IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 9 .11.2010 CORAM THE HONOURABLE MR. M.Y.EQBAL, CHIEF JUSTICE AND THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A. NOS. 339 TO 349 OF 2010 W.P. NO. 17991 OF 2010 AND M.P. NOS. 1 OF 2010 R.Natarajan .. Appellant in WA No.339/2010 R.Jagannathan .. Appellant in WA No.340/2010 G.Thangavel .. Appellant in WA No.341/2010 R.Venkitasamy .. Appellant in WA No.342/2010 R.Marathal .. Appellant in WA No.343/2010 N.Ramasamy Gounder .. Appellant in WA No.344/2010 R.Ramasamy .. Appellant in WA No.345/2010 R.Vanjiyappa Kumar .. Appellant in WA No.346/2010 R.Marathal .. Appellant in WA No.347/2010 M.Ramasamy .. Appellant in WA No.348/2010 M.Govindasamy .. Appellant in WA No.349/2010 – Vs - 1. The Union of India rep. By its Secretary Ministry of Shipping, Road Transport & Highways, Government of India No.10, Raisina Road, New Delhi 110 001. 2. The Competent Authority (Land Acquisition) – cum - District Revenue Officer Office of the District Collector Coimbatore. ... Respondents 1 & 2 in all Writ Appeals 3. The Project Director National Highways Authority of India No.10, Kamadhenu Nagar Karur 639 001. ...3rd Respondent in W.A.339 to 347/2010 Writ Petition No. 17911 of 2010 R.Natarajan .. Petitioners https://hcservices.ecourts.gov.in/hcservices/ vs. 1. The District Collector, Tiruppur District, Tiruppur. 2. The Competent Authority (Land Acquisition) – cum - District Revenue Officer Tiruppur Collectorate, Tiruppur. 3. The Project Director National Highways Authority of India No.10, Kamadhenu Nagar Karur 639 001. ...Respondents Writ Appeals filed against the order dated 3rd Feb., 2010 passed by learned single Judge in W.P. Nos.19946 to 19954 of 2008 and W.P.No.22050, 22051/08. W.P. Nos.19946 to 19954 of 2008 and W.P.No.22050, 22051/08: These WPs. filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records relating to the order of the 1st respondent dated 9.7.2008 in Na.Ka.No.28943/06/Vu7 published in the Daily Thanthi dated 16.7.2008 and quash the same only in so far as it relates to the petitioner W.P. No.17991 of 2010 filed for the issuance of a writ of certiorari to call for the records on the file of the 1st respondent in Na.Ka.No.15695/2010 (2)/U4 dated 15.06.2010 and quash the proceedings therein as illegal, incompetent, irregular and without jurisdiction. For Appellants : Mr. V.Ragavachari for Mr.G.Saravanan For Respondents : Mr. J.Ravindran, Asst. Solicitor General for R-1 Mr. J.Raja Kalifulla, Govt. Pleader for R-2 Mr. P.Wilson, Addl. SC for M/s.P.Wilson Associates for R-3 COMMON JUDGMENT THE HON’BLE CHIEF JUSTICE AND T.S.SIVAGNANAM, J. Since these appeals arise out of common judgment and order passed in batch of writ petitions, the same were heard together and are disposed of by this common judgment. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioners are the appellants. They filed writ petitions seeking issuance of writ of certiorari for quashing the order dated 9the July, 2008 , in Na.Ka. No.28943/06/Vu7 published in the “Daily Tanthi” dated 16th July, 2008, so far as it relates to the petitioners/appellants. 3. The facts of the case lie in a narrow compass. 4. The petitioners/appellants are the owners of the land in Alagumalai Revenue Village, Tirupur Taluk, Coimbatore District. There is a National Highway going from Karur to Coimbatore and the highway is abutting their lands. It is said that the officials of the National Highways Department inspected the lands of the appellants and took measurement. On enquiry, the appellants came to know that the respondents are going to lay bye-pass road connecting NH 67 from Avinashipalayam Sungam to Ramaswamy Koil Pirivu instead of widening the existing NH-67. The appellants case is that, they came to know about the notification dated 21st Nov., 2007 in the newspapers. Immediately, the appellants submitted detailed objections to the respondents on 8th Dec., 2007. The 1st respondent did not pass orders u/s 3-C (2) of the National Highways Act, 1956. The appellants case was that the impugned order came to be passed without passing order u/s 3-C (2) of the said Act, which is violative of principles of natural justice. 5. The authority of the respondents, National Highways, in their counter affidavit, have stated that the gazette notification dated 26th Oct., 2007, for acquisition of land of the appellants was notified and the same was published in two daily newspapers. A public notice was also issued calling for objections from interested persons. Necessary enquiry was made u/s 3-C (2) of the Act on 8th Jan., 2008, and after perusing the representation, the 2nd respondent came to the conclusion that the acquisition of land is inevitable for widening the road and, accordingly, the objections/claim of the appellants was disallowed on 29th Jan., 2008. The further case of the respondents is that after the aforesaid order u/s 3-C (2) of the Act was passed, necessary notification u/s 3-D (1) of the Act was notified in the gazette on 23rd May, 2008 and the substance of the gazette notification was published in the newspapers as required u/s 3-G (3) of the Act. 6. The main contention of the petitioners/appellants in the writ petition was that they were not aware about the order made u/s 3-C of the Act. It was contended that the order u/s 3-C was passed behind the back of the appellants and they were not given opportunity of hearing. Even the copy of this order was not served or communicated to the appellants. 