IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.09.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.Nos.17669 and 17670 of 2010 and M.P.Nos.1, 1, 2 and 2 of 2010 C.Natarajan .. Petitioner in W.P.No.17669/2010 P.K.Palanisamy .. Petitioner in W.P.No.17670/2010 Vs. 1.The Competent Authority and Special District Revenue Officer, (Land Acquisition) (NH-47 and 67) Door No.3, Savaimuthu Chettiar Street, RedFields, Coimbatore-45. 2.The Project Director (NH-47) National Highways Authority of India, Pankaja Mill Road, Ramanathapuram, Behind Gem Hospital, Coimbatore-45. .. Respondents in both WPs Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari calling for the records relating to the notification of the first respondent in R.C.2/2010 (A1) dated 30.4.2010 published in 'Daily Thanthi' dated 4.5.2010 in so far as acquiring the lands in S.F.No.226, Avinashi Road and S.F.No.227, Sri Nagar respectively in Kaniyur Village, Karumathampatti, Coimbatore District to an extent of more than 60 meters of the notified area is concerned and the consequential order passed by the first respondent in Ref.No.147/2010-A1 dated 15.7.2010 on the objection made by the petitioners and to quash the same. For Petitioner : Mr.D.Balachandran in both WPs For Respondents : Mr.P.Subramanian, AGP-R1 in both WPs Mr.P.Wilson, SC for M/s.P.Wilson Associates for -R2 in both WPs https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER On consent, both the writ petitions are taken up for final disposal. 2.Both the writ petitions are filed to quash the notification issued by the first respondent in R.C.2/2010 (A1) dated 30.4.2010 published in 'Daily Thanthi' dated 4.5.2010 in so far as it relates to acquisition of the lands in S.F.No.226, Avinashi Road and S.F.No.227, Sri Nagar respectively in Kaniyur Village, Karumathampatti, Coimbatore District to an extent of more than 60 meters of the notified area and the consequential order passed by the first respondent in Ref.No.147/2010-A1 dated 15.7.2010 on the objection made by the petitioners. 3.Since both the writ petitions are for identical relief based on identical set of facts involving identical issue, both are disposed of by common order. 4.The lands in question belong to the petitioner in both the writ petitions, having purchased the same during 1994 and 2005 respectively. Both the petitioners have put up factory and been running their business thereon. While so, the first respondent has issued notification dated 30.4.2010 and published the same in 'New India Express' and 'Daily Thanthi' on 4.5.2010 under Section 3A (3) of National Highways Act for the purpose of building (widening/six laning etc), maintenance, management and operation of National Highways No.47, on the stretch of land from Km.102/035 to 183/060 (Chengapalli- Walayar Section) in Tirupur and Coimbatore District, by which, the lands belong to the petitioners are sought to be acquired and the publication issued contains the land plan and other details covered under the notification and the notification called for objections from any person interested in the lands covered under the notification within 21 days from the date of official notification and to make objections if any under section 3(c)(1) of the Act to the Special District Revenue Officer(LA) in writing. Accordingly, the petitioners have given their objections in writing to the first respondent on 21.5.2010 and the petitioners have again given their detailed objections dated 26.7.2010. In the mean while, the first respondent issued notice to the land owners for personal enquiry and the land owners appeared for enquiry through their authorised representatives. In the course of such personal enquiry, statement of objections are recorded from the authorised representatives and remarks are also called for from the Project Director, NHAI, Coimbatore. Thereafter, the first respondent has after considering the records, passed an order dated 15.7.2010 thereby rejecting the request of the petitioners for exclusion of their lands from acquisition as sought for in the objections. As a result, the petitioners have come forward with the present writ petitions https://hcservices.ecourts.gov.in/hcservices/ questioning the validity of the notification dated 30.4.2010 published on 4.5.2010 and the order dated 15.7.2010 passed by the first respondent herein. 5.According to the learned counsel for the petitioners, the objections raised in both the writ petitions is not against the acquisition of the petitioners land, but against the acquisition of their lands beyond 60 meters that too without properly considering the petitioners' objections. It is seriously contended by the learned counsel for the petitioners that the petitioners have put up and been running sizing and spinning mill with number of workmen and though the respondents have acquired about 60 meters of lands from the other lands in the same stretch, they are seeking to acquire about 85 metres on the road side in the petition mentioned lands alone and the petitioners are not aware of the reason for the large extent of land being acquired. It is further contended by the learned counsel for the petitioners that the acquisition of the petitioners land that too 85 meters is likely to affect the running of their factories and likely to result in closure of the factories leading to non employment of number of workmen resulting in sufferings to their family members and the same will amount to serious discrimination. The learned counsel for the petitioners have also seriously challenged the manner in which the enquiry was conducted and the failure of the first respondent to consider the objection of the petitioners. According to the learned counsel for the petitioners, no enquiry in the manner known to law after giving due opportunity