IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.02.2007 CORAM: THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN W.P.Nos.1482 AND 1869 OF 2007 And M.P.Nos. 2, 3, 1 and 4 of 2007 Shri Andal Alagar Kalyana Mandapam Private Limited, Rep., by its Managing Director Mrs.V.Prremalatha, No.54-A, Kannammal Street, Kannabiran Colony, Chennai-600 093. .. Petitioner in WP 1482/2007 1.Mrs.V.Prremalatha 2.A.Vijayakant 3.Mrs.K.Amsaveni 4.Mrs.R.Radha 5.Mr.L.K.Sudhish 6.Mrs.Devaki Nagarajan .. Petitioners in WP 1869/2007 vs. 1.The Union of India rep., by its Secretary, Ministry of Shipping, Road Transport and Highways, Department of Road Transport and Highways, New Delhi. 2.The Competent Authority and Special District Revenue Officer (L.A.), National Highway Schemes, Kancheepuram and Tiruvallur Districts, R.D.O. Office, Kancheepuram. 3.The Project Director, National Highways Authority of India, SPIC House, No.88, Anna Salai, Guindy, Chennai-600 032. 4.Hon'ble Minister Mr.T.R.Balu, Ministry of Shipping, Road Transport and Highways, Department of Road Transport and Highways, New Delhi. 5.The Central Public Information Officer, National Highways Authority of India, Central Information Commission, Old JNU Campus, Block-IV, 5th Floor, New Delhi-110 067. .. Respondents in both WPs https://hcservices.ecourts.gov.in/hcservices/ WP No.1482/2007: Writ petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, calling for the entire records of the first respondent relating to the impugned Notification in S.O.No.1622(E), dated 18.11.2005 of the first respondent and the records relating to the consequential award passed by the second respondent in Rc.No.466/2005/NH dated 8.12.2006 in respect of the petitioner's Kalayana Mandapam situated on the lands comprised in T.S.Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 to an Plot area of 3642 square metres at No.106, Koyambedu Village, Egmore-Nungambakkam Taluk, Chennai District as referred in the impugned award and quash the said impugned Notification in S.O.No.1622 (E) dated 18.11.2005 and the consequential award in Rc.No.466/2005/NH dated 8.12.2006 and consequently to forbear the official respondents from acquiring the portion of lands wherein the superstructures are put up in Survey Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 in Koyambedu Village, Chennai District. WP No.1869/2007: Writ petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, calling for the entire records of the first respondent relating to the impugned Notification in S.O.No.1622(E), dated 18.11.2005 of the first respondent and the records relating to the consequential award passed by the second respondent in Rc.No.466/2005/NH dated 8.12.2006 in respect of the petitioner's land and building comprised in T.S.Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 to an extent of 2164.5 square metres at No.106, Koyambedu Village, Egmore-Nungambakkam Taluk, Chennai District as referred in the impugned award and quash the said impugned Notification in S.O.No.1622 (E) dated 18.11.2005 and the consequential award in Rc.No.466/2005/NH dated 8.12.2006 and consequently to forbear the official respondents from acquiring the portion of lands wherein the superstructures are put up in Survey Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 in Koyambedu Village, Chennai District. For petitioners in both WPs : Dr.Rajeev Dhavan, Senior Counsel for Mr.S.Manimaran. For Respondents-1&2 : Mr.V.T.Gopalan, in WP 1482/2007 and Addl. Solicitor General for Respondents 1to 3 in WP 1869/2007 For Respondents-3&4 : Mr.P.Wilson, in WP 1482/2007 and Asst. Solicitor General for Respondent-4 in WP 1869/2007 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER Under the National Highways Development Project Phase-I, known as "Golden Quadrilateral", the Government of India proposed three Grade Separators, along National Highways 4, 45 and 205 in the City of Chennai, in three major arterial junctions, viz., Kathipara (Guindy), Koyambedu and Padi, apart from a flyover in front of Chennai Air Port. 2. By a notification of the Government of India, Ministry of Shipping, Road Transport and Highways (Department of Road Transport and Highways) bearing No.S.O.1130(E) dated 12.8.2005, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub Section (ii) dated 12.8.2005, issued under Section 3-A (1) of the National Highways Act, 1956, (hereinafter referred to as the 'Act') the proposal to acquire several lands in Koyambedu Village, Egmore-Nungambakkam Taluk, Chennai District was notified as being required for the public purpose of construction of free flow facilities along National Highway No.4. The substance of the said notification was published in one English Daily and one Vernacular Daily on 20.8.2005 and after considering the objections raised by some of the land owners, with reference to the remarks of the National Highways Authority of India, a declaration under Section 3-D (1) of the Act was issued by way of a notification in S.O.1622(E) dated 18.11.2005. The said declaration was also published in the Newspapers on 15.12.2005 and an award was passed on 8-12-2006. 