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2023 DIGILAW 1328 (AP)

Vanacharla Venkata Krishna Rao v. Union of India

2023-09-21

NINALA JAYASURYA

body2023
JUDGMENT 1. The present Writ Petition is filed questioning the Notification dtd. 18/4/2018 in SO No.1701/E) issued by respondent Nos.1 & 2 under Sec. 3(A)(1) of National Highways Act, 1956; further Notification dtd. 7/12/2018 in SO No.6078(E) issued under Sec. 3D(1) of same statute; further Notification dtd. 18/1/2019 issued under Sec. 3G(3) of the same statute by the 5th respondent; further Notification dtd. 11/10/2022 in NHAI/PIU-RJY/LA/N.H216A/Kaikaram Flyover under Sec. 3G(3) of the same statute by the 5th respondent and also Order dtd. 18/6/2018 in ROC NHAI-16/Flyover/2018/1 passed by the 5th respondent, as being illegal, irregular, irrational, unconstitutional and violative of provisions of National Highways Act, 1956 and offends Articles 14, 21 and 300-A of the Constitution of India. 2. Heard Mr.Sita Ram Chaparla, Learned Counsel for the petitioners. Also heard Mr.S.S.Varma, Learned Standing Counsel appearing on behalf of the respondent Nos.3 & 4 and the Learned Assistant Government Pleader for Land Acquisition representing for respondent No.5. 3. The relevant facts germane for consideration and the disposal of the Writ Petition may be stated thus:- The 1st respondent issued a Notification under Sec. 3A of National Highways Act, 1956 (hereinafter referred to as the Act") dtd. 18/4/2018 for acquisition of the lands mentioned therein for public purpose i.e., Building (Construction of Flyovers/ VUPs/ Widening/ Four Laning/Six Laning etc., ) Maintenance, Management and Operation of NH 16/216A in the stretch of land from Km 1005.700 to 1007.450 (Gundugolanu - Rajamahendravaram Sec. ) in the District of West Godavari. Pursuant to the said Notification, objections under Sec. 3C of the Act, were called for and on 7/5/2018, the petitioners and others filed their objections. The 5th respondent after considering the objections addressed a reply dtd. 8/6/2018. Subsequently, on 7/12/2018, a Notification under Sec. 3D of the said Act was published in the Government of India Gazette. Thereafter, a Notice under Sec. 3G (3) of the said Act was published on 18/1/2019. However, subsequently another Notification issued under Sec. 3G (3) of the Act dtd. 11/10/2022 was published in the News papers on 15/10/2022, wherein it was inter alia mentioned that the extent of land was reduced from 60 meters width to 46 meters. Under the said circumstances, the present Writ Petition came to be filed on various grounds. 4. However, subsequently another Notification issued under Sec. 3G (3) of the Act dtd. 11/10/2022 was published in the News papers on 15/10/2022, wherein it was inter alia mentioned that the extent of land was reduced from 60 meters width to 46 meters. Under the said circumstances, the present Writ Petition came to be filed on various grounds. 4. The Learned Counsel for the petitioners made his submissions referring to the contentions/grounds formulated in the Writ Petition contending that the comprehensive objections submitted by the petitioners pertaining to the Notice under Sec. 3C of the Act were not considered in a proper perspective. He contends that there is no requirement of acquisition of the subject matter lands in view of laying of Gundugolanu - Rajamahendravaram Express Highway connecting Chennai - Kolkata National Highway and due to the same 90% of the traffic was diverted and therefore the purpose for which the construction of the Flyover was proposed vide Notification dtd. 18/4/2018, would no longer remain. The Learned Counsel also submits that as a consequence, the impugned 3G Notification dtd. 11/10/2022 is not sustainable. Without prejudice, he also contends that it is not permissible to modify the original extent and issue another Notification under Sec. 3G of the Act. It is his contention that if the respondents takes any decision to reduce/modify the extent of lands etc., sought to be acquired through the original Notification dtd. 18/4/2018, they should initiate fresh land acquisition proceedings by issuing a Notification under Sec. 3-A of the Act to enable the petitioners to file their objections to the changed extents and other aspects inter alia relating to change of alignment etc., In essence his contention is that the entire proceedings are to be withdrawn and fresh proceedings are required to be initiated. 5. The Learned Standing Counsel for N.H.A.I on the other hand submits that the proposed acquisition of lands of the petitioners was intended for construction of Flyover for public purpose to avoid road accidents and to take effective steps for improvement of road safety. He submits that though originally the proposal was for acquisition of 60 meters width of land for Flyover and a Notification to that effect was issued for acquisition of lands, later, the same was reduced in view of the decision dtd. He submits that though originally the proposal was for acquisition of 60 meters width of land for Flyover and a Notification to that effect was issued for acquisition of lands, later, the same was reduced in view of the decision dtd. 13/7/2020 taken by Competent Authority to reduce the ROW (Right of way) of