THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT PETITION No. 257 of 2011 Date: 05.12.2011 Between: M.A. Rahman & another ..... Petitioners AND The Land Acquisition Officer-cum- Revenue Divisional Officer, Nalgonda & others. .....Respondents Counsel for the Petitioners : Sri C. Yadagiri Counsel for Respondent No.1 : GP for Land Acquisition Counsel for Respondent Nos.2 & 3: Sri S.S. Varma, SC for NHAI The Court made the following : O R D E R: This Writ Petition is ﬁled for a mandamus to declare the action of the respondents in proceeding with laying of toll plaza at K.M. No. 117 of National High Way No. 9 in agricultural lands situate in Survey Nos. 194, 195, 196, 197 and 198 of Korlapahad Village, Kethepalli Mandal, Nalgonda District, without issuing any notice or following due process of law, as illegal and arbitrary. I have heard Sri C. Yadagiri, learned counsel for the petitioners, learned Assistant Government Pleader for Land Acquisition representing Respondent No.1 and Sri S.S. Varma, learned Standing Counsel for National Highways Authority of India representing Respondents 2 and 3. In their aﬃdavit, the petitioners averred that the respondents have acquired certain lands of the petitioners for widening the existing National Highway No.9 in the month of July 2009. Without issuing any notice or following due process of law, the respondents are again seeking to acquire certain other lands of the petitioners for establishment of a toll plaza at K.M.No. 117 in stead of at K.M.No. 120 as allegedly ﬁxed earlier. The petitioners therefore termed the said action as being violative of Article 300-A of the Constitution of India. A detailed counter-aﬃdavit is ﬁled by Respondent No.2, General Manager (Tech.) and Project Director, National Highways Authority of India, P.I.U.(BOT), Hyderabad. It is inter alia stated that a notiﬁcation under Section 3-A of the National Highways Act, 1956 (for short, ‘the Act’), proposing to acquire the lands situate in Korlapahad Village, Nalgonda District, for the purpose of widening the existing 4/6 laning on Hyderabad-Vijayawada Section of N.H.9, was published in gazette notiﬁcation dated 24.01.2011 and also in local newspapers on 15.02.2011, that subsequently notiﬁcation under Section 3- D of the Act was published on 31.05.2011 and that with the publication of the declaration, the land stood vested in the government free from all encumbrances. It is further averred that thereafter, notiﬁcation under Section 3-G of the Act was issued for holding award enquiry. The respondents have accordingly, denied the allegation of the petitioners that no notice was issued or procedure under the Act has not been followed. A reply aﬃdavit is ﬁled by petitioner No.1, wherein he has relied upon Rule 8 of The National High Way Fee (Determination of Rules and Collection) Rules, 2008 and stated that the location of toll plaza is not in accordance with the said rule, as the proposed toll plaza is within 60.650 K.Ms. of another toll plaza. At the hearing, learned counsel for the respondents have brought to the notice of this Court that in respect of the same notiﬁcation, two persons have ﬁled Writ Petition No. 12473 of 2011, wherein this Court has upheld the acquisition. He has placed before the Court a copy of the order, the relevant portion of which reads as under: “ The land belonging to the petitioners was notiﬁed for acquisition under Section 3-A of the National Highways Act, 1956 (for short ‘the Act’) for establishment of a toll plaza on NH-9 from Hyderabad to Vijayawada section. The petitioners have ﬁled an objection petition under Section 3-C of the Act. In their objection petition, the petitioners have stated that the land belonging to the Government in Survey No. 285 of Inupamula Village, Kethepally Mandal, is available at a distance of 1 km from the land of the petitioners, which is notiﬁed for acquisition. The objections ﬁled having been rejected, the petitioners have ﬁled the present writ petition. A perusal of the impugned proceedings shows that the petitioners’ objection relating to the availability of alternative government land was referred to the Requisition Department i.e. NHAI, Hyderabad, to oﬀer technical and feasibility report and that in the proceedings, dated 16.03.2011, the General Manager (Technical) & Project Director, National Highways Authority of India, has reported that the said proposal of acquiring the land belonging to the Government for establishing toll plaza is technically not feasible. Having regard to the said report, respondent No.4 has rejected the petitioners’ objection. The learned counsel for the petitioners stated that no reasons have been stated by respondent No.4 for rejecting the petitioners’ objection, except placing reliance on the technical report of the General Manager (Technical) & Project Director. In my opinion, this Court while exercising jurisdiction under Article 226 of the Constitution of India is only concerned with the decision making process and not with the merits of the decision. Respondent No.4 has referred the petitioners’ objection to the General Manager of the Requisition Department, who evidently vide his report, dated 16.03.2011, opined that it is not technically feasible to utilize the alternative land suggested by the petitioners for establishment of toll plaza. Therefore, in my opinion, the decision of respondent No.4 cannot be termed as either illegal or arbitrary.” Learned counsel for the petitioners sought to distinguish the above order of this Court by stating that the contention relating to Rule 8 of the 2008 Rules has not been referred to and dealt with therein. At the hearing, the learned Standing Counsel appearing for National Highways Authority of India has stated that even though there is no speciﬁc reference to the enquiry made under Section 3-C of the Act in the counter-aﬃdavit, the fact remains that a notice under Section 3-C of the Act was issued inviting objections and that the objections ﬁled by the petitioners in Writ Petition No.12473 of 2011 were considered and rejected. Indeed, this Court has taken note of the said fact in the above re-produced order. The present Writ Petition is ﬁled on the premise that no notice was issued and proceedings under the Act were not initiated. This plea has turned out to be wholly incorrect, as the petitioners failed to controvert the averments contained in the counter-aﬃdavit with respect to the publication of the notices under Sections 3-A, 3-D and 3-G of the Act. The petitioners are unable to controvert the plea of the respondents that an enquiry under Section 3-C of the Act was held. The petitioners have not ﬁled any objections whatsoever in response to the notice issued under Section 3-C of the Act. If the petitioners had any serious objection regarding acquisition, they ought to have ﬁled objections and questioned the action of the respondents if those objections were rejected. The petitioners allowed the acquisition proceedings to further advance before ﬁling the present Writ Petition. They have not even raised the plea based on Rule 8 of the Rules in the affidavit. Only for the ﬁrst time, in the reply aﬃdavit, such a contention has been raised, thereby denying the respondents of the opportunity of meeting this plea. Even if this plea is based on a legal provision, still, a ﬁnding thereon is possible only on the ascertainment of the fact as to whether the toll plaza is proposed to be located within the prohibited distance under Rule 8. This apart, the nature of the Rule and its relevancy on the acquisition of the land of the petitioners, need to be considered and adjudicated. Such a course would have been possible if the petitioners have raised their objections before the competent authority in the enquiry under Section 3-C and also in the present Writ Petition at the right earnest. Obviously, after the Award has been passed, the petitioners raised this plea which this Court is not prepared to consider at this stage, as the petitioners have not come out with true facts in the Writ Petition. For the aforementioned reasons, the Writ Petition is dismissed. No costs. ----------------------------------------- (C.V. NAGARJUNA REDDY, J) 5th December 2011 ksld