to the petitioners for being personally heard is held by the authority concerned and the first respondent has rejected the objection without even considering and discussing the same and without giving any reason for rejecting the same, as such, the final order passed by the first respondent is in violation of the principles of natural justice and is against the well settled procedure laid down under law. 6.Per contra, the learned Additional Advocate General appearing for the respondents have seriously questioned the very locus standi of the petitioners to challenge the acquisition proceedings. It is strenuously argued by the learned Additional Advocate General that the notification issued is for building, widening/six laning etc, maintenance, management and operation of National Highways 47 and the land owners are, unlike the provisions contained under the Land Acquisition Act, under relevant provisions of the National Highways Act, entitled to raise objection only against the use for which the lands are sought to be acquired and the objections made by the petitioners are bald, vague and general in nature and no objection is raised against the use of the land and the objection so raised is also duly considered after giving due opportunity to the petitioners through their representatives. It is further argued by the learned Additional Advocate General that the extent of the land sought to be required for the specific purpose and the alignment for widening the road have been decided after careful study by technical experts and https://hcservices.ecourts.gov.in/hcservices/ the same has subsequently been approved by the Ministry of Road Transport and the present alignment is the most feasible in terms of geometric consideration and any suggestion for alternative alignment will result in additional acquisition and additional cost implication and the same cannot be considered at this stage and the larger extent of land is sought to be acquired at regular intervals and no allegation of malafide can be attributed as if the larger extent is sought to be required only in the lands belonging to the petitioners. 7.I have considered the rival submissions made on both sides and perused the materials available on record including the file and the plan produced on the side of the respondents herein. 8.The acquisition proceeding has been initiated under Section 3A (3) of the Highways Act for the purpose of building widening/six laning etc, maintenance, management and operation of National Highways No.47, on the stretch of land from Km.102/035 to 183/060 (Chengapalli- Walayar Section) in Tiruppur and Coimbatore District. The lands of the petitioners are situated in adjacent survey numbers and as per the particulars furnished herein, larger extent of lands i.e. 85 meters abutting the main road is sought to be acquired at particular point as such, the notice issued under Section 3A(3) of the National Highways Act and the final order passed upon the objections filed by the petitioners are challenged only to the extent of acquisition beyond 60 meters. The perusal of the records reveals that the notification dated 15.4.2010 was published on 4.5.2010 with land and other details and as per the notification, the persons interested in the lands are called upon to file their objections within 21 days. They are also permitted to inspect the land plans and other details of the lands covered under the notification in the office of the first respondent during office hours. The petitioners have in their typed set of papers enclosed the copy of their representations dated 21.5.2010 and 26.7.2010 and the first objection dated 21.5.2010 enclosed at pages 24 and 25 of the respondents' typed set of papers is the one admittedly filed within 21 days of the notification. The reading of the contents in both set of objections would reveal that the objection regarding acquisition of lands beyond 60 meters is not raised in the first objection dated 21.5.2010 filed by the petitioners as per section 3(c)(1) of the Act within 21 days as specified under the notification; but such objection is raised only in the objection dated 26.7.2010 made beyond 21 days as specified in the notification. Though the second objection dated 26.7.2010 is made before passing the final order upon the first objection, the same cannot be treated as statutory objection made under 3(c)(1) of the Act. As rightly argued by the learned Additional Advocate General, the first objection dated 21.5.2010 made by the petitioners is to be treated as statutory objection, for the purpose of deciding the issue involved in the present cases. https://hcservices.ecourts.gov.in/hcservices/ 9.Before going into the nature of the objections raised on facts, the first aspect to be considered is as to whether due enquiry was held and the petitioners have been given reasonable opportunity of being personally heard. As per the notification, the objections were called for within 21 days from the date of notification and the notification contains all the particulars of the lands sought to be acquired and the purpose of the acquisition. It further informs that the person interested the lands shall inspect the plan which is made available for inspection in the office of the first respondent. After the receipt of the objections, the land owners were duly issued with notice calling for personal enquiry. The land owners have also sent their authorised representatives and statement have also been recorded from the authorised representatives, as such, the enquiry for hearing of objections as contemplated under section 3(c)1 and (2) was duly held by the authority concerned and the petitioner cannot be now permitted to raise any objection against the manner in which the enquiry was conducted as if the same is held without giving due opportunity to the petitioners of being personally heard. 