3. The lands in New Survey Nos.14/1, 14/2, 14/3 and 15/2, measuring 1582 sq.mtrs., 286 sq.mtrs., 165 sq.mtrs., and 1083.5 sq.mtrs., respectively, of Koyambedu Village, Egmore-Nungambakkam Taluk, owned by six members of a family, formed part of the said acquisition. These six members of the family have joined together and filed a writ petition in W.P.No.1869 of 2007, challenging the declaration issued under Section 3-D (1) as well as the Award passed on 8.12.2006. 4. Two out of the six land owners, are the Managing Director and Director of a Private Limited Company by name Shri Andal Alagar Kalyana Mandapam Pvt. Ltd., which owns a Kalyana Mandapam constructed on the aforesaid lands. Therefore, as the owner of the superstructure, the said Private Limited Company has also filed a writ petition in W.P.No.1482 of 2007, challenging the declaration dated 18.11.2005 issued under Section 3-D(1) as well as the Award passed on 8.12.2006. 5. I have heard Dr.Rajeev Dhavan, learned Senior Counsel appearing for the petitioners in both the writ petitions, Mr.V.T.Gopalan, learned Additional Solicitor General and Mr.P.Wilson, learned Asst. Solicitor General for Official respondents in both the writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 6. Before getting into the rival submissions, it is necessary to set out the list of dates and events, on which there is no controversy. They are as follows:- 12.08.2005 Notification under section 3-A issued in Government Gazette 20.08.2005 Paper Publication of the substance of Notification made 12.09.2005 Competent Authority writes to Project Director seeking for remarks on objections by land owners 14.09.2005 Remarks sent by NHAI to Competent Authority 29.09.2005 Proceedings of DRO u/s 3(C)(2) of NH Act 18.11.2005 Notification under Section 3-D(1) issued in Gazette 20.12.2005 Publication in News Papers of the declaration under Section 3-D(1) 05.01.2006 One of the writ petitioners write to the Competent Authority claiming that no notice was issued and no sketch was furnished and that therefore she was not aware of the portion of the land sought to be acquired. By the said letter, the writ petitioner seeks information regarding the portion of the land sought to be acquired, along with a field map or sketch. She also encloses copies of documents of title. 31.01.2006 Legal notice issued by the Counsel for the writ petitioner reiterating her claim that no notice was issued and no sketch was furnished and that therefore she was not aware of the portion of the land sought to be acquired. Hence, the counsel also seeks the field map and sketch. 19.02.2006 An interview allegedly given by the fourth respondent (Minister) to the Press, is published in a Tamil Daily Newspaper. As per the Newspaper report, the fourth respondent indicated that the Central Government was prepared to reconsider if an alternative proposal is submitted by the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 03.03.2006 Representation submitted by one of the writ petitioners along with an alternative Plan and a Technical Opinion from a retired Chief Urban Planner of the Chennai Metropolitan Development Authority. 01.11.2006 Alternative proposal of the writ petitioner rejected by the Government of India 20.11.2006 Request made by the writ petitioner for reconsideration of the matter 08.12.2006 Award passed by the Competent Authority 11.12.2006 Letter of the Competent Authority to collect the award amount 28.12.2006 Notice issued to Writ Petitioner u/s 3-E(1) of the Act by the Competent Authority 03.01.2007 Petition for reconsideration also rejected 05.01.2007 Writ petitions filed 7. In the background of the events short listed above, Dr.Rajeev Dhavan, learned Senior Counsel for the petitioners contended that the whole sequence of events, could be dissected into two parts, viz., (i) the events commencing from the notification under Section 3-A(1) (dated 12.8.2005) and culminating in a declaration under Section 3-D(1) (dated 20.12.2005); and (ii) the events starting from the request of the petitioner for details, by her letter dated 5.1.2006 and her proposal dated 3-3-2006 for an alternative Plan, culminating in the rejection of the alternative proposal on 1.11.2006 and the Award passed on 8.12.2006. 