IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 30.08.2011 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition Nos.4566 to 4569 of 2011 and M.P.No.1 of 2011 in all Writ Petitions J.Rajan Babu. ... Petitioner in W.P.Nos.4566 and 4567 of 2011 V.Saravanan. ... Petitioner in W.P.Nos.4568 and 4569 of 2011 Vs. 1.Union of India, represented by its Secretary, Ministry of Home, Transport & Highways, New Delhi. 2.The Authorised Officer-cum- Special District Revenue Officer, National Highways No.68 (Acquisition), Salem-4. 3.The Project Director, (N.H.68), National Highways Authority of India, 9/11, 2nd Floor, Omalur Main Road, Near New Bus Stand, Salem-636 004. 4.S.Priya, 5.B.Ramya ... Respondents in W.P.Nos.4566 and 4567 of 2011 (Respondents 4 and 5 are deleted as per order dated 28.2.2011) 1.Union of India, represented by its Secretary, Ministry of Home, Transport & Highways, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 2.The Authorised Officer-cum- Special District Revenue Officer, National Highways No.68 (Acquisition), Salem-4. 3.The Project Director, (N.H.68), National Highways Authority of India, 9/11, 2nd Floor, Omalur Main Road, Near New Bus Stand, Salem-636 004. 4.Tmt.Shanthi. (The fourth respondent is deleted as per order dated 28.2.2011) ... Respondents in W.P.Nos.4568 and 4569 of 2011 Writ Petition Nos.4566 and 4567 of 2011 are filed under Article 226 of the Constitution of India praying to issue a Writ of Declaration, declaring that the entire enquiry proceedings conducted by the second respondent in respect of proposed acquisition of the petitioner's lands morefully described in the schedule of the accompanying writ petition under the National Highways Act, 1956 is null and void for not following the directions of this Court passed in W.P.No.13286 of 2009 and W.P.No.16678 of 2010 by common order dated 25.1.2011. Writ Petition Nos.4568 and 4569 of 2011 are filed under Article 226 of the Constitution of India praying to issue a Writ of Declaration, declaring that the entire enquiry proceedings conducted by the second respondent in respect of proposed acquisition of the petitioner's lands morefully described in the schedule of the accompanying writ petition under the National Highways Act, 1956 is null and void for not following the directions of this Court passed in W.P.No.13186 of 2009 and W.P.No.16679 of 2010 by common order dated 25.1.2011. For Petitioner in all W.Ps. : Mr.T.V.Ramanujam, Senior Counsel for Mr.T.V.Krishnamachari For Respondents in all W.Ps. : Mr.J.Ravindran, for R1 Mr.M.Dhandapani, the then Special Government Pleader, for R2 https://hcservices.ecourts.gov.in/hcservices/ Mr.P.Wilson, the then Additional Advocate General, for R3. R4 and R5 in W.P.Nos.4566 and 4567 of 2011 are deleted. R4 in W.P.Nos.4568 and 4569 of 2011 is deleted. COMMON ORDER Writ Petition Nos.4566 and 4567 of 2011 are filed praying to issue a Writ of Declaration, declaring that the entire enquiry proceedings conducted by the second respondent in respect of proposed acquisition of the petitioner's lands morefully described in the schedule of the accompanying writ petition under the National Highways Act, 1956 is null and void for not following the directions of this Court passed in W.P.No.13286 of 2009 and W.P.No.16678 of 2010 by common order dated 25.1.2011. 2. Writ Petition Nos.4568 and 4569 of 2011 are filed praying to issue a Writ of Declaration, declaring that the entire enquiry proceedings conducted by the second respondent in respect of proposed acquisition of the petitioner's lands morefully described in the schedule of the accompanying writ petition under the National Highways Act, 1956 is null and void for not following the directions of this Court passed in W.P.No.13186 of 2009 and W.P.No.16679 of 2010 by common order dated 25.1.2011. 3. The relief sought for in all the four writ petitions are one and the same. By consent of all parties, all the writ petitions are taken up together and disposed of by this common order. 4. The brief facts of the case in W.P.Nos.4566 and 4567 of 2011 are as follows:- Petitioner, Mr.J.Rajan Babu, is the absolute owner of the land and building in Survey Nos.425/3, 425/4 and T.S.No.51/2, Ammapet Rural Village, Salem Taluk, Salem District. He purchased the same by way of sale deed dated 5.9.2005. Petitioner sold some portion of the above property to his sister B.Ramya, the fifth respondent (deleted at the instance of the petitioner) by way of registered sale deed dated 29.12.2006. The fifth respondent sold some portion of the above property to another sister S.Priya, the fourth respondent (deleted at the instance of the petitioner) by way of registered sale deed dated 27.12.2007. Accordingly, the petitioner and his sisters are in possession of the above properties. The above properties were proposed to be acquired under the National Highways Act, 1956. The paper publication under Section 3(A)(3) was made on 13.6.2008 for the Notification dated 6.5.2008 issued under Section 3-A of the National Highways Act, 