IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition Nos.18688 to 18694 and 18066 to 18074 of 2011 and M.P.Nos.1 and 2 of 2011 (in each cases) A.R.Adil Basha ..Petitioner in W.P.No.18688/2011 A.Shaheen ..Petitioner in WP 18689/2011 A.Rahimunisa ..Petitioner in WP 18690/2011 R.Rehana Begam ..Petitioner in WP 18691/2011 M.Ibrahim Shareef ..Petitioner in WP 18692/2011 J.Vidyachand ..Petitioner in WP 18693/2011 R.Mohammed Gouse ..Petitioner in WP 18694/2011 K.Dhanapal ..Petitioner in WP 18066/2011 D.Thirugnanasambandam ..Petitioner in WP 18067/2011 D.Durai Natesan ..Petitioner in WP 18068/2011 P.Saravanan ..Petitioner in WP 18069/2011 T.Selvaraj ..Petitioner in WP 18070/2011 K.Ramamurthy ..Petitioner in WP 18071/2011 K.Kulanthaivel Naikar ..Petitioner in WP 18072/2011 VPN Babu ..Petitioner in WP 18073/2011 M.Shanmuga Mudaliar ..Petitioner in WP 18074/2011 Vs. 1. The Project Director (A/C), National Highways Authority of India, (Ministry of Road Transport and Highways), O/o The Project Director PIU, No.10, Govindasamy Nagar, Vazhudhareddy Post, Villupuram-605 401. 2. The Competent Authority/Special District Revenue Officer (LA), National Highways, Collectorate, Villupuram. .. Respondents in all petition's Writ Petition No.18688 of 2011 to WP.18694/2011 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the paper publication dated 3.12.2010 made in Tamil Newspaper "Dinamani" Chennai Edition, and the order made in NHAI/PD/VPM/Tdm- https://hcservices.ecourts.gov.in/hcservices/ K'Giri/LA/2011/625, dated 21.5.2011 by the first respondent and the order made in Na.Ka. A/SDRO/LA/NH/958/2010-3, dated 20.7.2011 passed by the second respondent and quash the same and consequently forbear the respondents 1 and 2 from laying Gingee bye-pass road in Tindivanam to Krishnagiri Section of NH-66 in pursuant to the notification dated 3.12.2010 made in Tamil Newspaper "Dinamani" Chennai Edition, by the first respondent in terms of alignment proposal-III through the petitioner's lands comprised in R.S.No.68/1A2 68/3A1B, 49/2B1A; 68/1A;1B; 56/2; & 48/SA; situated at Sakkarapuram Village, Gingee Taluk, Villupupram District. WP No.18066 to 18074 of 2011 Calling for the records relating to the paper publication dated 03.12.2010 made in Tamil News paper 'Dinamani' Chennai Edition and the order made in NHA1/PD/VPM/ Tdm-K Giri/LA/2011/625 dated 21.05.2011 by the 1st respondent and quash the same and consequently forbear the respondents 1 and 2 from laying Gingee bye pass road in Tindivanam to Krishnagiri Section of NH-66 in pursuant to the notification dated 03.12.2010 made in Tamil News paper 'Dinamani' Chennai Edition by the 1st respondent in terms of alignment proposal- III, through the petitioner lands comprised in S.No.83/8C, 84/2A, 84/2B, 84/3, 84/4, 84/5 and 84/6, 118/6 and 129/3C, 106/2, 106/3, 106/4A & 4B and 107/5, 105/1, 107/8B, 107/8C and 107/9, 107/8A and 129/1, 96/1B and 96/2, 113/3 and 118/7 and 128/1 respondent, at Sirukadambur Village, Gingee Taluk Villupuram District. For petitioners : Mr.G.Ethirajulu For respondents : Mr.P.Wilson, Senior Counsel for R-1 Ms.V.M.Velumani, Spl.G.P. for R-2 ORDER In these batch of Writ Petitions, the petitioners challenge the Notification issued under Section 3-A of the National Highways Act, 1956 and the order passed under Section 3-C(2) of the said Act. 2. Since the pleadings of the petitioners in these Writ Petitions, are common and the issue involved in all these Writ Petitions is one and the same, it is enough to discuss the facts of W.P.No.18688 of 2011, which will cover all the other Writ Petitions also. 3. The facts in W.P.No.18688 of 2011 are as follows: (a) The petitioner is the owner of agricultural lands comprised in R.S.No.68/1A2 of an extent of 1000 Sq. Metre situated at Sakkarapuram Village, Gingee Taluk, Villupuram District. The first respondent in Tamil newspaper "Dinamani" dated 3.12.2010 "Chennai Edition" published a notification as if the lands owned by the petitioner and others are required by the Government for laying bye- https://hcservices.ecourts.gov.in/hcservices/ pass road in Highways No.66, namely Tindivanam-Krishnagiri segment near Gingee Town. (b) The survey and alignment of the en-route was entrusted to a private consultancy company, namely M/s.Mukesh Associates, whose interest is only in respect of making profit and would not care for public interest and the monetary loss caused to the affected persons. Originally, the survey was conducted and two alignment options, namely, Option-I and Option-II were proposed for laying Gingee bye- pass road. However, taking into consideration the expenditure, the District Collector has given Option-4 to avoid any bye-pass road being laid inside the Gingee town itself disturbing the residents of Gingee town. The object of laying bye-pass road is only to avoid congestion in the thickly populated and busiest portion in a particular town by passing of heavy vehicles and movement of heavy traffic. (c) The acquisition authority and the contractor, for the reasons best known to them, rejected the objection of the District Collector and proposed Option-III which runs through the Gingee town itself, disturbing