IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10/11/2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NOS.5499, 8159 AND 12952 OF 2011 AND CONNECTED MISCELLANEOUS PETITIONS B.Ramamoorthy ... Petitioner in W.P.Nos.5499 & 12952 of 2011 B.Mohammed Ali ... Petitioner in W.P.No.8159 of 2011 Vs. 1. The Project Director National Highways Authority of India Ministry of Road Transport and Highways No.10, Govindasamy Nagar, Vazhudha Reddy Post, Villupuram. 2. The Competent Authority Special District Revenue Officer (Land Acquisition) National Highways, Villupuram. 3. The District Collector Villupuram. ... Respondents 1 to 3 in W.P.Nos.5499 & 12952 of 2011 4. The Competent Authority (LA) & the Special District Revenue Officer Office of the District Collector National Highways, Villupuram. 5. The National Highways Authority of India Rep. By its Project Director No.10, Govindasamy Nagar, Vazhudha Reddy Post, Villupuram. ... Respondents 1 and 2 in W.P.No.8159 of 2011 PRAYER IN W.P.NO.5499 / 2011: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, https://hcservices.ecourts.gov.in/hcservices/ to call for the records relating to the order dated 12.02.2011 in Na.Ka.A/TNA/LA/NH/133-2010-2 of the 2nd respondent and quash the same. PRAYER IN W.P.NO.8159 / 2011: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records pertaining the impugned notification dated 08.10.2010 published in the Tamil Daily "Dinamani" by the 1st respondent under Section 3A(1) of the National Highways Act acquiring the schedule mentioned property of the petitioner herein and quash the same. PRAYER IN W.P.NO.12952 / 2011: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records of the 2nd respondent, viz., the notification in Na.Ka.NH/66/133/2010 dated 09.05.2011 published in Daily Thanthi, Cuddalore issue dated 11.05.2011 and quash the same. For Petitioner in W.P.Nos.5499 & 12952 / 2011 .. Mr.A.R.L.Sundaresan Senior Counsel for M/s.AL.Ganthimathi For Petitioner in W.P.No.8159 of 2011 .. Mr.T.Surendran For Respondent - 1 in W.P.Nos.5499 & 12952 / 2011 For Respondent – 2 in W.P.No.8159 of 2011 .. Mr.P.Wilson Senior Counsel for M/s.P.Wilson Associates For Respondents 2 & 3 in W.P.Nos.5499 and 12952 of 2011 and for Respondent – 1 in W.P.No.8159 of 2011 .. Mr.S.Gunasekaran Government Advocate COMMON ORDER W.P.NOS.5499 AND 12952 OF 2011 The petitioner is running a Rice Mill for about 15 years in S.No.142/5 in Pattanam Village, Dindivanam Taluk, Villupuram District. When surveys were made during February 2010 by the National Highways Authority of India (NHAI) for the purpose of acquiring lands https://hcservices.ecourts.gov.in/hcservices/ for the Bypass at Dindivanam Town in NH-66, Dindivanam – Krishnagiri Section, the petitioner made a representation dated 05.03.2010 to the competent authority requesting them not to acquire his lands, wherein he runs the modern rice mill. It is alleged that he invested huge amount in installing machineries for the purpose of running the Rice Mill and many families are depending on the Rice Mill. It is also alleged that instead of acquiring the lands belonging to the former M.P by name Mr.D.Heerachand, his lands were to be acquired. 2.While so, a notification under Section 3A(1) of the National Highways Act, 1956 (shortly "the Act") was published in the Gazette of India Extraordinary No.730 dated 20.04.2010 declaring the intention of the Central Government to acquire the lands in Salavadi and Pattanam Villages in Dindivanam Taluk, Villupuram District for the purpose of laying of Bypass road at Dindivanam Town in NH-66 Dindivanam – Krishnagiri Section. The land of the petitioner was one among the items of the proposed acquisition. 3.Thereafter, the substance of the said notification was published in a Tamil Daily viz., Dinamani and in a English Daily viz., The New Indian Express on 22.05.2010. In the said publication, it was stated that the persons who are interested in the lands proposed to be acquired might submit objections if any to the competent authority within 21 days from the date of publication of the said notification under Section 3C(1) of the Act. It was also stated that the objectors would be given an opportunity of being heard either in person or by a legal practitioner and that after hearing of such objections, the competent authority would either allow or disallow the objections. 4.The petitioner made a representation dated 07.06.2010 to the competent authority pursuant to the aforesaid publication dated 22.05.2010. In the meantime, the petitioner sent a representation dated 08.05.2010 to the Honourable Prime Minister of India raising his objections for acquisition of his lands. All the representations dated 05.03.2010, 08.05.2010 and 07.06.2010 are on the same lines. 