1956. The petitioner gave his objections on https://hcservices.ecourts.gov.in/hcservices/ 8.7.2008 which was rejected on 5.9.2008. The Notification under Section 3D was published in the Gazette on 4.5.2009 and consequently publication was made in terms of Section 3G(3) of the Act on 5.6.2009. According to the petitioner, the Competent Authority without considering petitioner's objection attempted to fix the compensation for the lands proposed to be acquired arbitrarily. Hence, petitioner filed W.P.No.13286 of 2009 for the following relief:- "That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, in the nature of a writ, directing the 2nd respondent to give opportunity to the petitioner to place all the documents showing their right, title, and interest for the lands described in the schedule of the accompanying petition proposed to be acquired and also produce relevant materials regarding the market value of the lands for fixing the compensation, through our legal practitioner on the day to be fixed by this Hon'ble Court which are to be considered before determining the amount payable to the petitioner for lands proposed to be acquired under The National Highways Act 1956 and pass such other suitable orders as this Honourable Court deems fit and proper in the circumstances of the case and thus render justice." (emphasis supplied) 5. Petitioner further submits that for the very same project NH-68 different portion of petitioner's lands in Survey Nos.425/3 and 425/4 comprised in T.S.No.51, Ammapet Village, Salem District, were proposed to be acquired under the National Highways Act, 1956 and publication was made in terms of section 3-A of the National Highways Act, 1956 on 2.12.2009 and publication under Section 3G of the National Highways Act 1956 was issued on 6.7.2010. Fearing, that the respondents will fix the market value of the lands arbitrarily, the petitioner filed W.P.No.16678 of 2010 for a direction to the Competent Authority to fix the market value after giving the petitioner an opportunity to produce the relevant materials regarding the market value of the lands. 6. W.P.Nos.13186, 13286 of 2009, 16678 and 16679 of 2010 were disposed off by a common order dated 25.1.2011 which reads as follows:- "11. In view of the undertaking given by the learned Additional Advocate General, these writ petitions are disposed of with a direction to the competent authority, to determine the market value of the acquired land after permitting the petitioners to produce https://hcservices.ecourts.gov.in/hcservices/ documentary and oral evidence in support of the claim of the market value. 12. It shall also be open to the petitioners to place all the documentary evidence which are in their possession so as to enable the competent authority to fix the market value on the date of issuance of notice under Section 3-A of the Act. The respondents shall be bound by the undertaking given by the learned Additional Advocate General with regard to the payment of solatium and interest. 13. This order shall not prevent the petitioners from raising all the plea available to them, to challenge the vires of the Act, in the pending writ petitions. 14. The parties through their counsels are directed to appear before the competent authority on 04.02.2011 at 10.00 a.m., with all relevant evidence both documentary and oral. 15. With the above observation and direction these writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed." 7. The petitioner states that he went to the office of the Competent Authority on 4.2.2011 and was informed that the second respondent has gone on official duty to Villupuram. Hence, the petitioner sent a letter dated 4.2.2011 seeking 15 days' time to produce the relevant records to show the market value. On 8.2.2011 when the petitioner was in Delhi, the second respondent issued a notice calling upon the petitioner to appear on 11.2.2011 for enquiry. The petitioner sent a fax to the second respondent praying for a week's time. The second respondent thereafter issued another notice dated 12.2.2011 calling upon the petitioner to appear for enquiry on 18.2.2011. On that day, the petitioner appeared before the second respondent along with an advocate and produced relevant records to show the market value. They also pleaded for further time to produce further documents. It is further pleaded that the petitioner wants to summon the Village Administrative Officer and other private individuals to let in oral evidence regarding market value, because there was no sales in that area. According to the petitioner, the lands proposed to be acquired under the National Highways Act, 1956 is within the Salem Corporation Limit and the prevailing market value of the said land sought to be acquired is Rs.32,292/- per square meter. According to the petitioners, the authority, who took charge after 2.2.2011, informed the petitioner that she will fix a sum of Rs.300/- per square feet as compensation and that according to the petitioner, is not the market value and the