Sri. Anil Kumar Shetty elaborates on these grounds as follows: 4. On malafides in notifying the impugned Straightening: 4.1 It is undisputed that a third party has commenced suit in O.S.No.476/2015 on the file of the Civil Judge, Udupi against the National Highway authorities. This plaintiff, as part of cause of action for this suit, has alleged that National Highway Authorities had issued notice stating that the plaintiff had commenced construction without necessary set back from the Building Line. The National Highway Authorities have filed written statement justifying such notice and thus these authorities have acknowledged the existing pathway and the associated Building Line. During the pendency of this suit, the plaintiff has completed a commercial building. The National Highway Authorities have filed written statement justifying such notice and thus these authorities have acknowledged the existing pathway and the associated Building Line. During the pendency of this suit, the plaintiff has completed a commercial building. If the National Highway is to be widened along this existing path, this plaintiff's commercial property would have to be demolished, and to avoid this consequence the notifications are issued providing for the impugned Straightening affecting the petitioners' properties. The malafides in exercise of power can be undeniably inferred and hence, the petitioners must succeed. 4.2 The purported reason for the impugned Straightening is to straighten a curve but it is indisputable that there are a number of curves along this National Highway which runs between Thirthahalli and Udupi via Agumbe. The respondents cannot dispute that there is another curve just about 200 metres from the petitioners' properties. The authorities have not proposed straightening of these curves. Only a sec. of this Road [the impugned Straightening] cannot be identified for straightening. This further reinforces the petitioners' case that the straightening of a curve as part of the National Highway is a ruse and is a decision to pick and choose to help a few, and is vitiated by malafides. 4.3 The Government has accorded approval on 10/7/2017 (Annexure-R2) for the impugned Straightening. However, the Consulting Agency engaged by the second respondent has submitted a revised drawing for the impugned Straightening as per sketch dtd. 2/9/2017 (Annexure-L). This is another circumstance that establishes malafides in notifying the impugned Straightening. 5. On non-compliance with the provisions of the NH Act: 5.1 A vague description of the properties notified for acquisition would not meet the requirement of Sec. 3A of the NH Act which contemplates that every notification under Sec. 3A(1) of the NH Act shall give a brief description of the lands proposed for acquisition. The description of the properties notified for widening is undeniably vague. The description of the properties notified for widening is undeniably vague. If the description of the properties in the notification under Sec. 3A(1) is vague, as is in this case, the entire edifies of the acquisition proceedings would collapse as held by the Hon'ble Supreme Court in Competent Authority v. Barangore Jute Factory and Ors, (2005) 13 SCC 477 5.2 If the notification under Sec. 3D of the NH Act as regards the impugned Straightening is to prevail, the respondents, who in their statement of objections have perfunctorily stated that the petitioners' objections have been considered and rejected but without furnishing any detail, will have to establish that an opportunity of hearing, as contemplated under Sec. 3C of the NH Act, is extended to the petitioner. This opportunity of hearing is mandatory before there could be issuance of notification under Sec. 3D of the NH Act. The respondents have not placed any material on record to establish that the petitioners are extended with due opportunity of hearing, a mandatory requirement and therefore, the petitioners must succeed in their challenge against the impugned Straightening. 5.3 The authorities under the NH Act are empowered to undertake different tasks as mentioned under Sec. 3B of the NH Act which would include setting out boundaries, intended lines of marks and marking of levels and boundaries. The power in this regard must be exercised, as would be obvious from the provisions of Sec. 3B of the NH Act, only after notice under Sec. 3A(1) of the NH Act is issued. However, in the present case, the exercise in this regard is undertaken in the year 2014, which is borne out by the pleadings in the original suit. Notwithstanding the same once this jurisdiction is exercised, the authorities must adhere to the same. The authorities who have identified the boundary lines and the marks along the existing pathway in the year 2014 must adhere to the same. 6. Sri. Dhyan Chinnappa, learned Senior counsel for the respondents, places on record a series of photographs to bolster his submission that the alignment work along the National Highway stretch is completed except the impugned Straightening, and this must receive due consideration given the purpose and object of the subject notifications. The photographs are taken on record, and are considered. Sri. Dhyan Chinnappa's submissions are as mentioned hereafter. 7. The photographs are taken on record, and are considered. Sri. Dhyan Chinnappa's submissions are as mentioned hereafter. 7. On the grounds of colorable and arbitrary exercise of jurisdiction: 7.1 The State Highway was declared as a National Highway (Highway No.169A) in exercise of jurisdiction under Sec. 2(2) of the NH Act vide the notification dtd. 10/2/2014. The Building Lines may have been marked in 2014 immediately after the aforesaid notification dtd. 10/2/2014. The merits of the action taken by the authorities to ensure that Boundary Lines are adhered to by the corresponding owner i.e., the plaintiff in O.S.No.476/2015, must necessarily be considered in the light of the pleadings in that suit and the circumstances as they existed then. In any event those circumstances would be totally extraneous to the present proceedings which is begun for the first time with the issuance of notice under Sec. 3A(1) of the NH Act. The petitioner is not justified in either alleging either malafides or in alleging vested interests from the pleadings in the suit in O.S.No.476/2015. 