THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.26365 of 2009 & 22935 OF 2010 ORDER : Both these writ petitions can be dealt with together and decided as they raise common questions in an identical fact situation. Both these writ petitions seek a Writ of Mandamus for declaring the public notice No. D/456/2007, dated 5.6.2009 issued by the Government of India, Ministry of Road Transport and Highways, Department of Road Transport and Highways, notifying the lands of the petitioners for building (widening/four laning, etc.) of National Highway No.9 between Kms 89.131 to 89.500 in Nalgonda Revenue Division of Nalgonda District as illegal and to set aside the same. The petitioners claim to be the owners of small extents of land situate in Sy. No. 39, Cheruvugattu village, Narketpally Mandal, Nalgonda District, abutting the existing National Highway No.9, connecting Hyderabad to Vijayawada. They are all carrying on petty businesses inasmuch as there are several establishments on the opposite side of the existing National Highway such as Kamineni Hospital, Kamineni Medical College, Oil Country Tubular Limited, Heritage Foods and several other industrial establishments. On coming to know from the newspapers issue dated 26.6.2009 of the publication of the impugned notice dated 5.6.2009, these present writ petitions came to be instituted. The petitioners assert that they have asked for the copies of the notifications published on 29.10.2008, 8.4.2009 and 5.5.2009, referred to in the impugned notification dated 5.6.2009, but the same were not furnished to them so far. Apart from the usual pleadings, the petitioners rested their case substantially on the plea that the impugned notification proposing to widen the existing National Highway is undertaken only on one side of the said road so as to save the highly influential and affluent institutions/industries situate on the opposite side. In paragraphs (4) and (6) of the affidavit filed in support of the writ petition, they have specifically asserted that the proposed acquisition of lands is a colorable exercise deliberately indulged in to save the institutions situate on the opposite side of the road from being adversely effected in any manner by the proposed widening of the road. In paragraphs (7) and (8) of the affidavit filed in support of the writ petition, they have specifically asserted that except in between Kms 89.131 to Kms. 89.500, the rest of the road in Nalgonda division is sought to be widened on an equal basis on either side from the centre of the existing road. It is further asserted that land situate on either side of the existing National Highway is proposed for acquisition excepting during the above mentioned stretch, where land belonging to the petitioner is exclusively proposed for acquisition without correspondingly proposing for acquisition of land on the opposite side. The petitioners, have specifically pleaded that land of an extent of 18 ft on the southern side is taken into reckoning for formation of the new road while land of an extent of 182 ft on the northern side is taken into reckoning for purposes of widening. Taking this averment of the petitioners into account and consideration, a learned single Judge of this court has passed orders on 19.3.2010 in WPMP No. 34315 of 2009 moved in WP No. 26365 of 2009, modifying the notification in such a way as to acquire the land in equal proportion on either side of the existing National Highway. The respondents have moved vacate application Nos. 1732 and 1823 of 2010 seeking vacation of these orders dated 19.3.2010. It will be appropriate to notice that Sri P.Ravinder Rao, working as General Manager (Technical) and the Project Director, National Highways Authority of India, Project Implementation Unit, Hyderabad, had sworn to the affidavit filed in support of the WVMP No. 1823 of 2010 while Sri Md. Jaheer, the Competent Authority and Revenue Divisional Officer, Nalgonda, Nalgonda District sworn to the affidavit filed in support of WVMP No. 1732 of 2010. Sri Ravinder Rao would point out that the notification under Section 3A of the National Highways Act, 1956 (for brevity referred to as the Act, henceforth), was published on 1.8.2008 in the Gazette of India while the said notification has also been published in two newspapers viz., the Hindu and Andhra Prabha, a Telugu daily newspaper on 25.8.2008 inviting objections for the proposed acquisition of land. Since, no objections have been received for the proposed acquisition, notification under Section 3D was got Gazetted on 8.4.2009. In the said notification, the names of the petitioners have also been mentioned. It was further pointed out that pursuant to the notification published under Section 3A, detailed survey was conducted and the nature of the land along with the names of the pattedars and enjoyers was got verified and accordingly the notification under Section 3-D was got published on 8.4.2009. It was stated that neither the notification dated 1.8.2008 nor the notification published on 8.4.2009 were challenged by the petitioners. What has been challenged by them was the notification got published under Section 3-G of the Act, which is only intended for the purpose of determining the claims that might be made for the purpose of payment of appropriate amount of compensation. Hence, it is pointed out that the impugned notification cannot, in isolation, be challenged. The Competent Authority and the Revenue Divisional Officer has also asserted that the notification in terms of Section 3A of the Act was got published on 1.8.2008 and also in two newspapers one of which a vernacular newspaper on 25.8.2008 providing 21 days time for submitting objections if any in terms of Section 