second respondent's stand on the issue of compensation is arbitrary. https://hcservices.ecourts.gov.in/hcservices/ 8. Petitioner further states that almost the entire front portion of the petitioner's property is proposed to be acquired. Because of this severance, the remaining portion of the land will lose its value. Consequently, it is contended that the petitioner's transport business in which about 700 persons are working will be affected. Petitioner is compelled to change his place of business which involves a huge costs. The land in Ammapet Village has been sold for Rs.1,700/- per square feet and that is 300 meters away from the petitioner's land, proposed to be acquired. The Competent Authority is not acting as per the orders of this Court passed in W.P.No.13286 of 2009 and W.P.No.16678 of 2010 and their action is arbitrary and whimsical. 9. Petitioner's lands are acquired by means of two separate 3A notifications one dated 13.6.2008 and the second notification dated 2.12.2009. Hence, the petitioner has filed two Writ Petitions as above. 10. The brief facts of the case in W.P.Nos.4568 and 4569 of 2011 are as follows:- Petitioner and his wife Tmt.Santhi, the fourth respondent are the absolute owners of the lands in Survey Nos.413/3, 415/1C, 428/1, T.S.No.17/1, 19/1, 13/1A, Ammapet Rural Village, Salem Taluk, Salem District. They purchased the same by way of sale deed dated 17.5.1993. They are in possession of the lands. 11. The other facts are similar to the facts mentioned in W.P.Nos.4566 and 4567 of 2011. The petitioner, Mr.V.Saravanan,, earlier filed W.P.Nos.13186 of 2009 and 16679 of 2010, which were disposed of by a common order dated 25.1.2011, referred to supra. 12. At the time of hearing (i.e.) on 18.3.2011, it was stated that the second respondent issued notice under Section 3E(1) of the National Highways Act and the same was served on the petitioner in W.P.Nos.4566 and 4567 of 2011 on 16.3.2011 and on the petitioner's mother in W.P.Nos.4568 and 4569 of 2011 on 16.3.2011 without mentioning the quantum of the compensation amount that was deposited with the competent authority. This Court thereafter passed an order of interim stay till 24.3.2011. On 24.3.2011, the interim stay was extended until further orders of Court. 13. Heard Mr.T.V.Ramanujam, learned senior counsel for the petitioner in all the writ petitions; Mr.J.Ravindran, learned counsel for the first respondent in all the writ petitions and Mr.M.Dhandapani, the then learned Special Government Pleader appearing for the second respondent in all the writ petitions and Mr.P.Wilson, learned Senior Counsel, the then Additional Advocate General, appearing for the third respondent in all the writ petitions. 14. On 28.2.2011 when the matter was listed for admission, on behalf of the respondents the following counsel took notice for the respective respondents, viz., Mr.J.Ravindran, learned counsel for https://hcservices.ecourts.gov.in/hcservices/ the first respondent in all the writ petitions; Mr.M.Dhandapani, learned Special Government Pleader for the second respondent in all the writ petitions and Mr.P.Wilson, the then learned Additional Advocate General for the third respondent in all the writ petitions. At that point of time, the learned senior counsel appearing for the petitioners sought permission of this Court to delete respondents 4 and 5 in W.P.Nos.4566 and 4567 of 2011 and the fourth respondent in W.P.Nos.4568 and 4569 of 2011. Accordingly, respondents 4 and 5 in W.P.Nos.4566 and 4567 of 2011 and the fourth respondent in W.P.Nos.4568 and 4569 of 2011 were deleted and the Registry was directed to make necessary corrections. When the matters were listed on 2.3.2011, at the request of the learned counsel for the respondents, the matters were adjourned to 3.3.2011. The matters, however, were listed on 7.3.2011 and adjourned to 9.3.2011 and on the said date, the matters were directed to be listed on 14.3.2011. Thereafter, the matters were listed on 18.3.2011 and in view of the notice issued under Section 3E(1) of the National Highways Act, interim stay was granted till 24.3.2011 and it was extended until further orders. A counter affidavit has been filed by the second respondent on 14.3.2011 and the petitioners have filed reply affidavit on 22.3.2011. Thereafter, the matters were argued at length by the respective learned counsel. 