5.The objections raised by the petitioner were considered and rejected by the competent authority in his proceedings dated 12.02.2011 which was passed under Section 3C(2) of the Act. 6.The petitioner filed the writ petition in W.P.No.5499 of 2011 questioning the order dated 12.02.2011 of the competent authority rejecting the objections raised by him. 7.When the matter was listed on 18.03.2011, this Court granted an order of dispossession alone and further proceedings were https://hcservices.ecourts.gov.in/hcservices/ not stayed. However, the interim order of dispossession was not extended subsequently. The respondents filed counter affidavits refuting the allegations made by the petitioner. 8.In these circumstances, the Government of India approved the declaration under Section 3D(1) of the Act in their notification S.O.730(E) dated 08.04.2011 and published in the Gazette of India Extraordinary No.615 dated 08.04.2011 for the acquisition of the lands specified in the schedule thereon for the purpose as notified under Section 3A of the Act. In the said notification, a declaration under Section 3(D)(2) of the Act was also made vesting the lands specified in the schedule with the Central Government. The substance of the aforesaid declaration was published in a English Daily viz., "The New Indian Express" and in a Tamil Daily viz., "Daily Thanthi" on 11.05.2011. In the said publication, the owners of the lands and other interested persons of the lands specified in the schedule were directed to appear in person or by agent or by legal practitioner before the competent authority at the venue mentioned in the publication on the date and time specified in the publication with their claims. 9.The petitioner filed another writ petition in W.P.No.12952 of 2011 seeking to quash the notification dated 09.05.2011 published in Daily Thanthi, Cuddalore issue dated 11.05.2011 of the competent authority. 10.The crux of the allegation made in the affidavit filed in support of the writ petition in W.P.No.12952 of 2011 is that the proposed Bypass for Dindivanam Town in NH-66 should be made by using the existing State Highway and that would be more beneficial to the public at large and that the approved alignment by the competent authority would cause serious prejudice to the public. It was stated that the third respondent District Collector also suggested new alignment at the existing State Highway, but the same was rejected arbitrarily by the competent authority. It was averred that while the length of the Bypass proposed by the competent authority is 4.7 kms, the suggested new alternate alignment requires only acquisition of lands for 3.1 kms. 11.Taking note of the fact that the interim order of dispossession granted earlier was not subsequently extended, this Court granted interim stay on 01.06.2011 only in respect of enquiry relating to compensation and not in respect of other aspects. 12.The averments made in the counter affidavit are as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) A notification under Section 3A(1) of the Act was issued declaring the intention of the Central Government to acquire lands at Salavadi and Pattanam Villages in Dindivanam Taluk, Villupuram District for the purpose of laying of Bypass road at Dindivanam Town in NH-66 Dindivanam – Krishnagiri Section and the same was published in the Gazette of India on 20.04.2010. The substance of the notification was published in a Tamil Daily viz., Dinamani and in a English Daily viz., The New Indian Express on 22.05.2010 calling for objections from the land owners and the persons having interest in the lands proposed to be acquired. (b) The objections of the land owners were forwarded to the DPR Consultant and the remarks of the DPR Consultant was obtained. The DPR Consultant pointed out various demerits in the new alignment suggested by the District Collector in his report dated 03.05.2010 the third respondent herein and the objectors. (c) It was also averred that the DPR Consultant was of the opinion that the Bypass alignment already chosen by them is better than the alternate alignment suggested by the third respondent District Collector and the objectors. (d) It was further averred that the Chief General Manager, NHAI, New Delhi and the Chief General Manager, NHAI, Chennai Region inspected both the alignments and observed that the proposal given by the DPR Consultant is more meritorious than the other alignment. (e) It was averred that 22 objection petitions including the petitioner were received from Pattanam village. Those objection petitions were rejected by the second respondent by the order dated 12.02.2011, after giving due opportunity to the objectors and also taking into account the remarks of the DPR Consultant. (f) Thereafter, a notification dated 08.04.2011 under Section 3D(1) of the Act was published in the Gazette of India Extraordinary No.615 dated 08.04.2011. The substance of the aforesaid declaration was published in a English Daily viz., The New Indian Express