schools, agricultural lands, residential buildings and natural draining water sources to be let in Sankarabarani river which lies on the Eastern boundary of Gingee town and if the Green marked option-III road is implemented, there are possibilities of the entire Gingee town to be submerged during the rainy season and cause substantial monetary loss, life and inconvenience to the residents of Gingee town. The general public in Gingee town was kept in dark when all these options were debated by the contractor with the Revenue authorities. However, the then District Collector was bold enough to oppose the proposal Option-III and recommended only Option- IV through his report made in Rc.A/SDRO/LA.NH/45/2010-3 dated 31.8.2010, inspite of the report of the respondents and the consultancy service stick on to their own proposal for the reasons best known to them, in order to satisfy some of the big-wigs including the contractors. (d) After knowing the publication, the petitioner made representation to the second respondent through his objection letter dated 16.12.2010 with a fond hope that he will consider the grievances expressed by him. However, the petitioner reliably understands that the second respondent merely forwarded the objection to the first respondent. Similar representations were made by all the 31 land owners whose lands were proposed to be acquired. Thereafter, the second respondent in his office proceedings Na.Ka.A/SDRO/LA/NH/958/2010-2, dated 25.5.2011 called upon the petitioner and others to submit their objections for acquisition and to attend for enquiry to be held on 2.6.2011 and on various other dates. The second respondent also enclosed an order made by the first respondent in his office proceedings NHAI/PD/VPM/Tdm- K'Giri/LA/2011/625, dated 21.5.2011 sent to the second respondent. https://hcservices.ecourts.gov.in/hcservices/ (e) Mere perusal of the said order established the fact that the objections already filed by the petitioner and others, were rejected by the first respondent and a direction was issued to the second respondent not to deviate the present bye-pass road alignment and to take necessary action to give suitable compensation to the land owners and in the said order, it is stated that already Section 3-C (2) enquiry under the National Highways Act, was completed by the second respondent. The above order annexed along with the enquiry notice is nothing but a mockery of quasi-judicial process and opposed to all canons of quasi-judicial function by the competent authority. Therefore, the petitioner and other land owners were forced to make an objection on 2.6.2011 and also an additional objection on the same day before the second respondent stating that he had no jurisdiction to conduct an enquiry in view of the order dated 25.5.2011 passed by the first respondent who is the superior officer to the second respondent. (f) On going through the objections, the second respondent, shouted against the petitioner and refused to conduct an enquiry and left to his office room. However, his subordinate, who claims to be a Land Acquisition Tahsildar, put some questions on the petitioner and his answers were recorded in a white paper and also obtained signature of the petitioner and abruptly directed the petitioner to leave the office, except this nothing happened on that date and no enquiry was conducted inspite of the demand made by the petitioner. Therefore, the petitioner and others have no other option except to leave the place. The second respondent adopted the same method in the enquiry held on different dates. (g) Under the provisions of National Highways Act, the competent authority has to follow certain procedures, but both the respondents have not followed the same, which vitiates the entire notification itself, besides that, the first respondent has decided to the objections raised by the land owners on 25.5.2011 even before the enquiry dated 7.6.2011 and also furnished the copy of the same to the petitioner as well as the other individuals who are similarly placed. The second respondent in his office proceedings Na.Ka.A/SDRO/LA/NH/958/2010-3, dated 20.7.2011 rejected the objection filed by the petitioner. The mere perusal of the order clearly indicates the fact that the competent authority has not considered any of the objections and jurisdictional point raised by the petitioner. (h) The respondents without following the statutory procedures and provisions of the Act, hurriedly made an attempt to lay the bye- pass road at the instigation of the contractor. Therefore, at any moment, they may commence the work inside the Gingee town and if once the work commences, it will create chaos, and confusion, which leads to agitation by the general public. https://hcservices.ecourts.gov.in/hcservices/ (i) Therefore, for these reasons, the petitioner, having no other alternative remedy, except to invoke the jurisdiction of this Court under Article 226 of the Constitution of India by filing W.P.No.18688 of 2011 to issue a Writ of Certiorarified Mandamus, to call for the records relating to the paper publication dated 3.12.2010 made in Tamil Newspaper "Dinamani", Chennai edition and the order made in NHAI/PD/VPM/Tdm-K'Giri/LA/2011/625, dated 21.5.2011 by the first respondent and the order made in Na.Ka.A/SDRO/LA/NH/958/2010-3, dated 20.7.2011 passed by the second respondent and quash the same and consequently forbear the respondents 1 and 2 from laying Gingee by-pass road in Tindivanam to Krishnagiri Section of NH-66 pursuant to the notification dated 3.12.2010 made in Tamil newspaper "Dinamani", Chennai Edition by the first respondent in terms of alignment proposal-III through the petitioner's land comprised in R.S.No.68/1A2 situate at Sakkarapuram Village, Gingee Taluk, Villupuram District. 