8. In so far as the first part of the sequence of events is concerned, Dr.Rajeev Dhavan, learned Senior Counsel contended that the notification under Section 3-A(1) as well as the declaration under Section 3-D(1) are vitiated for two reasons, viz.,:- (a) that the names of the owners of these lands were wrongly mentioned in respect of Survey Nos.14/1 and 15/2, though they were correctly mentioned in respect of Survey Nos.14/2 and 14/3; and (b) that the precise details of the lands sought to be acquired, with reference to the sketch/field map and their portion as part of the whole, were not mentioned in the https://hcservices.ecourts.gov.in/hcservices/ notification, reducing the opportunity of submitting objections into an empty formality and a mockery. 9. In so far as the second part of the sequence of events is concerned, the learned Senior Counsel for the petitioners contended - (a) that there was a promissory estoppel on the part of the respondents in respect of the alternative proposal submitted by the petitioners; (b) that the petitioners developed a legitimate expectation, in view of the promises made by the fourth respondent that their Kalyana Mandapam could be retained in tact; (c) that the invitation for an alternative proposal before the ensuing Elections and the rejection of the alternative proposal after the Elections, exposed the mala fide intentions on the part of the fourth respondent; and (d) that even while exercising their powers as administrative authorities, the respondents are duty bound to adopt the least invasive or least restrictive choice of measures, so that there is "proportionality" and "reasonableness" in the administrative action. 10. Per contra, Mr.V.T.Gopalan, learned Additional Solicitor General contended - (a) that the challenge to the acquisition proceedings, having been made after the property vested with the Central Government under Section 3-D (2) and after the Award was passed under Section 3-G, was not maintainable; (b) that the proposal for an alternative Plan itself, having emanated after the declaration under Section 3-D(1) and after the property having vested with the Central Government under Section 3-D(2), could not have been considered in the teeth of the provisions of the Act; (c) that the question of mala fides did not arise in as much as the very proposal for acquisition was mooted way back in the year 2004 with the preparation of a Detailed Project Report, survey of the lands, floating of tenders etc., while one of the petitioners admittedly started a Political Party only in September, 2005 and that therefore no one could have envisaged the future course of events at that stage; https://hcservices.ecourts.gov.in/hcservices/ (d) that there was no promise and that there could not have been a promise against statutory provisions and hence the question of promissory estoppel did not arise; and (e) that the course of events showed that there was no scope for legitimate expectation. Now let us consider the rival submissions one after another. I. CHALLENGE TO THE ACQUISITION ON THE GROUND OF VAGUENESS AND LACK OF PARTICULARS: 11. Assailing the acquisition proceedings on the ground of vagueness and lack of particulars, Dr.Rajeev Dhavan, learned Senior Counsel for the petitioners, drew my attention to the notification under Section 3-A(1) and pointed out that the notification did not mention the names of the owners of any of the lands sought to be acquired. In Column No.2 of the Schedule to the notification, the Survey Numbers are mentioned with or without the word "Part", Column No.3 mentioned the type of land as "Private or Government", Column No.4 mentioned the nature of land as "Ryotwari Manai" or "Village Natham" and Column No.5 mentioned the extent in square metres. There were no details in the notification regarding the portion of the land sought to be acquired, wherever only a part of the land was sought to be acquired. Therefore, the land owners, even if they had any notice regarding the acquisition, did not have any information regarding the portion of the land sought to be acquired. 12. Section 3-A(2) of the National Highways Act, 1956, hereinafter referred to as the 'Act', made it mandatory for every notification to contain a brief description of the land. The Section reads as follows:- "3-A. POWER TO ACQUIRE LAND ETC.-- (1) .. .. .. .. (2) Every notification under Sub Section (1) shall give a brief description of the land." 13. In order to drive home the aforesaid contention, the learned Senior Counsel for the petitioners, relied upon the decisions of the Supreme Court in Munshi Singh and Others vs. Union of India ((1973) 2 SCC 337)), State of Orissa vs. Sridhar Kumar Mallik and Others ((1985) 3 SCC 697)), Om Prakash Sharma and Others vs. M.P.Audyogik Kendra Vikas Nigam and Others ((2005) 10 SCC 306)) and Competent Authority vs. Barangore Jute Factory and Others ((2005) 13 SCC 477)). 