10.On facts, the petitioners have in their statutory objections simply stated that in the event of their lands being acquired, the same will cause revenue loss and the objection regarding acquisition of larger extent of land is raised only in the second objection and the same need not be looked into. 11.The statement of objections recorded from the authorised representatives are again to the effect that the petitioners are not aware of the actual extent of lands sought to be acquired and in the event of the entire extent of the lands as per the notification being acquired, the same is likely to affect their entire factory premises particularly the compound, stores and the machinery, as such, the petitioners' lands may be exempted from the acquisition. As a matter of fact, the petitioners' authorised representatives in their objections during the course of enquiry have specifically stated that if the larger extent of lands to be acquired than what is required for the acquisition, the compensation awarded has to be at higher rate i.e. at the market rate. 12.The first respondent has after considering the objections dated 21.5.2010 and that of the statement of the petitioners authorised representatives and the remarks of the Project Director, NHAI, Coimbatore, passed the order dated 15.7.2010 to the effect that the project is being implemented for the interest of the general public and there is no partiality in the land acquisition proceedings as the formation of six laning with adequate width in an uniform manner is necessary and the acquisition of the land and building could not be avoided and as the project work is in advanced stage, the request to exempt the lands cannot be accepted at this stage. The https://hcservices.ecourts.gov.in/hcservices/ correctness of such order is now seriously challenged on the ground that the objection raised is not properly considered and the finding is not supported by any valid reasons. In the considered view of this Court, the statutory objections raised by the petitioners is, as rightly contended by the learned Additional Advocate General, more general in nature and not against the use for which the lands is sought to be acquired. Even otherwise, the same is duly considered with reference to the purpose for which the lands is acquired. As such it cannot be stated that the order dated 15.7.2010 disallowing the request of the petitioners to exempt their lands from acquisition is devoid of any reasons, unfair or arbitrary etc. The first respondent who is the competent authority has duly considered the objections and rejected it on the ground that the same is required for formation of six laning with adequate width in an uniform manner and the same is in the opinion of this Court in strict compliance of the statutory formalities under section 3(c) 1 of the Act. 13.Such contention raised by the learned Additional Advocate General is fortified not only under the relevant provisions of law, but also by the following authorities cited on the side of the respondents reported in (i) 1996 (8) SCC 18 in Sam Hiring Co. v. A.R.Bhujbal and others); (ii) 1997 (1) SCC 134 in Ramniklal N.Bhutta and another v. State of Maharashtra; (iii) 2005 (13) SCC 477 in Competent Authority v. Barangore Jute Factory and others); (iv) 2006 (5) CTC 634, Division Bench of our High court in The General Manager (Tech.) and Project Director, NHAI, Chennai v. Sridevi rep. By its power of attorney Saibabu and five others); (v) 2006 (6) SCC 794 in Union of India v. K.G.Soni (vi) 2007 (6) MLJ 935 in Krishnaveni and others v Union of India rep. by the Secretary to Government, Ministry of Road Transport and Highways, New Delhi and others); (vii) 2008 (7) SCC 53 in Girias Investment Private Limited and another v. State of Karnataka and others) and (viii) 2010 (4) CTC 129, Division Bench of our High Court in Tamil Nadu Technical Education Department Staff Cooperative House Building Society rep. By its Secretary R.Jayaraman v. The Secretary to Government, Housing and Urban Development Department, Chennai and others); and unreported judgement dated 20.4.2009 made in W.A.Nos.310 and 323 of 2009 in A.Palanisamy and V.Ponnumsamy v. District Revenue Officer/authorised Officer for Land acquisition, Erode and two others. 14.The law laid down in all the cases summarised as below will answer all the objections raised on the side of the petitioners herein: (i)The Land Acquisition Act, 1894 confers a general right to object to acquisition of land under Section 5-A. The National Highways Act confers no such right and Under this Act, there is no right to object to acquisition of land except on the question of its user. (ii)The notification specifically mentioned that the plan and the details of the lands covered under the notification could be https://hcservices.ecourts.gov.in/hcservices/ made available for inspection by the persons interested in the office of the competent authority. Thus the aggrieved land owners have been given opportunity and it is not permissible for them to make any grievance about the description of the land or the extent of the land sought to be acquired. (iii)The Land acquisition officer is not a judicial authority or a quasi judicial authority. He exercises the power under Section 5A as an administrative authority. But the Act requires that he should consider the objections and give due opportunity of hearing. Then Principles of Natural Justice has been complied with and he is not required to elaborately deal with each of the objections and submit the report. (iv)The court should not interfere with the administrator's decision unless it is illogical or suffers from procedural impropriety or is shocking to the conscience of the Court in the sense that it is in defiance of logic or moral standards. In view of what has been stated in Wednesbury case, the Court would not go into the correctness of the choice made by the administrator and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision making process and not the decision. By applying the ratio laid down in the above judgments, all the statutory formalities are to be held well complied with before passing the impugned order. On this score alone, the relief sought for in both the writ petitions is liable to be rejected. 