the Flyover to 46 meters and the land required for the same was worked out as 1.7038 Hectares only. He submits that, accordingly the 3rd respondent has submitted the Revised Land Plan Schedules vide Letter dtd. 31/12/2021 to the 5 th respondent to prepare Revised Sub-Division Record for acquisition of the required lands. He submits that the decision to reduce the construction of Flyover at Kaikaram Village would reduce the cost of construction and acquisition of lands to that extent and the petitioners would also get benefited by virtue of the reduction in the extent of lands sought to be acquired from them. While stating that it saves public exchequer and no prejudice would be caused to the petitioners by virtue of the reduction of the extents of lands, the Learned Standing Counsel would contend that the Writ Petition is devoid of merits and liable to be dismissed. 6. In reply to the contentions, the Learned Counsel for the petitioners vehemently submits that the reduction in the extents of the lands sought to be acquired from the petitioners would not in any way benefit them as the remaining extents after reduction would not serve any purpose and virtually will become useless. He accordingly prays for allowing the Writ Petition. 7. This Court has considered the submissions made and perused the material on record. In so far as the factual aspects of the case are concerned, there is no dispute with regard to issuance of the relevant Notifications under the provisions of the Act. It is also not in dispute that the petitioners have submitted their objections to the proposed acquisition and as seen from the record and as noted from the pleadings, their objections were rejected and some of the petitioners filed W.P.No.4049 of 2019 challenging the Notification dtd. 18/4/2018. Be that as it may. 8. The crucial and legal aspect involved in the present Writ Petition is regarding issuance of 3G Notification dtd. 11/10/2022, wherein the extent of land sought to be acquired was reduced and whether it is permissible in Law? 9. 18/4/2018. Be that as it may. 8. The crucial and legal aspect involved in the present Writ Petition is regarding issuance of 3G Notification dtd. 11/10/2022, wherein the extent of land sought to be acquired was reduced and whether it is permissible in Law? 9. In the Counter Affidavit except mentioning the justification for reduction of the extent of land, nothing is traversed regarding the power or authority conferred on the authorities concerned to reduce/modify the extent notified under Sec. 3A of the Act, which would in a way amounts to partial withdrawal of the acquisition proceedings. 10. Though the Learned Standing Counsel for N.H.A.I tried to impress upon this Court that the proposed extents can be reduced and authorities are conferred with the power in that regard by relying on the Judgment of the erstwhile High Court of Andhra Pradesh in Vinod Chandra and Ors. vs. State of Andhra Pradesh and Ors ., [W.A.No.774 of 1997 and W.P.No.13766 of 1995 dtd. 11/9/1997] the same is not applicable since it is arising under the provisions of the Land Acquisition Act, 1894, whereas the case on hand is under the National Highways Act, a special enactment. 11. At this juncture, it may be relevant to refer to the relevant provisions under the Land Acquisition Act, 1894 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Sec. 48 of the Land Acquisition Act, 1894 reads as follows:- 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. - (1) Except in the case provided for in Sec. 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Sec. . 49. Acquisition of part of house or building. (3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Sec. . 49. Acquisition of part of house or building. Sec. 93 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 reads as follows:- 93. Completion of acquisition not compulsory, but compensation to be awarded when not completed. - (1) The appropriate Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the appropriate Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. 12. Thus, under the above said enactments specific power was conferred on the Government to withdraw from the acquisition proceedings, in the event, it was found that the land is not required for the purpose for which it was sought to be acquired, subject to the other statutory conditions. 13. Whereas under National Highways Act, there is no such enabling provision or power, which vests the concerned Government or the authorities to withdraw from the acquisition proceedings, be it partial or in whole or reduce the extent sought to be acquired like in the present case. It may be relevant to state here that on publication of declaration under Sec. 3D(2) of the Act, the land vests absolutely in the Central Government free from all encumbrances. For ready reference, the Sec. 3D which deals with Declaration of acquisition may be extracted hereunder:- "3D(1) - Where no objection under sub-sec. (1) of Sec. 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under subsec. (2) of that Sec., 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-sec. (1) of Sec. 3A. (2) of that Sec., 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-sec. (1) of Sec. 3A. 3D(2) - On the publication of the declaration under sub-sec. (1), the land shall vest absolutely in the Central Government free from all encumbrances." 