3- C of the Act. Since, no objections have been filed and after completing the survey operations, the declaration under Section 3-D of the Act was got published on 8.4.2009, thus vesting the land in the government free from all encumbrances, in accordance with sub-section (2) of Section 3-D of the Act. The writ petitioners have chosen to question the notification issued in terms of Section 3-G which is intended for providing an opportunity for the claimants to produce necessary material in support of their claim for compensation. It is therefore pleaded that without raising objections as required in terms of Section 3-C of the Act, the present writ petitions could not have been maintained. Both the authorities in the affidavits filed in support of the vacate applications have also asserted that the alignment of the road, as proposed by the Detailed Project Report (DPR) Consultant has been examined by the Technical Experts and after proper and careful analysis of the Feasibility Report, the proposals for acquisition of land have been approved by the National Highways Authority of India. It is further contended by the learned Standing Counsel for the National Highways Authority of India that the alignment of road is based upon proper and careful analysis of the existing ground realities. Every attempt has been made to ensure that the National Highway would be laid as straight as it is possible. No attempt has ever been made to deviate from this principle. To the extent possible, the existing curves and bends are sought to be aligned in such a manner that they will not cause any hindrance for the smooth flow of vehicular traffic. This apart, a technical study has been undertaken to ensure that the motor vehicle traffic moves at a reasonable good speed of 100 km/hour and hence the alignment has been ordered based upon the Technical Study keeping in view the specific geometric requirements. It was further contended that the current construction of the National Highway has been undertaken for a designed speed of vehicles at 100 km/hour and for achieving that objective, certain specific requirements have got to be observed and hence the plea of the petitioners that the land on one side of the existing road has been acquired with a view to save the rich and influential establishments on the other side of the road is without any substance. Sri G.Vidya Sagar, learned counsel for the writ petitioners while reiterating the plea that the earlier notifications have not been published in accordance with law would submit that any exercise indulged in by the respondents with a view to favour the influential establishments situate on the opposite side of the existing highway, would disentitle the respondents from acquiring exclusively the lands of the petitioners, and in the process deprive them their right and source of livelihood. Sri Vidya Sagar, learned counsel would further point out that there is no whisper of a denial of this averment in the counter affidavits filed by the respondents and hence appropriate conclusion deserves to be drawn in this regard. The learned counsel for the petitioners would further contend that what is now sought to be undertaken by the respondents is the task of widening the existing National Highway and it would therefore stand to reason that land situate on either side of the road should be acquired in equal measure, from the centre of the existing road. I have considered the rival submissions made by the learned counsel, quiet anxiously. Entry 23 of the Union List of the VII Schedule of our Constitution provides for the necessary field relating to Highways, so that Parliament can exclusively make laws to treat some of the highways as National Highways. For achieving this and other related objectives, the National Highways Act, 1956, has been enacted by the Parliament providing for construction, development and maintenance of certain highways, declared as National Highways. Section 3A of the Act defines the expression `competent authority’ as meaning the person or authority authorized by the Central Government to perform the functions of the competent authority for such area as specified in the notification published in the official gazette. Sub-section (1) of Section 3A of the Act enables the central government, for a public purpose, if any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification declare its intention to acquire such land. Sub-section (2) thereof requires brief description of the land to be notified. While sub-section (3) requires the substance of the notification to be published in two newspapers one of which will be in the vernacular language. Section 3B empowers any person authorized by the central government to make any inspection, survey, measurement, valuation or enquiry. Such a person can also take levels, dig or bore into sub-soil, set out boundaries and intended lines of work. The authorized person can also mark such levels, boundaries and lines by placing marks and cutting trenches and do such other acts or things as may be laid down by rules made in that behalf by that Government. Thus, Section 3A of the Act requires the central government to notify its intention, for purposes of formation of a national highway, to acquire such land as is needed by it. Thereafter, the land can be entered upon for necessary inspection, survey and measurement work and demarcation of the lines on the land so proposed. Therefore, after the intention of the central government is published, the survey and demarcation work will be undertaken. Under Section 3C of the Act, any person interested in the land is entitled to raise an objection for using the land in question by submitting his objections within 21 days from the