15.However, for the purpose of full adjudication of all the points raised herein, this court is inclined to go into the latest objection that the larger extent of 85 meters is sought to be acquired which is more than the required extent of 60 meters of lands. In this regard, the learned Additional Advocate General has produced the entire plan which shows that the extent of lands are not uniform through out; but larger extent is sought to be acquired at regular intervals. The reason for the same is explained in para 7 of the counter filed by the respondents. It is stated therein that the lands with more width are required only as per the land plan schedule and the final feasibility project report submitted by the Consultant for the purpose of six laning and appurtenances and not otherwise. The learned Additional Advocate General has explained in detail during the course of argument that as the acquisition is not only for six laning but for maintenance, management and operation of the National Highways and as the operation of National Highway includes the facilities to be provided to the operators on the National Highway, such as trucks, buses and other vehicles, more extent of lands at regular intervals is required for providing such facilities to them so that the National Highways is utilised and maintained properly. The same view has also been accepted by the Division Bench of our High court in the order dated 20.4.2009 in W.A.Nos.310 and 323 https://hcservices.ecourts.gov.in/hcservices/ of 2009. As rightly argued by the learned Additional Advocate General, which gains support from the observation of our High Court in its order dated 20.4.2009 that the entire project has been finalised after careful study of the technical and scientific experts and the project highways design is carried out by IRC specification and by taking into account, the final feasibility project report and such findings of scientific and technical expert bodies would not interfere with by this court in exercise of their power under Article 226 of the Constitution of India. Such contention is also fortified by the reasoning of Hon'ble Supreme Court in Akhil Bharat Goseva Sangh v. State of Andhra Pradesh reported in 2006 (4) SCC 162 wherein it is clearly observed that the court shall not substitute its decision. The Supreme Court has also in its judgment reported in 2006 (6) SCC 794 of the considerable view that the scope of judicial review is restricted to the deficiency in the decision making process and not the decision. In this case, the petitioners have raised their objections both regarding the deficiency in the decision making process and also the decision and while the former is devoid of merits, the latter is impermissible under law. 16.It is legally well settled that there is always presumption in favour of the administrative functions in exercise of the public benefit. The courts should be slow to interfere in such matters unless decision is tainted by serious vulnerability such as lack of fairness in procedure, illegality and irrationality and it is for the individuals to establish that the action falls within any of the categories and to produce sufficient materials, to prove malafide of the authority concerned and such amount of plea and proof is not available in the present case. In the considered view of this Court, no such ground is available in the present case which justifies any interference with the acquisition proceedings impugned herein. 17.Further, the Supreme Court has in the latest judgment in 2008 (7) SCC 53 expressed serious concern, as to how, the matters involving rights of the individuals in one hand and the benefit of the public on the other hand are being dealt with and as to how they shall be dealt with. The Supreme Court following the earlier judgment of the Supreme Court in 1997 (1) SCC Ramniklal Case, is of the view that while the rights of the individual whose property is sought to be acquired must be scrupulously respected acquisition for the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so and the petitioners herein are unable to make out such reason which goes to the root of the acquisition. 18.The observation of the Supreme Court in the judgment reported in 1997 (1) SCC 134 (Ramniklal N.Bhutta v. State of Maharashtra) has been reproduced hereunder: https://hcservices.ecourts.gov.in/hcservices/ "10.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-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be 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 person 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 proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. 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". The Supreme Court has in para 14 of its judgment reported in 2005 (13) SCC 477 clearly held that "the ultimate question will be about the quantum of compensation payable to the land owners. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners i.e. the writ petitioners appropriately for what they have been deprived of. Interest of justice persuade us to adopt this course of action". The Apex Court has proceeded to say that in appropriate case instead of quashing the notification, the date on which the compensation for the land under acquisition as