7.2 The Ministry of Road Transport and Highway has accorded approval on 10/7/2017 for the proposed alignment, which includes the impugned Straightening. The alignment as approved by this order dtd. 10/7/2017 is being implemented with the current notification. It is only as a matter of executing the approved alignment, certain revisions are obtained by the consulting agency. The revisions, or working out the details, for execution cannot be relied upon to contend that the alignment is revisited to straighten the curve [the impugned Straightening] after the approval to accommodate any personal interest. In support of the submission that only the executing details are finalized after the approval on 10/7/2017, reliance is placed upon Annexure-R4 [a sketch of the subject alignment]. When the existence of a curve is undisputed, there cannot be any inference of arbitrariness or colorable exercise in notifying the impugned Straightening. 8. On the grounds of non-compliance with the provisions of the NH Act: 8.1 The notification under Sec. 3A (1) of the NH Act clearly indicates that the land plans and the other details of the lands to be acquired are made available for inspection by any interested person or the officer of the competent authority. This availability of the plan and the details mentioned in the notification dtd. This availability of the plan and the details mentioned in the notification dtd. 26/8/2020 would satisfy the requirement of Sec. 3A (1) of the NH Act as these details and the details as mentioned in the notifications would clearly establish the identity of the properties. Therefore, the submissions that the notification under Sec. 3A (1) of the NH Act is vague and the proceedings, including the impugned notification must collapse insofar as the petitioners' properties cannot be accepted. 8.2 The Hon'ble Supreme Court in Competent Authority Vs. Barangore Kite Factory and Ors (supra) has opined that the notification was vague because the authorities in that case could not place on record a plan that was linked to the notification and the impugned notification itself do not refer to any plan. If the notification refers to a plan and it is made known that it is available for scrutiny, the acquisition proceedings cannot be called in question on the ground of vagueness. In this regard reliance is placed on paragraph No.9 of the Hon'ble Surpeme Court's decision in Competent Authority Vs. Barangore Kite Factory and Ors (supra). 9. The petitioners, except for a bald statement in the Memorandum of Writ Petition that they have been denied an opportunity of hearing, have not even urged non-compliance with this requirement. In meeting the allegation as set out in the writ petition, statement of objections are filed averring that objections have been considered and rejected. The petitioners are not serious in their ground that the requirements of Sec. 3C of the NH Act have not been complied with. Therefore, this Court must not intervene with the acquisition proceedings even on this ground. 10. In the light of the rival submissions, the question that arises for consideration is: Whether this Court must interfere with the impugned notifications insofar the impugned Straightening either on the ground of malafides or for non-compliance with the provisions of Sec. 3A (1), 3B and 3C of the KH Act. 11. The petitioners' case on malafide exercise of jurisdiction [malice in law] is based on the assertion that the impugned Straightening is to accommodate the interest of another and to safeguard the property of such other. The petitioners assert that with the notification dtd. 10/2/2014 the authorities have identified the boundaries and Building Line. 11. The petitioners' case on malafide exercise of jurisdiction [malice in law] is based on the assertion that the impugned Straightening is to accommodate the interest of another and to safeguard the property of such other. The petitioners assert that with the notification dtd. 10/2/2014 the authorities have identified the boundaries and Building Line. When such exercise was undertaken one of the property owners, who would have been affected if the existing alignment is continued, has filed a suit in O.S.No.476/2015 for permanent injunction. The Highway Authorities had opposed construction of a commercial building by the plaintiff without the necessary set back of 21 metres from the center of the National Highway insisting on the existing alignment. But, the impugned Straightening saves this property. It is argued on behalf of the petitioners that these circumstances, given the clandestine nature of the understanding that could be between the officers and the third party, must be sufficient to find in favour of the petitioners on the grounds of malafide exercise of jurisdiction. 12. The State Highway is declared as a National Highway in the year 2014. The Highway authorities have undertaken some exercise to define the Building Line and to ensure such Building Line is adhered to, including defending the suit in O.S.No.476/2015. The approval for the alignment with the impugned Straightening is granted in the year 2017. The notification under Sec. 3A of the NH Act is issued at the first instance only on 19/6/2019. It is not denied that the approval of the impugned Straightening must be subject to geometric improvements wherever necessary and the result of the impugned Straightening straightens a curve cannot be contested. This Court must also extract one of the photographs to test the argument that the impugned Straightening is to further private interests and is not in the public interests. The photograph is as follows: 13. The petitioners' contention that drawings have been revised after the approval by the Central Government is sufficiently explained by the respondents in bringing forth on record that after the approval for widening because of geometrical improvements the drawings are revisited to execute the work. These revisions are borne out by Annexure-R4. Further, the undisputed fact that a curve on a National Highway is straightened is a strong vindication of public purpose. The question of malafides must be examined in the light of these circumstances. 