THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON'BLE SRI JUSTICE N. RAVI SHANKAR
W.A.No.80 of 2012
07.08.2012
Bhimavarapu Giridhar Kumar Reddy
The Union Government of India, Department of Shipping Roads, Transport &
Highways, represented by the Secretary, New Delhi and others
Counsel for the Appellant: Sri C.V. Mohan Reddy for M/s.T. Sreedhar
Counsel for Respondents 1 to 3 : Sri S.S. Varma, S.C for NHAI
Counsel for Respondent No.4 : G.P for Land Acquisition
>Head Note:
? Cases referred:
1. 2004 8 SCC 14
2. (2004) 8 SCC 453
3. (2009) 14 SCC 281
4. (2010) 11 SCC 242
5. (2011) 5 SCC 553
6. (2011) 12 SCC 375
7. AIR 1961 SC 493
8. AIR 1963 SC 395
9. AIR 1967 SC 1081
JUDGMENT : (per JUSTICE GODA RAGHURAM)
The unsuccessful writ petitioner is the appellant. The writ petition
seeking a declaration that the public notice dated 26-04-2010 issued by the 1st
respondent under Section 3 - G of the National Highways Act, 1956 (the '1956
Act') is arbitrary and illegal was rejected by the judgment dated 24-11-
2011. Hence this appeal.
To the extent relevant and material the case of the appellant (the
petitioner) as pleaded in the writ petition, may be noticed in brief :
(a) The petitioner owns an agricultural land of an extent of Ac.6-15 cents in
R.S.No.40 of Konthanapadu Village, Kunkipadu Mandal of Krishna District, situate
to the West of National Highway No.9, leading from Machilipatnam to Vijayawada;
(b) In August, 2007, without initiating acquisition proceedings the staff of
the respondents trespassed into the petitioner's property and erected some
boundary stones;
(c) On enquiries he learnt that the existing two-lane National Highway is
proposed to be widened to provide a four-lane Highway; to safeguard properties
of influential persons in the area, the respondent authorities have proposed
alignment of the road widening in such a way as to deprive the petitioner of an
extent of 130 feet depth of his property. Consequently he would lose Ac.2-22
cents to acquisition;
(d) The respondents without issuing even a notification under Section 3 - A of
the 1956 Act fixed boundary stones in his property. The petitioner thereupon
submitted a representation dated 06-09-2007 to Respondent Nos.1 and 2 and
forwarded a grievance on 09-09-2007 to the 2nd respondent. There being no
response has filed W.P.No.25911 of 2007. The said writ petition was disposed of
on 19-12-2007, directing the respondents not to disturb the petitioner's
possession without following the due process of law;
(e) On 01-01-2008, the 1st respondent issued a notification under Section 3 -
A(1) of the 1956 Act which was also published in the News Daily on 10-11-2008.
The petitioner's land was also specified for acquisition in this notification.
The petitioner submitted written objections to the acquisition on 27-11-2008, to
the 4th respondent. As there was no response thereto despite Section 3 - C
mandating providing of an opportunity of being heard, the petitioner submitted a
reminder on 04-01-2010 to the respondents. The 4th respondent received this
communication on 07-01-2010;
(f) In contravention of Section 3 - C and without providing an opportunity to
the petitioner a public notice under Section 3-G of the 1956 Act was issued on
26-04-2010. This was published in the newspaper on 01-05-2010;
(g) In paras - 6, 8 and 9 the petitioner specifically pleaded that his
objections dated 27-11-2008 were neither enquired into nor heard; that his
reminder dated 04-01-2010, received by the respondents on 07-01-2010,
also elicited no enquiry nor was he afforded an opportunity of personal hearing.
The specific contention is that in view of violation of Section 3 - C of the
1956 Act all subsequent proceedings including under Section 3 - D and 3 - G
would be void; and
(h) The writ petition was thereafter filed on 10-11-2008.
The Counter on behalf of the 3rd respondent filed
in the writ petition :
(i) The allegations of trespassing into the petitioner's property before
initiation of acquisition proceedings is denied;
(ii) The alignment of the road is finalized on technical parameters, on the
basis of reports by the consultants and using the contours of the existing road;
(iii) The contention that notification under Section 3 - D of the 1956 Act was
not published within one year from the date of issue of the notification under
Section 3 - A is denied. The notification under Section 3 - A(1) was published
on 01-10-2008 and the notification under Section 3 - D published on 24-09-2009,
in the Gazette of India, i.e., within one year from the date of publication of
the notification under Section 3 - A;
(iv) The 4th respondent who is the competent authority for land acquisition,
disallowed the objections filed by the petitioner, by proceedings dated 10-06-
2009; and
(v) The petitioner while challenging the notification dated 26-04-2010, issued
by the 4th respondent under Section 3 - G of the 1956 Act failed to challenge,
either the notification dated 01-10-2008 issued under Section 3 - A or the one
dated 24-09-2009 issued under Section 3 - D. Hence the writ petition is liable
to be dismissed.