date of publication of the notification under sub- section (1) of Section 3A. Sub-section (2) of Section 3C enables the competent authority to provide an opportunity of being heard to the objector either in person or by a legal practitioner and only after hearing all such objections and after making such further enquiry if any, the competent authority was required to pass an order either allowing or disallowing the objections. Therefore, sub-section (2) of Section 3C has contemplated for a comprehensive enquiry to be undertaken by the competent authority into the objections raised by the person interested in the land. Section 3D would thereafter come into operation and play. If no objections are received for the proposed acquisition or objections received are found to be untenable, based upon the report submitted by the Competent Authority in that respect, the Central Government shall declare by notification in the Official Gazette that the land should be acquired for the purpose mentioned in the preliminary notification issued under sub-section (1) of Section 3A. Sub-section (2) of Section 3D declares that upon publication of the declaration in terms of sub-section (1) of Section 3D, the land shall vest absolutely in the central government free from all encumbrances. Thus, before publication of the final notification in terms of Section 3D, the Central Government shall also require to apply their mind to the nature of the objections and as to how the same have been dealt with by the competent authority in his report. Section 3F enables any person authorized by the Central Government to enter and do any other act necessary upon the land for the purpose of carrying out the objective notified under sub-section (1) of Section 3A. Section 3G of the Act makes it clear that for any land that is acquired, compensation as determined by the competent authority shall be paid for. Sub-section (3) of Section 3G makes it obligatory for the competent authority to have a public notice published in two local newspapers one of which shall be in a vernacular language inviting claims from all persons interested in the land so acquired. Therefore, the notification which is published by the competent authority in terms of sub- section (3) of Section 3G is only for the purpose of inviting claims, for determining appropriate amount of compensation payable for the land acquired, to the person interested having right to receive such amount of compensation. It is therefore manifestly clear that the notification in terms of sub-section (1) of Section 3G is only intended for inviting claims for determining the compensation payable to the person entitled to receive the same. Further, sub-section (5) of Section 3G makes it clear that that if the amount determined by the competent authority is not acceptable to either of the parties, the amount shall on an application by either of the parties be determined by the Arbitrator to be appointed by the Central Government. Therefore, at the stage of publication of the public notice under sub-section (3) of Section 3G, no objections with regard to validity of the notification published under Section 3A(1) can be entertained. Therefore, the provision contained under Section 3G is essentially intended for the purpose of determining the appropriate amount of compensation receivable by any person interested in the land proposed for acquisition, and hence neither the competent authority nor the arbitrator can undertake any question relating to the validity of the notification published under Section 3D. As was already noticed supra, prior to the publication of the declaration of Section 3D, the necessary survey operations and the technical feasibility of formation of the road is required to be examined. It is at that stage, the question becomes liable to be examined whether the land on either side of the existing national highway should be acquired or the acquisition of land only one side of the existing road will be subserving the purpose for which the land is sought to be acquired. At that stage it is liable to be examined as to whether any structures are also required to be acquired. It is therefore manifestly clear that the notification which is published in accordance with Section 3-A declares the intention of the Union Government clear in seeking to acquire land for the purpose of construction of the National Highway. When once this notification has been published, in terms of Section 3-C, objections can be filed by the interested persons and such objections are obviously bound to be considered before the declaration under Section 3-D is subsequently published. The scheme of Section 3-D makes it abundantly clear that upon such publication of the declaration, the lands vest in the central government free from all encumbrances. Since the property of no citizen can compulsorily be acquired without making a provision for payment of adequate compensation, Section 3G has contemplated the claims to be examined by the Competent Authority and for determination of the amount of compensation so payable. The amount of compensation so determined can be challenged in terms of Section 3H(5) before an Arbitrator. When once a National Highway is formed, it shall vest in the Union of India in accordance with Section 4 of the said Act. It is noticed from the counter affidavits filed in these cases that the respondents have scrupulously followed the procedure prescribed under the various provisions of the National Highways Act, 1956. The notification proposing acquisition of land for the purposes of construction/widening of the existing National Highway No.9 connecting Hyderabad to Vijayawada has not only been gazetted on 1.8.2008, but it was also published