IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2011 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.Nos.2828 and 2829 of 2009 M.P.Nos.1,1,2 and 2 of 2009 Etti Gounder ... Petitioner in W.P.No.2828/2009 S.G.Natesan ... Petitioner in W.P.No.2829/2009 Vs. 1.The Union of India, Rep. by its Secretary to Government, Ministry of Shipping, Road Transport and Highways Department, New Delhi. 2.The National Highways Authority of India, Rep. by its Project Director, 4 Laning NH7, Karur, Salem District. 3.The District Collector, Namakkal District, Namakkal. 4.The District Revenue Officer/ Competent Authority/ Land Acquisition Officer, 4 Laning NH7, Tumankruchi, Namakkal Taluk and District. ... Respondents in both petitions PRAYER IN BOTH PETITIONS: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records comprised in notification No.864 S.O.1444(E) dated 13.06.2008 under Section 3-A(1) of the National Highways Act, 1956, and the consequential notification in S.O.No.2149(E) Part-II, dated 17.12.2008, under Section 3-D(1) of the National Highways Act, 1956, on the file of the 4th respondent and quash the same in respect of the https://hcservices.ecourts.gov.in/hcservices/ lands belonging to the petitioners as unconstitutional, arbitrary and illegal. For Petitioner in both petitions :Mr.AR.L.Sundaresan, SC for Mr.R.Karthikeyan For Respondents in both petitions :Mr.P.Wilson, SC for M/s.P.Wilson & Associates for R2 Mr.J.Ravindran, for R1 Mrs.Lita Srinivasan, GA for R3 & R4 COMMON ORDER As the facts leading to both writ petitions are identical, they are disposed of by this common order. 2. For better appreciation, the facts involved in one of the writ petitions i.e., W.P.No.2828 of 2009, are briefly stated hereunder:- The petitioner owned 1.75 acres of land in Survey Nos.3/6 and 3/10 of Pappinaickenpatti Village, Namakkal Taluk and District and hte same were acquired by the respondents under the National Highways Act for the purpose of laying 4 laning National Highways No.7 running between Salem and Karur and thereafter, the Competent Authority had determined the compensation under Section 3-G of the Act. After receiving the same under protest, the petitioner has also approached the Competent Authority to refer the same to an Arbitrator as provided under the Act. When the matter stands thus, the petitioner was once again shocked to see the Gazette Notification No.864 S.O.1444(E), dated 13.06.2008, issued under Section 3-A(1) of the Act and thereafter, invited objections under Section 3-A(3) of the Act, by newspaper advertisement through Dinathanti dated 02.07.2008 calling for objections from the petitioner for acquiring the lands belonging to the petitioner situate in Survey Nos.3/6 and 3/10. Since the said notice dated 02.07.2008 indicated that the said lands were going to be acquired for building, maintenance, management or operation of National Highway, on enquiry in the office of the 4th respondent, it was found that the lands of the petitioner were acquired originally for the purpose of forming 4 laning NH No.7 and at present, the remaining lands are also going to be acquired by the respondents for the purpose of setting up a truck lay-by to enable the drivers to park their vehicles on the truck lay-bye for different purpose, like repairing the vehicles, taking rest for some time, etc. 3. Mr.A.R.L.Sundaresan, learned Senior counsel appearing for the petitioner contended that when there is already a truck lay-by within 2.5 kms away from the petitioner's land, there is no requirement to acquire more lands for the very same purpose, because there was already a notification for acquiring lands in Survey Nos.132/2B, 132/2D, https://hcservices.ecourts.gov.in/hcservices/ 132/2D2, 132/3, 135/1A, 135/1D, 135/1E, 135/1F and 135/1G of Pappinaickenpatti Village, for which the owners of the land had made objection to the 4th respondent and in turn, the 4th respondent, by order dated 27.10.2006, rejected their objection. Subsequently, the said land owners filed writ petitions in W.P.Nos.13700, 13835 and 14635 of 2007 challenging the notification issued under Section 3-A of the Act before passing notification under Section 3-D of the Act. The respondents, without filing their counter and defending the acquisition proceedings in the above mentioned writ petitions, have wrongly issued the present notification to acquire the lands of the petitioner for the very same purpose, for which acquisition proceedings are already pending. Therefore, he contended that the action of the respondents is not only arbitrary, but also unjustifiable. 