7. Learned single Judge is of the view that since the order made u/s 3-C of the Act was not challenged by the appellants and the only challenge was about the notification dated 9th July, 2008, the question of accepting the submission of the appellants with regard to the validity of the order made u/s 3-C cannot be gone into. Learned https://hcservices.ecourts.gov.in/hcservices/ single Judge is also of the view that once the lands vested with the Government as required under Section 3-D of the Act, the petitioners/appellants remedy lie only in claiming compensation as provided u/s 3-G of the Act. Accordingly, all the writ petitions have been dismissed. However, while dismissing the writ petition, learned Judge, in the last paragraph of the order observed as under :- “10. At this juncture, learned counsel appearing for the petitioners states that if there is any possibility to give up the lands of the petitioners, the respondents could be directed to consider the same. It is always open to the petitioners to approach the respondents with such request and as and when such request is made by the petitioners, it is open to the respondents to decide the same on merits and in accordance with law.” 8. Mr. V.Raghavachari, learned counsel appearing for the appellants assailed the impugned judgment and order passed by learned single Judge as being contrary to law, and facts and evidence on record. Learned counsel submitted that learned single Judge gravely erred in law in dismissing the writ petitions on the ground that the appellants had not challenged the order of the 2nd respondent made u/s 3-C of the Act without considering the appellants specific case that no order u/s 3-C of the Act was ever served or communicated to the petitioners/appellants. Learned counsel further submitted that in absence of any proof or evidence to establish that the order of the 2nd respondent u/s 3-C of the Act was served on the appellants, the finding of the learned Judge that the appellants could not challenge the order u/s 3-D of the Act is totally erroneous and against the provisions of the Act. Learned counsel vehemently assailed the order dated 29th Jan., 2008 on the ground that it is violative of principles of natural justice and further on the ground that there is total non- application of mind on the part of the respondents while passing the said order and also the same has been passed without giving any reasons. According to the learned counsel, in view of the fact that the aforesaid order passed u/s 3-C is absolutely erroneous and violative of principles of natural justice, the subsequent orders and notifications issued u/s 3-D cannot be sustained in law. 9. On the other hand, Mr.P.Wilson, learned Addl. Advocate General, appearing for the respondents strenuously contended that the appellants participated in the enquiry on 8th Jan., 2008 and, therefore, they cannot be allowed to say that they are not aware of the order made u/s 3-C of the Act. According to the learned counsel, after the notification was issued u/s 3-D (1) of the Act and once the lands stood vested with the Government, the only remedy available to the appellants is to claim compensation as required u/s 3-G of the Act. 10. Before considering the merit in the submission made by the learned counsel appearing for the respective parties, we would first like to go through the relevant provisions of the National Highways https://hcservices.ecourts.gov.in/hcservices/ Act, 1956. The Act was enacted to provide for the declaration of certain Highways to be National Highways and for matters connected therewith. Section 3 was substituted by the National Highways Law (Amendment), 1997 (Central Act 16 of 1997). Section 3 defines the word “competent authority” and the word “land”. Section 3-A empowers the Central Government to declare its intention to acquire such lands if it is satisfied that the said land is required for the purpose of operation of National Highway or for the building, maintenance and management of the National Highways. Such notification shall give brief description of the lands and the notification shall be published in two local newspapers one of which will be in a vernacular language. After the said declaration made by notification, the authorities of the Central Government have been empowered u/s 3-B of the Act to make inspection, survey, measurement, valuation or enquiry, to set out boundaries, mark such levels, dig or bore into sub-soil or do such other acts or things as laid down by rules made in this behalf by the Government. 11. Section 3-C is the important and relevant section for the purpose of the instant case. Sub-section (1) to Section 3-C gives right to a person interested in the land to file objections within twenty-one days and object to the use of the land for the purposes mentioned u/s 3-A of the Act. Sub-section (2) provides that such objection shall be made to the competent authority in writing and shall set out the grounds thereon and the competent authority shall allow or disallow the said objections. Sub-section (3) of Section 3- C provides that orders made by the competent authority under sub- section (2) shall be final. For better appreciation, Section 3-C of the Act is reproduced hereinbelow :- “3-C. Hearing of objections.- (l) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section. (2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation.- For the purposes of this sub- section, "legal practitioner" has the same meaning as in clause (i) ot sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961). https://hcservices.ecourts.gov.in/hcservices/ (3) Any order made by the competent authority under sub-section (2) shall be final.” 