4. The petitioner challenges the impugned order on the following grounds: 4.1. The impugned paper notification dated 3.12.2010, the order dated 21.5.2011 passed by the first respondent and the order dated 20.7.2011 issued by the second respondent suffers from illegality, irregularity and in excess of jurisdiction. 4.2. The first respondent has not described the lesser extent of the land out of larger extent of proposed lands to be acquired, and it has not been properly described by giving the name of the owner, boundaries and measurements. Therefore, the owners of the land is not in a position to know which is the exact portion of the land that the respondents sought to acquire. Because of the vagueness and lack of material particulars, the notification itself is non-est in law in terms of the decision of the Supreme Court reported in 2005 (13) SCC 477 (Competent Authority Vs. Barangore Jute Factory). 4.3. The alignment Option-III for proposed Gingee bye-pass is unworkable and it will take away the purpose for which a bye-pass road is proposed for Gingee town, since 1/4th of the Gingee town will be affected by laying the bye-pass road, which passes through the Gingee town itself. 4.4. The respondents have failed to take note of the fact that a duty is cast upon the acquiring authority who has delegated his power to private consultancy service, namely M/s.Mukesh & Associates to decide the alignment which will not take care of the hardship that has to be undergone by the general public, but on the other hand, the Collector is only interested in making big profit by doing lesser work. https://hcservices.ecourts.gov.in/hcservices/ 4.5. The respondents 1 and 2 should have accepted the proposal made by the District Collector in his report dated 31.8.2010, since it will not cause hardship to the petitioner and the other land owners. 4.6. The first respondent erred in passing the order dated 21.5.2011, rejecting the objections raised by the petitioner and the other land owners and holding that the enquiry under the said Act was already done and a direction was given to the second respondent to ascertain the compensation which has made the proposed enquiry which was to be held on 2.6.2011 as fatal, meaningless, academic in nature and violative of principles of natural justice. 4.7. The respondents failed to note that the mandatory procedure as contemplated under Section 3 of the National Highways Act, has not been followed, which will vitiate the entire notification itself. 4.8. The respondents have failed to take note of the fact that under law, it is well settled principle that where a statute requires a particular thing or act to be done in a particular manner, it has to be done only in that manner and if there is any deviation of procedure as contemplated under the Act, it will vitiate the entire exercise of power. 4.9. The respondents have failed to note that in the notification, the land owner names have not been indicated and such a failure vitiates the entire proceedings. 4.10. The second respondent ought to have followed the procedure contemplated under Section 3-C(2) of the said Act and failure to follow the same, vitiates the entire procedure. 4.11. The first respondent failed to comply with the mandatory requirement as contemplated under Section 3-A(3) of the said Act and the publication was given only in the Tamil newspaper, Chennai Edition, and to his knowledge, publication has not been issued in English newspaper and the Tamil newspaper Dinamani is not largely circulated in the Gingee town. 4.12. The acquisition proceedings initiated by the first respondent is contrary to the project report wherein, Gingee bye-pass should start at 63/090 km and end with 71/260 km to the total length of 10.76 kms, but the same was reduced 4.77 kms. at the cost of great loss and prejudice to the petitioner and others. 4.13. The objections raised by the petitioner and others were simply rejected without assigning any reasons and the alignment options were not made by the Government Engineers, but only by an individual company. https://hcservices.ecourts.gov.in/hcservices/ 4.14. The first respondent, in Clause 1.4.3 of the report held that across Sankarabarani river, a bridge should be constructed, but contradictory to the said stand, now rejected the plea of the Collector on the ground that the construction of the bridge to the length of 308 metres will cost substantial amount and thereby put the general public in hardship even without considering the objections submitted by the District Collector dated 31.8.2010. 