and in a Tamil Daily viz., Daily Thanthi on 11.05.2011. Pursuant to the declaration under Section 3D(2) of the Act, the land vested with the Central Government. (g) It is also stated that enquiry under Section 3G(3) of the Act was conducted by the competent authority at the office of the Special Tahsildar (Land Acquisition) National Highways, Dindivanam on 18.05.2011 according to the schedule. However, the petitioner did not participate in the enquiry. (h) It is stated in the counter affidavit that the notification and the publication of notification under Section 3(D) https://hcservices.ecourts.gov.in/hcservices/ of the Act is neither arbitrary nor illegal. There is no infirmity in the order dated 12.02.2011 of the competent authority rejecting the objections raised by the petitioner. Thus, the respondents sought for dismissal of the writ petitions. 13.Heard both sides. 14.The learned Senior Counsel for the petitioner submitted that the competent authority / second respondent was not correct in rejecting the alternate alignment suggested by the third respondent District Collector in his report dated 03.05.2010 and if the alternate alignment is chosen, less prejudice would be caused to the land owners and the public and the acquisition of lands would be minimal. The learned Senior Counsel placed heavy reliance on the report of the District Collector referred to above. 15.On the other hand, the learned Senior Counsel for the respondent Highways submitted that the proposed Bypass is of the length of 4.7 kms that passes through Salavadi, Pattanam, Dindivanam, Roshanai and Avarapakkam. Different notifications were issued under Section 3A of the Act for other villages namely, Dindivanam, Roshanai and Avarapakkam for acquisition of the lands required thereunder. The total land proposed to be acquired for the purpose of laying 4.7 kms length of Bypass road in five villages mentioned above is 31.97 hectares and lands were acquired from 269 persons including the petitioner. It was submitted that except the petitioner, no one else questioned the order of the competent authority and the declaration under Section 3D of the Act. The learned Senior Counsel produced a comparative statement showing how the approved alignment is more meritorious than the new alignment suggested by the petitioner and the third respondent District Collector. It was submitted that the expert opinion from DPR Consultant was obtained after objections were made by the petitioner and the report of the third respondent dated 03.05.2010. The expert body again visited the spot and conducted study and gave a report stating that the new alignment suggested by the third respondent District Collector and the petitioner, would be disadvantageous and there were more demerits. The Chief General Manager, New Delhi and the Chief General Manager, Chennai Region also inspected the spot and found that the new alignment was not feasible and it would entail much expenditure. The learned Senior Counsel relied on the following decisions in support of his submissions: a) Judgment of this Court in SHRI ANDAL ALAGAR KALYANA MANDAPAM PRIVATE LIMITED VS. UNION OF INDIA [2007 (7) MLJ 1021] https://hcservices.ecourts.gov.in/hcservices/ b) Judgment of this Court in KRISHNAVENI AND OTHERS VS. UNION OF INDIA [2007 (6) MLJ 935] c) Judgment of the Honourable Supreme Court in UNION OF INDIA VS. DR.KUSHALA SHETTY AND OTHERS in C.A.Nos.2866–2880 of 2011 (decided on 21.02.2011) 16.I have considered the submissions made on either side and perused the materials available on record. 17.Though the petitioner made certain allegations in his representations dated 05.03.2010, 08.05.2010 and 07.06.2010, the pleadings in the writ petitions are not based on those objections. On the other hand, the pleadings and the submissions of the learned Senior Counsel for the petitioner are solely based on the report dated 03.05.2010 of the third respondent District Collector suggesting a new alignment. The report of the District Collector was considered by the competent authority and the opinion of the expert body was obtained about the new alignment. The approved alignment is of 4.7 kms while the new alignment suggested is of 8 kms, of which 4.9 kms is State Highway. The State Highway has to be widened and more lands were to be acquired in that stretch also. Furthermore, the expert body found that three Railway Over Bridges have to be constructed in the new alignment, besides one medium bridge and minor bridge were to be constructed. The projected cost of the construction also would be double in the case of new alignment. The expert body namely the DPR Consultant gave his opinion about the new alignment in their letter dated 19.12.2010 to the first respondent, wherein the following demerits are noted in the new alignment suggested by the third respondent:- "Demerits 1)3 ROBs are required on this alignment A. At chainage 0/400 (this is under construction) B. At chainage 2/400 (proposed on Tindivanam – Nagari railway line) C. At chainage 6/250 (proposed on the Tindivanam – Tiruvannamalai railway line) 2)1 new medium bridge is required at chainage 6/500 3)1 minor bridge is required at chainage 5/400 4)10 houses are affected at Pattinam village, at the proposed intersection at SH-5 5)4 to 5 houses and 1 rice mill affected at the proposed end of the bypass. 