4. In his further submission, it was contended that the purpose for which the respondents proposed to acquire the lands of the petitioner does not fall within the ambit of Section 3-A of the National Highways Act, 1956, since the notification issued under Section 3A is not only vague, but also fails to specify the purpose for which the lands are sought to be acquired. Adding further, he elaborated his argument that the petitioner after coming to know about the acquisition proceedings, he has submitted his objection under Section 3C(1) of the Act and thereafter, the 4th respondent is required to hold an enquiry for the purpose of giving the owners an opportunity of making their objections, it is only thereafter the respondents could declare the acquisition under Section 3D. But, interestingly, the 4th respondent, after receiving objection, wrongly rejected without holding enquiry nor assigning any reason. Finally, he pleaded that when the Act does not provide for acquisition of lands for the purpose of leasing out the same to private owners for putting up shops, etc., the same will not come within the meaning of public purpose, therefore, the reasons mentioned in the impugned notification cannot be termed as requirement for building, maintenance, management or operation of the national highways or part thereof as mentioned under Section 3A of the Act and on that basis, he contended that the acquisition proceedings is wholly uncalled for. With the aforesaid submissions, he prayed for quashing the impugned proceedings in respect of the petitioner's land as constitutional arbitrary and illegal. 5. Per contra, Mr.P.Wilson, learned Senior counsel appearing for the 2nd respondent submitted that the respondents proposed to acquire an extent of 15923 sq.mtrs of land in S.Nos.3/5B, 3/6, 3/7a, 3/8, 3/9 and 3/10 of Pappinaickanpatti Village for the formation of truck parking area to the transport vehicles in NH7 on the stretch of land from KM 217-600 to 278-600 running Salem to Karur Section in Namakkal District. Since the road widening is only for the welfare of the public, a https://hcservices.ecourts.gov.in/hcservices/ detailed traffic survey was conducted before the acquisition of land during the preparation of detailed project report. After the initiation of the land acquisition proceedings, one Mr.Rajagopal, President, Government Employees Housing Society, Namakkal, and others have filed writ petitions before this Court in W.P.Nos.13700, 13835 and 14635 of 2007 challenging the acquisition proceedings in their patta lands. This Court, by order dated 21.04.2007, issued status-quo order in their writ petitions. That apart, many representations and objections were also received from the public and nereby plot owners to the District Administration to shift the truck lay-by location to elsewhere. In view of the receipt of the many representations and objections to shift the truck lay-by location, the District Collector, Namakkal, has suggested to change to the present truck parking area under acquisition to some other place. Moreover, the Secretary to Government, who is also Nodal Officer for NHAI project, during the review meeting held on 17.05.2007 at Chennai, has also supported the view of the District Collector, Namakkal, to go for alternative site for laying truck lay-by leaving the petitioner's land in W.P.No.13700/07, ect., from acquisition. Therefore, the respondents decided to shift the truck parking location from S.Nos.130, 131, 132/2C, etc., to S.Nos.3/5B, 3/6, 3/7A, 3/8, 3/9 and 3/10 of Pappinaickanpatti Village. On that basis, the acquisition proceedings initiated in S.Nos.130, 131, 132/2C, etc., of Pappinaickanpatti Village were decided to be withdrawn from acquisition. This was also properly conveyed in the common counter filed by the respondents in W.P.No.13700, 13835 and 14635 of 2007. Therefore, it is not correct to say that the respondents have once again acquired the petitioner's land after keeping the earlier proposal in cold storage. 6. Further, it was submitted that after the publication of the notification in the local dailies viz., The New Indian Express and Thinthanthi, on 05.09.2009, the enquiry contemplated under Section 3G(3) of NH Act was conducted on 13.02.2009 by the Competent Authority. Though the petitioner was given opportunity to putforth his objection at the time of 3G(3) enquiry, he failed to attend the enquiry, therefore, it is not open to the petitioner to say that he was not given any opportunity. After elaborating his submission, it was further contended that the truck parking is part and parcel of the NH section, which needed acquisition of lands under the NH Act. Therefore, when the notification under Section 3D(1) of the NH Act was published in the Gazette of India on 17.12.2008, after the publication of the declaration under Section 3D(1) of NH Act, the land shall vest absolutely with the Central Government free from all encumbrances. 