14. In Munshi Singh case, the Supreme Court found on facts that the notification under Section 4(1) was vitiated by vagueness and indefiniteness of the public purpose for which the land was sought to be acquired. Therefore, the Supreme Court held in para- 9 that if the opportunity to file objections and participate in https://hcservices.ecourts.gov.in/hcservices/ the enquiry under Section 5-A has any purpose and if it has to be given its full effect, the notification under Section 4(1) must give some definite indication or particulars of the purpose. But while holding so, the Supreme Court also gave reasons for such a conclusion in the following words, in para-9:- "In the absence of such specific or particular purpose being stated the objector cannot file any proper or cogent objections under Section 5-A which he has a right to do under that provision. We would accordingly hold that owing to the vagueness and indefiniteness of the public purpose stated in the notifications under Section 4(1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under Section 5-A of the Acquisition Act." Thus, the Supreme Court was convinced on facts in the said case that the appellants therein were neither aware of nor shown the scheme or Master Plan in respect of planned development of the area in question. 15. In State of Orissa vs. Sridhar Kumar Mallik (1985 (3) SCC 697), the Supreme Court was concerned with a proclamation issued under Section 417-A (1-a) of the Orissa Municipal Act, 1950. The proclamation was intended to extend the Orissa Municipality Act, 1950, to an area other than a Municipality, leading to certain consequences such as the imposition of different kinds of taxes. Therefore, the law laid down therein that the proclamation must be precise and clear and must indicate with sufficient accuracy, the area intended to be notified, cannot be imported to a case of land acquisition. 16. In Om Prakash Sharma case (2005 (10) SCC 306), the notification under Section 4(1) of the Land Acquisition Act, 1894, was held to be invalid, on account of the fact that neither the survey numbers nor the names of the land owners were furnished in the notification. But in the present case, the survey numbers as well as the extent are mentioned and hence it cannot be compared with Om Prakash Sharma case. 17. Heavy reliance was placed by the learned Senior Counsel for the petitioners, on the judgment in Competent Authority vs. Barangore Jute Factory (2005 (13) SCC 477). The facts of the said case come almost closer to the facts of the case on hand. That was also a case under the National Highways Act, 1956. As in the present case, the notification under Section 3-A(1) contained the details of the survey numbers, extent of land, classification of land etc. But many of the lands sought to be acquired in that case were only part of the whole land in certain survey numbers. Therefore, a contention was raised that when only a part of a https://hcservices.ecourts.gov.in/hcservices/ larger tract or larger chunk of land was sought to be acquired, the land owners will not be in a position to know which part was acquired and they would not be in a position to object to the acquisition effectively. Considering the scope of the requirement under Section 3-A(2) to give a brief description of land, the Supreme Court held in para-5 of the said judgment as follows:- "So far as the question whether the impugned notification meets the requirement of Section 3-A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of lands in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the law." 18. Even in the present case, the notification under Section 3-A (1) shows that in respect of a few survey numbers, the entire land in the survey number is sought to be acquired and in respect of a few survey numbers, only a part of the land is sought to be acquired. The details of the portion of the land to be acquired and the portion of the land left out, are not indicated in the notification and hence the ratio laid down in the aforesaid decision of the Supreme Court appears, on a cursory glance, to be squarely applicable to the case on hand. But it is not so. 19. After laying down the law in para-5 (as extracted above), the Supreme Court, qualified the same with a rider in paras-6 and 7 as follows:- "6. While dealing with the question of brief description of land in the acquisition notifications, reference was made to some judgments of this Court where acquisition notifications under Section 4 of the Land Acquisition Act had come up for consideration https://hcservices.ecourts.gov.in/hcservices/ on account of challenge being levelled on the ground of vagueness of the notifications. In most of these cases, plan of the area under acquisition was made part of the notifications to show that the requirement of description of land was met. This leads us to inquire whether there was any site plan forming part of the impugned notification. 