4.15. The respondents are more particular and concerned about the cost of construction than the environment, which attitude of the respondents cause substantial loss, not only to the property, but also to the human life by inhaling carbon monoxide emanated from the passage of heavy vehicles inside the Gingee town. 4.16. The respondents have failed to note that if the alignment option-III is adopted, it will cause great inconvenience to the school going children, but these aspects were not even considered by any of the authority, and they are more concerned only about the money, but not the value for the human life. 4.17. The second respondent in the impugned order dated 20.7.2011 has not considered and discussed several objections raised by the petitioner and the consequences thereon, but simply rejected the objections holding that mistakes will be rectified and therefore, the order of rejection is not objective and reasonable. 4.18. The second respondent has not mentioned the objections raised by the petitioner in the tabular column contained in the impugned order, but mechanically stated as if the petitioner has raised only the market value of the lands and alternative way. The said approach of the second respondent vitiates the entire proceedings. 4.19. The second respondent has not conducted any enquiry on 2.6.2011 as mentioned in the order, but left the place abruptly instructing his subordinates to get the signature of the petitioner in a written statement, even without giving an opportunity to him to verify the same. 4.20. The impugned order passed by the second respondent is only suggestive in nature and the said suggestion will go to show that the objections raised by the petitioner are valid. Under the said circumstances, the second respondent has accepted the petitioner's plea of re-alignment. 4.21. The second respondent has not given any valid reason for not putting up the bridge across the river, except simply stating that there is no place to bend the bye-pass road without even supplying sufficient documentary evidence and the report of the technical persons to substantiate the same. https://hcservices.ecourts.gov.in/hcservices/ 4.22. The second respondent ought to have considered the objections raised by the petitioner independently, but simply rejected the same based on the order dated 27.6.2011 passed by the first respondent. The said approach of the second respondent has made the enquiry as an eye-wash and without application of mind. 4.23. In any event, the impugned orders passed by the respondents are illegal, unsound and liable to be set aside by this Court. 5. The first respondent has filed counter affidavit, inter-alia stating as follows: 5.1. The writ petitions are neither maintainable in law nor on facts and the same are liable to be dismissed in limine, as they are devoid of merits. National Highways Authority of India has taken up the project of improving NH-66 in the stretch from Tindivanam to Krishnagiri for rehabilitation and upgrading to 2 lane with paved shoulders configuration of the stretch with by-passes for built up area of the towns. The Project Implementation Unit, Villupuram has been entrusted with the task of implementing the above project. As a part of the project which aims to reduce congestion and to ensure free flow of the traffic at Gingee Town, a by-pass road has been proposed and the Special District Revenue Officer, Villupuram, 2nd respondent herein, has been appointed as Competent Authority for acquisition of private properties required for the formation of the by-pass. Initially, National Highways Authority of India proposed 4 laning of the Tindivanam-Tiruvannamalai-Krishnagiri section from Km.38/150 214/00 of NH-66 and the proposed Gingee bypass was to start at Km 63/090 and end at Km 71/260 with a total length of 10.76 km. Subsequently, due to financial constraints, the proposed four lane was instructed to be restructured as 2 lane by the NHAI and the new alignments were proposed by the detailed project report consultants for Gingee bypass. 5.2. The detailed project report consultants proposed for a by- pass on the said 2 lane starting at Km.65.548 at Sakkarapuram and ends at Km.68.625 with a length of 4.77 km traversing through Sakkarapuram, Sirukadambur and Krishnapuram Villages (which is claimed to be the Option III in the affidavit filed by the petitioner). Based on the representations made by the villagers including the petitioners, the District Collector, Villupuram on 30.1.2010 inspected the alignment proposed by the National Highways Authority of India as well as the alternative alignment suggested by the petitioners and sent a report dated 5.2.2010 to the Secretary to Government, Highways and Minor Ports Department, Secretariat, Chennai-9. He suggested that instead of the alignment proposed by the NHAI, the by-pass can be laid starting from Nangilikondan Village, passing through Perumbugai, Melkalavoy, Sirukadambur and Krishnapuram Villages and joining the National Highways skirting the Gingee Fort https://hcservices.ecourts.gov.in/hcservices/ without touching the Gingee Town. By the said letter, he had requested the Secretary to Government of Tamil Nadu to address the NHAI for passing appropriate orders. Thiru.M.Krishnaswamy, Member of Parliament has also requested the Minister of Road Transport and Highways, New Delhi, in this regard. 