7. Further, it was submitted that though the petitioner failed to appear for enquiry, he has given his objection and the same was also considered and finally, the Competent Authority has dismissed his objection, as his objection was unsustainable and meritless. Therefore, https://hcservices.ecourts.gov.in/hcservices/ the allegation that the petitioner was not given any opportunity is baseless and finally, the respondents have deposited the compensation amount in the Namakkal District Court on 01.09.2009. Thereafter, since the land owners refused to receive the compensation amount, the respondents issued a statutory notice under Section 3-E(1) of the National Highways Act and served it on the petitioner on 13.10.2009 and only after the expiry of the mandatory 60 days period as on 13.12.2009, the 4th respondent has taken possession of the property and handed over it to the 2nd respondent on 31.05.2010. After taking possession of the acquired property, the 2nd respondent has completed construction of truck lay-by road by black tapping the same on 25.03.2011 and thereafter, the vehicle parking at the truck lay-by road commenced on 05.04.2011. In support his submission, he has also produced photographs to show that they have completed the truck lay-by road by black tapping. With all the above submissions, he prayed for dismissal of the present writ petitions. 8. The 4th respondent has also filed a detailed counter taking almost a similar stand as that of the 2nd respondent. 9. Heard the learned counsel appearing on either side and perused the materials available on record. 10. The respondents proposed to acquire an extent of 15923 sq.mtrs. of land in S.No.3/5B etc. in Pappinaickanpatti Village of Namakkal Taluk for the formation of truck parking/rest area to the transport vehicles in National Highways (NH-7) of Salem-Karur section in Namakkal District. The truck parking was considered as a necessary resting place for long driving drivers, cleaners and other tranvellers and this is in fact increases the quality of driving for the drivers, who undertake long journeys. Therefore, this would reduce drastically frequent accidents in our various highways route. Further, in case of any repairs suffered by any laden vehicles and the vehicles getting stranded in the middle of the road can also be towed to the parking area and the same vehicles can be repaired without causing any vehicular problem to others. Therefore, after thorough study, in addition to the formation of 4 laning, the respondents thought fit to form truck parking on the side of road. With this idea, when they proposed to acquire the requisite land, a notification under Section 3A(1) of the NH Act was published in the Gazette of India No.804 (S.O.No.1444(e)), Part II, Section 3 Sub-section ii, dated 13.06.2008. The substance of the notification was also published in two local dailies viz., The New Indian Express and Thinathanthi on 12.07.2008 inviting objections if any from the pattadars/interested persons, within 21 days from the date of publication of the notification in the local dailies. The petitioner has also sent his objection petition to the Competent Authority and the District Revenue Officer, Namakkal, for the proposed acquisition. After https://hcservices.ecourts.gov.in/hcservices/ due service of notice, an enquiry was held on 12.10.2008. After careful consideration of his application, the same was rejected in proceedings dated 13.10.2008. Thereafter, a notification under Section 3D(1) of the NH Act was published in the Gazette of India No.1761 (S.O.No.2914E) Part-II, Section 3, Sub-section ii, dated 17.12.2008. The substance of the notification was also published in two local dailies viz., The New Indian Express and Thinathanthi on 05.02.2009. Thereafter, an enquiry, as contemplated under Section 3G(3) of the Act, was conducted on 13.02.2009 at Collector's Office, Namakkal. At this stage, the petitioner has filed this writ petition. 