in newspapers one of which being a vernacular newspaper, Andhra Prabha, on 25.8.2008. The petitioners herein had thus an opportunity to object to the same within 21 days of its publication. They have not chosen to do so. Subsequently, the survey operations have been carried out and the declaration under Section 3-D was also gazetted and notified on 8.4.2009. Both the aforementioned notifications are not under challenge at all. In fact the writ petitioners have asserted that no such notifications have been published and hence they did not challenge the same. In the face of the averments contained in the counter affidavits, which were not challenged in any manner subsequently, it must be held that the notifications in accordance with Sections 3A and 3D were published and that they went unchallenged. If the writ petitioners had an opportunity to raise their objections for the proposed acquisition but did not avail the same, they cannot now turn round and question the validity of the acquisition after the publication of the declaration in terms of Section 3D of the Act. The present notification is only intended for securing determination of adequate amount of compensation to the claimants. The notification published under Section 3G does not give appropriate cause of action for the petitioners to call in question the validity of the notification/declaration published earlier, in terms of Section 3D. As was already noticed supra, the essential claim of the petitioners is that the respondents prompted by an extraneous consideration to save the structures existing on the other side of the existing national highway have proposed to acquire the land of the petitioners herein without touching the land and or structures belonging to those establishments. This contention is liable to be tested in the background of the plea raised by the respondents that all national highways to the extent feasible should be laid in a straight line and wherever it is inevitable to take curves, based upon geographical conditions, standards and the suitability of the land, decisions have to be taken. If a curve is unavoidable, appropriate calculations will have to be made for countering centrifugal and centripetal forces. These are all matters of engineering technical calculations. Added to that, the respondents have specifically pleaded that the present national highways are formed with a designed speed of maintaining 100 km/hour for the flow of the vehicular traffic. Therefore, no firm opinion can be pronounced without collecting lot of evidence on the subject matter, as to whether the land could have been acquired in equal proportions on either side of the existing road or not. Unless, these basic facts are ascertained, the question of bias or favouritism is incapable of being answered with any degree of assuredness, though the High Court while exercising the power available to it under Article 226 is not prevented or reluctant absolutely from collecting any such evidence, but nonetheless by way of prudent practice adopted over a long period of time, such an exercise of collection of evidence under Article 226 is best avoided. Hence, it is considered that wherever disputed questions of fact are required to be resolved by collecting evidence, it was construed that writ court is not the proper forum in such circumstances. (See DLF Housing Construction Pvt. Limited v. Delhi Municipal Corporation – AIR 1976 SC 386). Similarly, the question as to whether the respondents were favourably inclined to save the establishments on the opposite side of the existing road from being in any manner impacted by the proposed widening of the national highway, is a question again which is not liable to be agitated under proceeding under Article 226 inasmuch as the necessary facts will have to be gathered only by collecting evidence. Questions involving malice in law perhaps can be determined on the basis of the existing material on record. But, malice in fact or bias or ill will cannot be so determined in isolation of the necessary foundational facts. (See Kamini Kumar Das Ghoudhury v. State of West Bengal – AIR 1972 SC 2060 at Page No. 2064, Regional Manager v. Pavan Kumar Dubey – AIR 1976 SC 1766 at Page No. 1772, Gunwant Kaur v. Municipal Committee, Bhatinda – AIR 1970 SC 802). In these circumstances, I am not inclined to return any finding on the contention of the petitioners that the respondents acted deliberately and wantonly, to their prejudice by not proposing to acquire the land on the opposite side of the existing national highway. Perhaps if the writ petitioners have availed the opportunity of raising objections in this regard, the Competent Authority would have been required to deal with the same. Further, the petitioners have not hired the services of any technical expert and gathered any contra opinion to doubt the correctness or veracity of the findings recorded by the DPR Consultant that land on only one side of the existing National Highway is essentially required for purposes of it’s widening, but not on both sides. In the absence of any such credible opinion from any subject expert, it will be difficult for one to characterize the decision to acquire land only on one side of the existing National Highway is tainted by bias or ill will. Though a contrary opinion from a subject expert may not be a decisive factor, but, yet, it would certainly enable the court to call for the attention of the Central Government to the same. Unfortunately, there was no such material on record. For all the aforesaid reasons, these writ petitions are liable to be dismissed. Hence, they are dismissed. No costs. ------------------------------------ Knk NOOTY RAMAMOHANA RAO,J Dt : 8th November 2010