7. The availability of a plan would have made all the difference. If there is a plan, the area under acquisition becomes identifiable immediately. The question whether the impugned notification meets the requirement of brief description of land under Section 3-A (2) goes to the root of the matter. The High Court rightly observed: "... It is just not possible to proceed to determine the necessity of acquisition of a particular plot of land without preparation of a proper plan." The appendix to the impugned notification shows that in many cases small parts of larger chunks of land have been notified for acquisition. This is not possible without preparing a plan. But where is the plan? The notification in question makes no reference to any plan. Our attention was drawn to averments in pleadings by the writ petitioners and replies thereto of the acquiring authority. The writ petitioners have pleaded that there was no plan. Replies are vague and by way of rolled-up answers. There is no specific reply. It is obvious that there was no plan and, therefore, none was referred to in the pleadings nor anything was produced before the Court at the hearing. Learned counsel for the competent authority tried to submit before us that there was a plan at the time of issue of the notification and the writ petitioners ought to have inspected it, if they so desired. He further submitted that the plan was produced before the High Court. We find that both these submissions are not sustainable as they are not correct. A reference to the impugned notification shows that there is no mention of any plan. Without this how can anybody know that there was a plan which could be inspected and inspected where? We are inclined to accept that there was no plan accompanying the impugned notification. During the course of hearing we were shown a plan which we are unable to link with the impugned notification. This was a 1996 PWD plan. PWD is a department of the State Government. The impugned notification is by the Central Government. NHAI is established under a Central Act. The competent authority under https://hcservices.ecourts.gov.in/hcservices/ Section 3 of the Act is appointed by the Central Government. Therefore, this State Government plan of 1996 (the impugned notification is of 1998) is of no assistance. The impugned judgment of the High Court emphasises the need for a plan. It is clear from the judgment of the High Court that no plan was produced before it. The absence of any reference to a plan in the impugned notification and in fact non-availability of any plan linked to the notification, fortifies the argument that the description of the land under acquisition in the impugned notification fails to meet the legal requirement of a brief description of the land which renders the notification invalid." 20. Thus, the acquiring authority failed at two levels in the said case before the Supreme Court, viz., (i) by failure to append a plan to the notification and (ii) by failure to produce a plan even at the time of hearing, so as to link the same with the notification. But in the present case, the notification published in the Gazette of India under Section 3-A (1) of the Act, contained the following information, as part of the notification itself, immediately before the schedule:- "The land plans and other details of the land covered under this notification are available and can be inspected by the interested persons at the Office of the Competent Authority." 21. The notification dated 12.8.2005 gave a time limit of 21 days for any person interested in the lands to raise objections under Section 3-C (1) of the Act and admittedly, the petitioners failed to avail the said opportunity. The petitioners did not avail either the opportunity to file objections in response to the notification dated 12.8.2005 or the opportunity to inspect the land plans and other details at the Office of the Competent Authority, despite an offer being made in the notification itself. Therefore, on facts, I find that the law laid down by the Supreme Court in Competent Authority vs. Barangore Jute Factory (2005 (13) SCC 477), is not applicable to the case on hand. A similar view is taken by the Division Bench of this Court