5.3. The Union Minister of Road Transport and Highways, New Delhi considered the request and held that the aforesaid suggestion is not feasible, vide his letter NHAI/TECH/TN/VIP/2010, dated 28.7.2010. The Union Minister rejected the alignments proposed on the ground that: (1) The detailed survey of the alternative alignment could be completed only with the help of District Administration after a lot of resistance from the people due to large scale land acquisition and demolition of residential structures. (2) The alternative alignment is not only longer and costlier, but also affecting more land, structures and farm wells. (3) It requires construction of a major Bridge across Sakkarabarani River for 308 m. (4) The longer stretch may also involve increased project cost due to dislocation of large number of structures and farm wells. (5) The project appraisal committee has asked the executants to scale down the cost of the project, whereas, increase in length will automatically escalate the project cost. 5.4. The Special District Revenue Officer/competent Authority, Land Acquisition, Villupuram had initiated action for notification of the acquisition of the lands required for the said project under Section 3-A(1) of the National Highways Act, 1956. However, the District Collector, Villupuram again in his letter dated 31.8.2010 had requested the Secretary to Government, Highways and Minor Ports Department, Secretariat, Chennai-9 to address the NHAI for re- considering their decision regarding Gingee by-pass, since the by- pass proposed by the NHAI is close to the town and it will not serve the purpose of avoiding congestion. The Notification under Section 3- A(1) was published in the Gazette of India (Extraordinary) No.2282 No.S.O.2701(E) of Ministry of Road Transport and Highways dated 2.11.2010, notifying the Central Government's intention to acquire the lands in Krishnapuram, Sirukadambur and Sakkarapuram Villages, Gingee Taluk, Villupuram District comprising an extent of 304579 Sq.m., which are required for the formation of the aforesaid by-pass road. The lands in S.Nos.106/2, 106/3, 106/4A & B and 107/5 measuring 3640 Sq.m. of Sirukadambur Village, Gingee Taluk owned by the petitioner were also included in the notification. The substance of this notification was published in local newspapers on 3.12.2010 in https://hcservices.ecourts.gov.in/hcservices/ "Dinamani" (Tamil) and "The New Indian Express" (English) as per Section 3-A(3) of the Act. Pursuant to this newspaper publication, the petitioners sent an objection petition to the second respondent herein objecting to the laying of by-pass over the lands owned by them in Sirukadambur Village and requested the respondents to avoid proceeding further with the proposed Gingee by-pass road and to drop all further action in this matter. 5.5. The District Collector, Villupuram in his letter in Do.A./SDRO/LA/NH66/45/2010-5, dated 12.1.2011 addressed to the Secretary to Government, Highways and Minor Ports Department, Secretariat, Chennai-9 suggested a slight modification to the alignment proposed by NHAI, wherein, it was suggested that the proposed by-pass may be laid along the Chetpet road prior to Sankarabarani River bridge and requested the Secretary to address the NHAI to consider the feasibility of the suggestion. The deviation recommended by the District Collector was inspected by the Chief General Manager, NHAI, Chennai and the detailed Project Report Consultant who had designed the by-pass. The D.P.R. Consultant had reported that this alignment cannot fulfill the engineering requirements of NHAI standards and as such it is not feasible to change the alignment as recommended by the District Collector. Based on the observation, the Project Director, NHAI, Villupuram in his letter NHAI/PD/VPM/Tdm-'K'giri/LA/2011/636, dated 24.5.2011 addressed to the District Collector, informing him that the change in alignment is not feasible. The Project Director, NHAI has also stated that the Chetpet road (Option IV in the affidavit) is running along the river bank and also suggested that the said alignment on the existing road is forming an acute-bend which is not feasible, since it does not provide proper curve as per design standards of NHAI. It is also not possible to construct a bridge across the river, since it is followed by an acute bend. Hence it was considered that the change in alignment to the by-pass is not feasible. The incidental to the publication of notification in Dailies, 31 land owners and interested persons filed their objection before the Special District Revenue Officer, Competent Authority (Land Acquisition), the second respondent herein. The second respondent had forwarded copies of all the 31 objection petitions received from the land owners to the Project Director, NHAI, the first respondent herein, through his letter No.A/SDRO/LA/NH/958/2010-12, dated 4.3.2011 and sought for technical