11. At the first instance, the respondents proposed to acquire an extent of 17510 sq.mtrs. of land in S.No.130/3D, 130/4, 131, 132/2C, 130/3F, 130/3G, 132/2A, 132/2B, 132/2D2 of Pappinaickanpatti Village for the formation of truck parking / rest area to the transport vehicles in the first and second phase and accordingly, the respondents initiated the land acquisition proceeding. Opposing the land acquisition proceedings, one Mr.Rajagopal, President, Government Employee's Housing Society, Namakkal and others have filed writ petitions before this Court in W.P.Nos.13700, 13835 and 14635 of 2007 challenging the said acquisition proceedings. This Court, by order dated 21.04.2007, issued an order of status-quo and subsequently, on 06.08.2007, by entertaining another interim application, issued interim orders. Whileso, many representations and objections were also received from the public and nereby plot owners to the District Administration to shift the truck lay-by location to elsewhere. In view of the receipt of the many representations and objections to shift the truck lay-by location, the District Collector, Namakkal has suggested to change the land in dispute pending in W.P.No.13700/2007, etc., to some other place. Moreover, the Secretary to Government, during the review meeting held on 17.05.2007 at Chennai, also supported the view of the District Collector, Namakkal, to go for alternative site for truck lay-by leaving the writ petitioner's land covered in W.P.No.13700/2007, etc. Therefore, it was decided to shift the truck parking location from S.Nos.130, 131, 132/2C, etc., to S.Nos.3/5B, 3/6, 3/7A, 3/8, 3/9 and 3/10 of Pappinaickanpatti Village and on that basis, the acquisition proceedings taken in S.Nos.130, 131, 132/2C, etc., of Pappinaickanpatti Village were decided to be withdrawn from acquisition and this position was already conveyed in the common counter filed by the respondents in W.P.Nos.13700, 13835 and 14635 of 2007. Therefore, it is not correct to say that the respondents have unnecessarily acquired the petitioner's land, when the earlier land acquired in S.Nos.130, 131, 132/2C, etc., of Pappinaickanpatti Village had been given up in view of several objections from various residents living therein. 12. Section 3A of the NH Act, 1956, provides sufficient power to the Central Government to acquire lands for a public purpose for the building, maintenance, management or operation of a National Highways or part thereof, by way of issuing notification in the official Gazette https://hcservices.ecourts.gov.in/hcservices/ declare its intention to acquire such land. Accordingly, the substance of the notification was published in the local dailies, namely, The New Indian Express and Thinathanthi on 05.09.2009. Thereafter, Section 3C provides that any person interested in the land may, within 21 days from the date of publication of the notification under sub-section (1) of Section 3-A, object to the use of the land for the purpose or purposes mentioned in that sub-section. When enquiry was held on 13.02.2009 by the Competent Authority, the petitioner has failed to attend the enquiry. Subsequently, thereafter, the petitioner has given his objection. The Competent Authority, after considering the petitioner's objection, dismissed his objection finding no merit thereof and thereafter, the respondents passed an award on 03.06.2009. After passing of the award, the respondents also deposited the compensation amount in Namakkal District Court on 01.09.2009. Since the land owners have refused to receive the compensation amount, the respondents issued a statutory notice under Section 3-E(1) of the National Highways Act, 1956, and after serving the same on the petitioner on 13.10.2009, on expiry of the mandatory 60 days period as on 13.12.2009, the 4th respondent has taken possession of the property and handed over the same to the 2nd respondent on 31.05.2010. The 2nd respondent also, after taking possession of the acquired property, has completed the construction of truck lay-by road by black tapping the same on 25.03.2011. The photographs filed by the respondents also show the completion of the construction of truck lay-by road and when the vehicle parking at the truck lay-by road has already commenced on 05.04.2011 and the same is also being used by the general public, by taking note of the purpose of acquisition of land is for the welfare of public and individual or private interest cannot be prevailed over the public interest, I do not find any merit in the writ petitions filed by the petitioners. 