15. Mr.T.V.Ramanujam, learned Senior Counsel appearing for the petitioners contended as follows:- (i) The direction issued by this Court by its common order dated 25.1.2011 in W.P.Nos.13186 and 13286 of 2009, 16678 and 16679 of 2010 has not been complied with and, therefore, the entire proceedings is vitiated. (ii) The competent authority has not followed the procedure laid down in Section 3G(7)(a) to (d) of the National Highways Act and, therefore, the writ petitions have been filed to declare the proceedings as null and void. (iii) The stand of the respondents that they gave sufficient opportunity to the petitioners on 4.2.2011, 8.2.2011, 11.2.2011 and 18.2.2011 is not true, as there was no hearing on 4.2.2011, 8.2.2011 and 11.2.2011. On 18.2.2011, when the petitioners appeared along with their Advocate, the petitioners wanted further time to produce further documents regarding the business and to let in oral evidence. The competent authority adjourned the matter to 23.2.2011. The last adjournment given by the competent authority was too short, as 19th and 20th February 2011 were Saturday and Sunday leaving only two working days (i.e.) 21.2.2011 and 22.2.2011. The petitioners did not have sufficient time to submit further materials. (iv) On 18.2.2011 the data sale deeds were not made available to the petitioners and no opportunity was given to the petitioners to comment upon the data sale deeds. Hence the proceedings are arbitrary. https://hcservices.ecourts.gov.in/hcservices/ (v) The respondents have stated in the counter-affidavit that the award was passed on 28.2.2011. Therefore, the entire proceedings culminating by way of an award, is hit by the doctrine of lis pendens. (vi) The sale deeds relied upon by the competent authority fixing the market value of the lands proposed to be acquired were not shown to the petitioners and, therefore, it is in violation of Section 3G(7)(a) to (d) of the Act. He pleaded legal malice. (vii) The documents relied upon by the competent authority relates to the sale effected between the siblings and does not reflect the true value, as the transaction is between the close relations. It cannot be the real market value. The sale deeds produced to establish the market value have not been considered. (viii) The competent authority has not fixed the compensation for the severance of the petitioners' lands and for the loss of business. Further, no compensation has been fixed for the damages caused to the petitioners and the acquisition of the lands is in a zig zag manner rendering the remaining lands unusable. (ix) There are two separate notifications for different extent of lands relatable to two different periods. The said notifications are relatable to the years 2008 and 2009 and, therefore, there cannot be a single award. The issuance of notice under Section 3E(1) by the competent authority knowing fully well that the matter is pending before this Court itself shows arbitrariness on the part of the respondent authority. 16. The learned Senior Counsel in support of plea in paragraph 15 (v), relied on the judgment in Goudappa Appaya Patil - vs. - Shivari Bhimappa Pattar and another reported in AIR 1992 KARNATAKA 71 to contend that the doctrine of lis pendens will apply to the proceedings initiated under Articles 226 and 227 of the Constitution of India and on the same lines he also relied upon the judgments in M/s.Chetak Electric and Iron Industries - vs. - Rajasthan Finance Corporation reported in AIR 1998 Rajasthan 42 and Sanjay Verma – vs. - Manik Roy and others reported in (2006) 13 Supreme Court Cases 608. 17. Insofar as the first plea that the competent authority has acted in violation of the orders of this Court is concerned, the learned Senior Counsel for the petitioners relied on the following judgments:- (1) Surjit Singh and others – vs. - Harbans Singh and others reported in 1995 (6) SCC 50. (2) Delhi Development Authority – vs. - Skipper Construction Co.(P) Ltd., and another reported in 1996(II) CTC 557. https://hcservices.ecourts.gov.in/hcservices/ (3) Hindustan Petroleum Corpn. Ltd., - vs. - Darius Shapur Chenai and others reported in 2005(5) CTC 789. (4) Tamilnad Mercantile Bank Ltd., Tuticorin – vs. - Tamilnad Mercantile Bank Shareholders' Welfare Association (DB) reported in 2006(2) CTC 97. (5) T.N.Godavarman Thirumulpad (102) -vs.- Ashok Khot reported in 2006(5) SCC 1. (6) All Bengal Excise Licensees' Association -vs. Raghabendra Singh and others reported in 2007(11) SCC 374. 18. Learned senior counsel for the petitioners relied upon the decision in Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Others reported in 2010(9) SCC 437 to plead legal malice and stated that since the authority acted contrary to the provisions of the Act, more particularly, Section 3G(7)(a) to (e) disregarding the rights of the petitioners causing prejudice, the proceedings will be hit by the principle of legal malice. 19. He further relied upon the judgment in Land Acquisition Officer & Mandal Revenue Officer – vs.