14. These revisions are borne out by Annexure-R4. Further, the undisputed fact that a curve on a National Highway is straightened is a strong vindication of public purpose. The question of malafides must be examined in the light of these circumstances. 14. This Court must also refer to what in law would amount to malafides, and decide whether there is malafide exercise of power. The Hon'ble Supreme Court in Ratnagiri Gas and Power (P) Ltd., v. RDS Projects Ltd., (2013) 1 SCC 524 while referring to the earlier decision in State of Bihar v. P P Sharma,1992 Supp (1) SCC 222 has summed up what amount to malafides in exercise of power and the burden of establishing the same. The Hon'ble Supreme Court has reiterated that: "Malafides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. The action taken must, therefore, be proved to have been made malafide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand." 15. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand." 15. On the question of burden of proof of establishing malafides in administrative decisions, the Hon'ble Supreme Court, referring to its earlier decision, has reiterated the enunciation in Ajit Kumar Nag v. Indian Oil Corporation Ltd., (2005) 7 SCC 764 which is as follows: "It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is "very heavy". (vide E.P. Royappa v. State of T.N. (1974) 4 SCC 3 ) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility." 16. If the authorities after the notification dtd. 10/2/2014 declaring the State Highway as a National Highway (Highway No.169A) in exercise of jurisdiction under Sec. 2(2) of the NH Act have taken measures to identify Building Line and enforce the same [including contesting the suit], and if the authorities have later approved certain changes in the approved alignment because of geometric improvements after necessary survey and DPR including technical persons, this Court cannot reasonably opine that there is malafides in notifying the impugned Straightening. The contention that only the impugned Straightening is selected and not the other curves, in the absence of necessary details, does not enable the petitioners discharge the higher burden of establishing malafides. 17. Further, there is merits in the contentions on behalf of the respondents that the notification under Sec. 3A of the NH Act cannot be faulted on the ground of vagueness inasmuch as the notification under Sec. 3D of the NH Act mentions the extent of the properties required for acquisition accompanied by a declaration that the plans are available with the office of the Competent Authority for scrutiny. This is unlike in the case on hand before the Hon'ble Supreme Court in Competent Authority v. Barangore Jute Factory and Ors (supra) where the authorities had not referred to any plan in the notification, and had failed to produce, even before the Court a copy of the plan that could be associated with the notification. The Hon'ble Supreme Court in this decision in paragraph No. 9 has observed as: "The availability of a Plan would have made all the difference. If there is a Plan, the area under acquisition becomes identifiable immediately. The question whether the impugned Notification meets the requirement of brief description of land under Sec. 3A(2) goes to the root of the matter. The High Court rightly observed : ".it is just not possible to proceed to determine the necessity of acquisition of a particular plot of land without preparation of a proper Plan." The Appendix to the impugned Notification shows that in many cases small parts of larger chunks of land have been notified for acquisition. This is not possible without preparing a Plan. But where is the Plan? The Notification in question makes no reference to any Plan. Our attention was drawn to averments in pleadings by Writ Petitioners and replies thereto of the acquiring authority. The Writ Petitioners have pleaded that there was no Plan. Replies are vague and by way of rolled up answers. There is no specific reply. It is obvious that there was no Plan and therefore none was referred to in pleadings nor any thing was produced before Court at the hearing." 18. The petitioners' contention that they have not been extended due opportunity under Sec. 3C of the NH Act is developed from a contention in the Memorandum of Writ petition which reads as follows: "The power to take possession is only in accordance with 3E after determination of the award amounts and accounting of quantum by the Authority appointed under 3G and after the quantum is deposited in 3H. But the authorities are threatening to take possession by force. After compliance with 3D and 3H the authority is bound to serve notice for the delivery of the possession to the owners within 60 days which is admittedly no complied. The plantation and crop on subject lands are basis of livelihood of the Petitioners. But the authorities are threatening to take possession by force. After compliance with 3D and 3H the authority is bound to serve notice for the delivery of the possession to the owners within 60 days which is admittedly no complied. The plantation and crop on subject lands are basis of livelihood of the Petitioners. Hence it is just and necessary to maintain status quo in respect of the subject properties of the petitioners pending consideration of the writ petition on merits." 19. The petitioners other than contending that the second respondent have failed to consider the prevailing facts have not set out the details to make out a case and in the absence of the material to substantiate a ground as above, this Court cannot opine that there is any failure in extending the opportunity as contemplated under provisions of Sec. 3C of the NH Act. Therefore, the writ petition stands rejected. The authorities are directed to maintain status quo for a period of six [6] week from today so that the petitioners have a reasonable opportunity, if they are so advised, to pursue their further remedy.