13. Further, when the petitioner came to this Court by filing the writ petitions, there was no order passed restraining the respondents from proceeding further. Again, it is pertinent to note that when the petitioner was given opportunity to putforth his objections to the Competent Authority, he has not participated in the enquiry, however, when he submitted his objection, the same was considered by the Competent Authority. Since the land, after the publication of the declaration under Section 3D(1) of the NH Act, shall vest absolutely with the Central Government free from all encumbrances, on taking possession of the land in question, the 2nd respondent has also completed the construction and on completion of the truck lay-by road, the same has been put to use. In addition to that, as I mentioned above, when the earlier acquisition proposal to acquire the land in S.Nos.130/3D, 130/4, 131, 132/2C, 130/3F, 130/3G, 132/2A, 132/2B, 132/2D2 of Pappinaickanpatti Village for the formation of truck parking / rest area to the transport vehicles have been dropped by the District Collector, Namakkal as decided by the Secretary to Government, on consideration of various representations and objections received from https://hcservices.ecourts.gov.in/hcservices/ nearby residents, the present acquisition proceedings seeking to acquire the petitioner's land cannot be found fault with. 14. Mr.AR.L.Sundaresan, learned Senior counsel for the petitioner forcibly contended that Section 3-C of the NH Act has given only right to the land owners for raising objections and accordingly, the petitioner has raised his objection. But, the respondents have not properly considered the petitioner's objection in compliance of the procedure adumbrated in Section 3-C of the Act. In support of his contention, he has placed reliance on an unreported judgment in W.A.Nos.339 to 349 of 2010, dated 09.11.2010, wherein it has been held that disallowing objection of land owners without assigning any reason is antithesis to reasonableness. But, in the present case, the judgment relied on by the learned Senior counsel does not support the case of the petitioner, since the objections were already considered and also for the reasons mentioned below. 15. Section 3-C provides that any person interested in the land may, within 21 days from the date of publication of the notification under sub-section (1) of Section 3-A, object to the use of the land for the purpose mentioned in that sub-section. On receipt of the said objection, as contemplated by Section 3-C, the Competent Authority held an enquiry on 12.10.2008. After careful consideration of the petitioner's objection, the respondent rejected the same in his proceedings dated 13.10.2008. Therefore, the right available under Section 3-C of the Act has been properly complied with by the respondents. Besides, when one another enquiry, as contemplated under Section 3-G(3) of the Act, was conducted on 13.02.2009 at Collector's office, Namakkal, the petitioner has filed the present writ petition. Therefore, at no point of time, the petitioner took care to participate in the enquiry. Hence, the contention raised by the learned Senior counsel for the petitioner that his only right available under Section 3-C has been ignored, does not merit consideration, as what is provided in the said legal provision has been duly complied with by the respondents. 16. In this context, it is more relevant to refer to a judgment of the Apex Court in the case of Ramniklal N.Bhutta and Another Vs. State of Maharashtra and Others ((1997) 1 SCC 134), wherein it has been held thus:- Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of https://hcservices.ecourts.gov.in/hcservices/ progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 -- indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. In the light of the above, no doubt it is true that proper development of road infrastructure is essential for economic development of the Country. When broad and high roads are required for economic, political and scientific growth of a Nation, the Competent Authorities are equally bound to ensure avoidance of frequent road accidents, which are often taking away many precious lives on the main highways due to continuous vehicular movement. In case of vehicles travelling from long distance, any repairs occurred in between, the parking areas for such vehicles on the very road side are required. Therefore, truck lay-by i.e., resting place on the road side has been formed in the land in question for the drivers and travellers to take rest and also to undertake the repairing works. Since this would reduce accidents in highways, the formation of truck lay-by as found by the respondents in public interest cannot be gainsaid. https://hcservices.ecourts.gov.in/hcservices/ 17. In result, for the foregoing reasons, I do not find any merit in the writ petitions filed by the petitioners. Accordingly, the present writ petitions fail and stand dismissed. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rkm To 1.The Secretary to Government,Union of India, Ministry of Shipping, Road Transport and Highways Department, New Delhi. 2.The Project Director, National Highways Authority of India, 4 Laning NH7, Karur, Salem District. 3.The