6)Proposed RTL of the road should be minimum 4m high from OGL as the land is low lying wet land https://hcservices.ecourts.gov.in/hcservices/ 7)Total length is 8 kms whereas the presently proposed length is 4.7 km. 8)Even the college road land is not fully acquired by the government as per local officials. Therefore the cost of the land acquisition will go up." 18.The Chief General Manager, National Highways Authority of India, Chennai Region recorded his views on the opinion of the DPR Consultant in his letter dated 02.03.2011, wherein the aforesaid demerits were taken note of and it is stated as follows:- "In view of the above, it is not possible to modify the alignment as per the request of VIP and District Collector. It is further requested that District Collector/ Government of Tamil Nadu may be requested to process the 3D for the Salavadi and Pattanam Villages immediately as per the DPR alignment as 3A was already notified on 20.04.2010." 19.The statement of the total land proposed to be acquired for the purpose of laying 4.7 kms length of Bypass road in five villages mentioned above is extracted hereunder: Sl.No. Name of Village Length KM Total area Hectares No. of land owners 1 Salavadi 0.888. 5.79. 47 2 Tindivanam 0.511. 3.75. 30 3 Roshanai 2.033. 13.24. 99 4 Avarapakkam 1.064. 3.71. 20 5 Pattanam 0.173. 5.48. 73 Total 4.700. 31.97. 269 20.The comparative chart relating to various aspects in respect of approved alignment and the new alignment suggested by the third respondent District Collector and the petitioner is also extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "NATIONAL HIGHWAY AUTHORITY OF INDIA PIU: VILLUPURAM COMPARATIVE STATEMENT OF TINDIVANAM BYPASS IN NH 66 Sl. No. Details Approved Alignment New Alignment on Existing College Road 1 Length of Bypass The length of Bypass is 4.70 km The total length of the Bypass suggested by the District Collector, Villupuram / petitioner is 8.0 km. Out of this 8 Km, the existing College road length is 5 Km which is State Highway of Tamil Nadu Government The College Road was initially single lane road and improved to two lane which is not fully acquired by the Government as per the local officials. Additional length to be acquired for further 3 Km from the State Highway Junction of Tindivanam – Arcot road to end of Bypass. 2 Land requirement The land acquisition involved is 28.2 Ha a) Land required for this proposal is 45 Hectare b) Land available in the existing College Road is 15 Ha [5000 x 30m = 1,50,000 Sq.m] c) Additional land required to be acquired is 48-15 = 33 Ha. 3 Structures getting involved The minimum number of structures (4Nos. of houses, 1 No. of school and 1 No. of Rice Mill) involved in the Bypass The structures getting affected are houses – 15 Nos, Rice Mill – 1 No. https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Details Approved Alignment New Alignment on Existing College Road 4 ROB to be constructed The one Rail Over Bridge (ROB) is required to be provided in this alignment of Bypass at Ch.0/836Km (Tindivanam – Melmaruvathur line) In this alignment 3 Rail Over Bridge (ROB) are required to be constructed. One Rail Over Bridge (ROB) at Km.0/400 is being constructed in the existing College Road by the State Government. Rail Over Bridge (ROB) – 2 is to be constructed for the new railway line from Tindivanam to Nagari line at Km.2/400. Rail Over Bridge (ROB)-3 is to be constructed in the college road existing alignment at Ch.6/250 of Tindivanam – Tiruvannamalai Railway line. 5 Cross drainage works Only one minor bridge at Km.1/367 is required to be constructed. One medium bridge at Ch.6/500 and minor bridge at Ch.5/400 are required to be constructed in the above Bypass alignment 6 Cost of Bypass The cost of the approved Bypass is Rs.27.20 Crores The construction cost of the Bypass is Rs.51.13 Crores which is higher than Rs.27.20 Crores for the Bypass as per approved DPR 7 Formation of embankment The filling for formation of the road will be 2 to 2.5 m high from original ground level. The filling for formation of the road is 4m high from the original ground level which requires more quantities of earth work requires additional expenditure. 8 Compensatio n to be paid for LA Compensation for land acquisition for the approved alignment is considerably less than compared to college road proposal. The land involved is more than the approved alignment and the compensation for the land to be acquired is consequently more. The aforesaid comparative statement was not disputed by the learned Senior Counsel for the petitioner. 