14. In the present case, Sec. 3D publication with reference to the extent of land originally sought to be acquired vide 3A Notification dtd. 18/4/2018 was published on 7/12/2018. Thus, the entire extents of lands as proposed in the 3A Notification stands vested with the Central Government by virtue of the provisions of the Act. At this juncture, it may be appropriate to mention here that though some of the petitioners filed W.P.No.4049 of 2019, it appears that they failed to secure interim orders and thereby the authorities proceeded with determination of compensation under Sec. 3G of the Act initially, in respect of the entire original extent of land vide Notification dtd. 18/1/2019. But, no Award was passed pursuant to the said 3G Notification dtd. 18/1/2019 for whatsoever reasons and subsequently a fresh Notification under Sec. 3G of the Act dtd. 11/10/2022, with reduced extents was issued which is impugned. 15. This Court having examined the matter with reference to the provisions of the Land Acquisition Act, 1894 and the latest Act, 2013 as also the provisions of the National Highways Act, 1956 is of the considered opinion that in the absence of any specific provision conferred power on the concerned Government/Authorities to withdraw or reduce the extents of land sought to be acquired cannot issue any proceedings under Sec. 3G of the Act reducing the extents, more particularly, after the said land was vested with the Central Government under Sec. 3D of the Act. The charging Sec. 3G only provides for determination of amount payable as compensation and the same would not envisage reduction of extent of land acquired or already vested within the Government. 16. The charging Sec. 3G only provides for determination of amount payable as compensation and the same would not envisage reduction of extent of land acquired or already vested within the Government. 16. Stuck with a Fait accompli situation like in the present case, National Highway Authority of India, through Project Director filed a Writ Petition against Union of India, through Secretary Ministry of Road Transport and Highways, New Delhi [2023:CGHC:1713] seeking a direction to the Union of India to initiate proceedings for de-notification of the land which stood acquired by it by publication of a Notification under National Highways Act, 1956 under Sec. 3D. A Learned Judge of High Court of Chhattisgarh at Bilaspur dealt with the provisions of National Highways Act vis-a-vis provisions of the Land Acquisition Act, 1894 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and was not inclined to grant relief sought for by the National Highway Authority of India and dismissed the Writ Petition by an Order dtd. 17/1/2023. The relevant portion of which reads as follows:- "14. It has been the settled position of law by a catena of decisions by the Hon'ble Supreme Court wherein it has been time and again reiterated that in the course of exercising of the writ powers by the High Court under Article 226, it would not create a law or exercise powers, which are otherwise not enshrined under the provisions of law. Exercising of such powers, which are otherwise not prescribed would be inconsistent to the substantive law itself. Particularly in the instant case where the Land Acquisition Act of 1894 and the subsequent Act of 2013 both having a clause for withdrawal from the acquisition and the subject Act in the present writ petition i.e. the National Highways Act, 1956 not having such a provision, this Court is of the opinion that there seems to be a deliberate exclusion by the Law Makers while enacting the said law. Hence under the circumstances, it would not be fit for this Court in exercise of its writ powers to grant a relief that the petitioner in WPC No. 1442 of 2018 has sought and the writ petition of the petitioner-NHAI, therefore deserves to be and is accordingly rejected." 17. Be that as it may. Hence under the circumstances, it would not be fit for this Court in exercise of its writ powers to grant a relief that the petitioner in WPC No. 1442 of 2018 has sought and the writ petition of the petitioner-NHAI, therefore deserves to be and is accordingly rejected." 17. Be that as it may. This Court in the light of the conclusions arrived at supra, is of the considered opinion that the respondents have no power to reduce the extent of land and determine the compensation in respect of the same. Therefore, the Notification dtd. 11/10/2022 is declared as illegal, lacking in statutory power or authority and is accordingly set aside. The petitioners by virtue of the events subsequent to filing of W.P.No.4049 of 2019 are not entitled for the other reliefs. 18. Accordingly, the Writ Petition is partly allowed. The authorities shall take necessary action in the matter for issuing fresh Notification under Sec. 3G of the Act in consonance with the Notification issued under Sec. 3A of the Act and determine the compensation payable to the petitioners in accordance with Law, as expeditiously as possible, within a period of eight (8) weeks from the date of receipt of copy of this order. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.