12. It further reveals that after the objection is finally disposed of in the manner required under sub-section (2) of Section 3-C of the Act, the authority shall proceed u/s 3-D, which provides, inter alia, that after the objection having been disallowed, the competent authority shall submit a report to the Central Government and the Central Government, on receipt of the report so declare by notification in the official gazette that the land has been acquired for the purpose mentioned under sub-section (1) of Section 3-A. Section 3-D reads as under :- “3-D. Declaration of acquisition.- (1) Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub- section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A. (2) On the publication of the declaration under sub- section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under sub section (1) of section 3A for its acquisition but no declaration under sub- section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect: Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded. (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.” 13. After the aforesaid requirement of law, as contemplated under Section 3D, is complied with by the competent authority of the Central Government, the competent authority shall direct the land owner or the person in possession to surrender or deliver possession https://hcservices.ecourts.gov.in/hcservices/ of the land u/s 3-A of the Act. If any person refuses or fails to comply with the direction, then the Commissioner or the Collector shall enforce the surrender of the land to the competent authority or the person duly authorised by it. Section 3-F of the Act further provides that after the land stood vested with the Central Government u/s 3-D, it shall be lawful for any person authorised by the Central Government to enter and do other acts necessary upon the land related to or in connection with the National Highway. Section 3-G prescribes the mode of determination of amount of compensation payable to the land owners. 14. In the light of the aforesaid provisions of the Act, the only question that falls for consideration is whether the authorities of the respondents have complied with the mandatory requirements of law quoted hereinabove before acquiring the appellants' lands for the purpose of National Highway or for the purposes connected therewith. 15. As noticed above, after the Central Government declared its intention by issuing a notification in the Official Gazette to acquire the lands for the building, maintenance, management or operation of the National Highway, the land owners or person interested have the right to file their objections within twenty one days from the date of publication of the notification, and can object to the use of the land for the purpose or purposes mentioned in sub- Section (1) of Section 3-A of the Act. Sub-section (2) of Section 3C of the Act very specifically provides that the Competent Authority before whom such objection is made, shall give the objector an opportunity of being heard either in person or by a legal practitioner, and may, after hearing such objections, and after making further enquiry, if necessary, either allow or disallow the objections. At this juncture, again we take the opportunity to reproduce Sub-section (2) of Section 3C of the Act. “ Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry,if any, as the competent authority thinks necessary,by order, either allow or disallow the objections.” Prima facie, therefore, it is manifestly clear that the compliance of the aforesaid provision is not a mere formality. Sub- section (2) cast a duty upon the competent authority to consider the objections, and after hearing such objections, and after making such further enquiry, if any, shall allow or disallow the objections. 16. The respondents in their counter affidavit filed in the writ petitions, has stated that the appellants have raised their https://hcservices.ecourts.gov.in/hcservices/ objections in the petition dated 23.08.2007 and 18.12.2007. It is further stated that under Section 3-C(2) of the Act necessary enquiries have been conducted by the competent authority (LA) and the District Revenue Officer, Coimbatore on 08.01.2008 and after perusing the documents and examining the case, the competent authority and the District Revenue Officer, Coimbatore came to the conclusion that the acquisition of lands are inevitable for the widening of the National Highways project and has disallowed the petition. From the objections raised by the appellants, the copies of which are available on record, it is evidently clear that several objections had been raised by the appellants including that the notification issued for acquiring the lands for the expansion of the National Highways on the lands in question are proposed to be used to lay new roads instead of expansion project of the National Highways. Due to this many farmers like the appellants, who hold small piece of agricultural lands, would be led to irreparable loss. For better appreciation, the grounds taken by the appellants in the objection petition are reproduced herein below: - “4. At present, the national highways is running near the survey numbers 316 and 317. If the available national highways is developed and regulated, the national highways would be constructed in a proper manner. I being the farmer and the other farmers would not be affected. 5. I am ready to offer the lands which would be required to develop and expand the national highways which is running near my lands at present, without raising any objection, whatsoever. In the same fashion, the other farmers near my lands are read to offer the lands for the expansion of the roads. 