- V.Narasaiah reported in 2001(3) JT SC 157 to state that the sale deeds produced to establish the market value of the lands is admissible even if the party to such sale is not examined. On the same issue he relied upon the decision in D.B.Rudrani and another – vs. - The Land Acquisition Officer (Sub Collector), Dharmapuri, Dharmapuri District and another reported in 2001 (2) CTC 146. He also relied upon the decision in Thomas and others – vs. - Industrial Tribunal and others reported in AIR 1961 Kerala 265 (Vol.48, C.93) (1) to contend that writ of declaration can be issued in the facts and circumstances of the present case. He, therefore, prayed for declaration that the land acquisition proceedings should be held to be null and void. 20. On the contrary Mr.P.Wilson, the learned senior counsel, the then learned Additional Advocate General appearing for the third respondent stated that the writ petition was filed on 22.2.2011 and it came up for admission on 28.2.2011 and the respondents took notice and sought time to get instructions. Thereafter, the matter was adjourned to 2.3.2011 and subsequently interim order was granted on 18.3.2011 based on the consequential proceedings viz., notice under Section 3E(1) of the Act on a contention that the authority is acting arbitrarily. The fact remains that on 28.2.2011 an award was passed and consequently the notice under Section 3E(1) of the Act came to be issued. This was done after giving the petitioners sufficient opportunity from time to time, which the petitioners failed to fully utilise. This Court, while disposing of the batch of writ petitions by a common order dated 25.01.2011, directed the authority to determine the market value after giving an opportunity to the land owners and enabling them to produce the relevant documentary and oral evidence in support thereof. Paragraph 11 of the order reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "11. In view of the undertaking given by the learned Additional Advocate General, these writ petitions are disposed of with a direction to the competent authority, to determine the market value of the acquired land after permitting the petitioners to produce documentary and oral evidence in support of the claim of the market value. 12. It shall also be open to the petitioners to place all the documentary evidence which are in their possession so as to enable the competent authority to fix the market value on the date of issuance of notice under section 3-A of the Act. The respondents shall be bound by the undertaking given by the learned Additional Advocate General with regard to the payment of solatium and interest. ........ .......... ....... ........ .......... ....... 14. The parties through their counsels are directed to appear before the competent authority on 4.2.2011 at 10.00 a.m. with all relevant evidence both documentary and oral." 21. In terms of the order passed as above, opportunity was given to the petitioners to submit documents. The petitioners could have tendered the oral evidence either on 4.2.2011 or on the subsequent dates. On the contrary the petitioners have been protracting the matter on some pretext or the other. Hearing was in fact given to the petitioners on various dates. On 18.2.2011 when the petitioners appeared with their Advocates, at their request the hearing was adjourned to 23.2.2001 and the petitioners failed to utilise the said opportunity and has chosen to rush to this Court. Therefore, the department cannot be found fault on the ground of not giving sufficient opportunity. This plea is without any basis and is deliberately made so as to restrain the authority from proceeding with the enquiry relating to determination of compensation. There is no breach of the Court's order dated 25.1.2011. The authority has given sufficient opportunity to the petitioners and did not act in haste as alleged. Since the acquisition proceedings is for the Highways, the authority has to proceed in the matter taking into consideration the larger public interest and the number of acquisition proceedings that they will have to undertake for this purpose. Therefore, based on records available, the authorities have proceeded to determine the compensation. If the award is not to the satisfaction of the petitioners, it is open to the petitioners to seek enhancement of the award in the manner prescribed by law. Without doing so, the petitioners have rushed to this Court by filing these writ petitions for a declaration that the proceedings is null and void. He prayed for dismissing the writ petitions with cost. https://hcservices.ecourts.gov.in/hcservices/ 22. Mr.M.Dhandapani, the then learned Special Government Pleader appearing for the second respondent and Mr.P.Wilson, learned senior counsel, the then Additional Advocate General appearing for the third respondent, further contended that the Honourable Apex Court has time and again emphasized the need to show restraints in matters relating to acquisition in larger public interest. They relied upon the decision in GIRIAS INVESTMENT PRIVATE LIMITED AND ANOTHER VS. STATE OF KARNATAKA AND OTHERS reported in 2007 (7) SCC 53 vide para 27 and another decision in RAMNIKLAL N.BHUTTA AND ANOTHER VS. STATE OF MAHARASHTRA AND OTHERS reported in 1997 (1) SCC 134. 23. Since the award has been passed even before the interim order was passed, any objection with regard to value or the documents relied upon for determining the compensation should be challenged before the appropriate forum as prescribed in the Act. 24. Mr.M.Dhandapani, the then learned Special Government Pleader appearing for the second respondent contended that at this point of time, the petitioners will have