21.The details of projected cost for the new alternate alignment and the approved alignment was also furnished by the respondent NHAI and the same is extracted hereunder: "NATIONAL HIGHWAYS AUTHORITY OF INDIA PROJECT IMPLEMENTATION UNIT, VILLUPURAM 2-Laning of Tindivanam – Tiruvannamalai – Krishnagiri https://hcservices.ecourts.gov.in/hcservices/ Section of NH – 66 from Km 37/600 to Km 214/110 in the State of Tamil Nadu Comparison Statement for construction of Tindivanam Bypass as per Detailed Project Report and suggested by the District Collector, Villupuram / Petitioner Bill No. Description As per approved DPR Suggested by the District Collector, Villupuram / Petitioner A Road Part Bill No.1 Site clearance and dismantling 522300 889030 Bill No.2 Earth work 66852200 213178950 Bill No.3 Granular Base Course and Sub-Base 85827650 104560030 Bill No.4 Bituminous Courses 44066800 66058850 Bill No.7 Drainage and Protective Works 8652100 15990890 Bill No.8 Junctions, Footpath & Kerbs 613360 961200 Bill No.10 Traffic Sign Markings and other Road Appurtenances 17363460 29037350 Bill No.11 Miscellaneous 983470 1455720 Total cost for Road Part – A 22488134 0 432132020 B Structure Part 1 One ROB at Ch.0/836 in Option – I and two number of ROB at Ch.2/400 & 6/250 in Option – II 39273700 60911250 2 One Minor Bridge at Ch.1/367 in Option I and two numbers at Ch.6/500 & 5/400 in Option – II 7819600 18276262 Total cost for Structure Part-B 47093300 79187512 Total Project Cost - (A+B) in Rupees 27197464 0 511319532 Project cost in Crs. 27.20 51.13 https://hcservices.ecourts.gov.in/hcservices/ The aforesaid projected cost is also not disputed by the learned Senior Counsel for the petitioner. In these circumstances, I am of the view that the second respondent / competent authority has considered the merits and demerits of the issues and ultimately rejected the objections made by the petitioner and others. 22.Furthermore, construction process had commenced and the lands vested with the Central Government and pursuant to the notification issued under Section 3D of the Act, this Court did not grant any interim order and interim order was granted only in respect of the compensation proceedings and nobody else have also questioned the 3D notification. Hence, I do not find any merit in these writ petitions and the same are liable to be dismissed. 23.As rightly contended by the learned Senior Counsel for the respondent NHAI, this Court in its judgments in (a) SHRI ANDAL ALAGAR KALYANA MANDAPAM PRIVATE LIMITED VS. UNION OF INDIA [2007 (7) MLJ 1021] and (b) KRISHNAVENI AND OTHERS VS. UNION OF INDIA [2007 (6) MLJ 935] and the Honourable Supreme Court in UNION OF INDIA VS. DR.KUSHALA SHETTY AND OTHERS in C.A.Nos.2866–2880 of 2011 (decided on 21.02.2011) held that the findings of the expert body in technical and scientific matters would not ordinarily be interfered with by the Courts, while exercising its power under Article 226 of the Constitution of India. In this regard, the relevant paras from the aforesaid judgments are extracted hereunder: (a) SHRI ANDAL ALAGAR KALYANA MANDAPAM PRIVATE LIMITED VS. UNION OF INDIA [2007 (7) MLJ 1021] "53..... Therefore, the Courts would do well to keep their hands off, when experts form an opinion. The restraint to be exercised in such cases, is aptly stated by Justice V.R.KRISHNA IYER in Dr.Jagadish Saran and Others v.Union of India (1980) 2 SCC 768, in the following words: "Judges should not rush in where specialists fear to tread...... To doubt is not enough to demolish." (b) KRISHNAVENI AND OTHERS VS. UNION OF INDIA [2007 (6) MLJ 935] "23.The petitioners sought to challenge the veracity and correctness of the detailed finalized plan of National Highways Authority of India, in my view, the said submission is devoid of merits. The https://hcservices.ecourts.gov.in/hcservices/ findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by this Court in exercise of their power under Article 226 of the Constitution, followed Akhil Bharat Goseva Sangh v. State of Andhra Pradesh, (2006) 4 SCC 162 wherein in Para – 59, it was held thus: "59.The appellant sought to challenge the veracity and correctness of the figures given in the report of the Central Government as well as in the quinquennial census. In our view, this submission is devoid of merit. It is now well settled by various decisions of this Court that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by the courts in exercise of their power under Article 226 of the Constitution or by this Court under Article 136 or 32 of the Constitution." (c) UNION OF INDIA VS. DR.KUSHALA SHETTY AND OTHERS in C.A.Nos.2866–2880 of 2011 (decided on 21.02.2011) "24.Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development