6. It could not be accepted that as lot of accidents are caused in Avinasipalaym junction of this highways, the new national highways is being constructed. Because, in the junction which separates from Avinasipalayam-Customs Division and Tarapuram Road to Road leading to Coimbatore, which comes under the jurisdiction of Avinasipalayam Police Station, in the year 2006, only three accident cases have been registered (Crime Nos.11/2006, 143/2006 and 193/2006). Further in the year 2007, only 2 cases have been registered (Crime Numbers 57/2007, 168/2007). All not been caused due to the above mentioned curves. The accidents had occurred due to the dashing of vehicles directly with each other. It could not be said that if the National Highways are made straight, the accidents would not occur. If in the two junctions near the Avinasipalayam junction, are provided with roundtana and the bulbs are installed, it would reduce the causes for accident. https://hcservices.ecourts.gov.in/hcservices/ 7. If we go from the Avinasipalayam junction of the present National Highways, it will lead to loss of time also could not be accepted. The distance in the present national highway from the Avinasipalayam junction, the new highways which is going to connect the old road, is about 1450 metres. The distance or which the new road had been planned is 1300 metres. In order to reduce 150 metres highways, the proposal to destroy the agricultural lands, and to construct the new road and to spend several crores for such road construction could not be accepted.” 17. The appellants in support of the grounds taken in the petition submitted the map and other documents. However, the said objection was disallowed by the authority vide order dated 29.01.2008. It would be relevant and important to quote the order dated 29.01.2008 whereby the objections of the appellants were rejected under Section 3-C(2) of the Act. “ PROCEEDINGS OF THE COMPETENT AUTHORITY (NH 67) AND COIMBATORE DISTRICT REVENUE OFFICER Present : Dr.S.Prabhakaran, M.B.S.C., M.B.A., Na.Ka.58775/2007/VU 7(1) 29.1.2008 Sub: Land Acquisition – National Highways 67 (Karur to Kovai) – Kovai District – Tirupur Taluk – Alakumalai Village – Survey No.316 - Section 3A(1) – The objection received – Enquiry completed and order passed. Ref: 1. The objection of Marathal dated 23.8.2007 & 18.12.2007 2. The proceedings of the competent authority dated 28.12.2007 Na.Ka.58775/07/Vu 7 (1). The letter of the Project Director, NationalHighways, Trichy dated 7.1.2008. O R D E R Pursuant to the objection submitted against the land acquisition in Survey No.316, Alagumalai Village , Tirupur Taluk, Coimbatore District for the purpose of 4 lane N.H.67 from Karur to Coimbatore, notice of enquiry was issued for the enquiry on 8.1.2008 by the Competent Authority. The land owners/objectors appeared in person and gave statement. 2. The objection of the petitioner was perused. The Project Director of NHAI has informed that with the help of technical experts/consultant NHAI has already prepared detailed project report, land acquisition work was started and the project work is under progress. Therefore, the acquisition of the lands could not be dropped/alignment could not be changed. Since the land is acquired https://hcservices.ecourts.gov.in/hcservices/ for public interest and compensation is paid under Section 3(G), the objection of the petitioner is rejected under Section 3-C (2) of the National Higways Act, 1956. Sd. Competent Authority(NH 67) and District Revenue Officer, Coimbatore. To Tmt.Marathal, W/o Ramasamy Gounder, Sundakadu 18. A perusal of the order shows that the Competent Authority disallowed the objection not on the ground that there was no substance in the objection, rather on the ground that the technical expert/consultant (NHAI) has already prepared detailed project report, land acquisition work was started and the project work is under progress. The objection was also disallowed on the ground that since the land is acquired for public interest, and compensation is paid under Section 3-G of the Act, the objection so raised is bound to be rejected. We are really shocked and surprised to see the order and the manner of exercising power under Section 3(2) of the Act. The order clearly shows that the authority passed the order purely on the basis that the technical experts have already given their opinion. Nothing is reflected from the order that the objection raised by the appellants were even considered or dealt with by the authority. Moreover no reasons have been assigned while rejecting the objection. In our opinion, there is total non-application of mind on the part of the authority while passing the order rejecting the objection under Section 3(2) of the Act. 19. It is true that a limited right has been given to the land owner or person interested under Section 3(2) of the Act to file objection to the acquisition proceedings. But such a right given to the person is not an empty formality, rather it is a substantive right. It has been consistently held by the Supreme Court that the person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities that the acquisition of property can be avoided. In Munshi Singh v. Union of India reported in 1973 (2) SCC 337, their Lordships taking notice of the object and importance of Section 5-A of the Act observed as under: - “7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. ... The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is https://hcservices.ecourts.gov.in/hcservices/ only in cases of urgency that