While dismissing the writ petition the learned single Judge upheld the
grievance of the petitioner regarding serious transgression of his rights under
Section 3 - C of the 1956 Act, whereunder his objections (to the process of
acquisition) are required to be considered. However, the learned single Judge
held that even assuming that the petitioner's right under Section 3 - C was
violated, since he failed to question the declaration under Section 3 - D
whereby the land had vested in the Government, the petitioner cannot gainfully
challenge merely the notification issued under Section 3 - G of the Act which
deals with the quantum of compensation.
Counter filed in the appeal by the 4th respondent :
The 4th respondent has filed a counter-affidavit in the appeal. It is
admitted that the petitioner filed objections before the competent authority on
27-11-2008 (objecting to the acquisition proposals), pursuant to the
notification dated 01-10-2008 issued under Section 3 - A of the Act. These
objections were forwarded to the Tahsildar, Kankipadu, and the National Highways
Authority of India (NHAI), for detailed enquiry and report. The General Manager
(Tech) and Project Director submitted remarks on 18-06-2009. Thereafter the
competent authority passed orders under Section 3 - C over-ruling the
objections, vide proceedings dated 23-06-2009. This order was sent to the
Tahsildar, Kankipadu, for effecting service on the land owners. Thereafter the
declaration under Section 3 - D of the Act was approved and published in the
Gazette of India on 24-09-2009. The counter admits that the petitioner sought a
copy of the order purportedly passed under Section 3 - C of the 1956 Act under
the RTI Act, 2005 by an application dated 11-10-2010. The orders passed under
Section 3 - C of the Act dated 23-06-2010 were furnished to the petitioner on
19-10-2010. After publication of the declaration under Section 3 - D of the
Act, a notification under Section 3 - G was published in the newspapers on
01-05-2010 calling for claims and proof of title of interested persons. The
petitioner attended the award enquiry held on 20-05-2010 and claimed
compensation @Rs.10,000/- per sq.yd. Eventually, Award No.13/2012, dated 18-06-
2012 was passed and the compensation amount will be paid to the petitioner.
The petitioner has filed a reply to the counter-affidavit filed in this
appeal. In para - 3, the petitioner specifically pleads that in response to his
requisition under the RTI Act, 2005 what was furnished was proceedings dated 10-
06-2009 which is to the effect that no decision was taken on his objections and
this also does not pertain to the notification dated 01-10-2008 issued under
Section 3 - A of the Act nor to the land of the petitioner. The petitioner
categorically asserts that he is not aware of the proceedings dated 23-
06-2009 said to have been passed by the competent authority and the proceedings
dated 23-06-2009 have not been filed even with the counter. The petitioner
asserts that when he challenged the notification issued under Section 3 - G of
the Act dated 26-04-2010, the 3rd respondent in his counter-affidavit (in the
writ petition) at para - 6 pleaded that his objections were disallowed vide
proceedings dated 10-06-2009. Since a copy of the same was not furnished along
with the counter-affidavit in the writ petition, the petitioner obtained a copy
of the proceedings dated 10-06-2009 under the RTI Act and has filed it as an
additional material paper along with the reply affidavit in the writ petition.
The petitioner reiterates that on 19-10-2010 only proceedings dated 10-06-2009
was furnished to him under the RTI Act, 2005. The proceedings dated 23-06-2009
alleged to have been passed by the competent authority (rejecting the
petitioner's objections, under Section 3 - C of the 1956 Act) were never served
on him, at any time. The petitioner contends that in view of the provisions of
Section 3 - C(2) it is mandatory that he should be given a personal hearing and
this was denied him despite a specific request followed by a reminder dated
04-01-2010, which was received by the 4th respondent on 07-01-2010. The
petitioner specifically pleads that he did not participate in the alleged Award
Enquiry, either on 20-05-2010 as alleged in the counter-affidavit or on any
other date and has not also claimed compensation @Rs.10,000/- per sq.yd. He
categorically asserts that he has not received any notice of the Award Enquiry
either. The petitioner contends that since the mandatory procedure enjoined
under Section 3 - C of the 1956 Act is violated, the entire subsequent
proceedings including the declaration under Section 3 - D are void and that the
material on record categorically discloses that the provisions of Section 3 - C
and Section 3 - D(1) were violated. He had raised the specific plea in this
regard in the writ petition and the writ petition cannot therefore be rejected.
We have perused the record of the 4th respondent pertaining to the
impugned acquisition proceedings. The chronology of facts relevant may be
noticed:
(a) On 01-10-2008 the first respondent - Government of India caused a Gazette
publication of the notification under Section 3 - A of the 1956 Act proposing to
acquire the enumerated and specified extents of land, including an extent of
6,950 Sq.mtrs. in Sy.No.40-1 of Konthanapadu Village, Krishna District
(belonging to the petitioner). This notification was published in the daily
newspapers on 10-11-2008;
(b) On 27-11-2008 the petitioner forwarded his memorandum of objections, inter
alia objecting to the proposed alignment of the road occasioning the acquisition
and specifically requesting an opportunity for personal hearing. The 4th
respondent received the objections on 28-11-2008. On 04-01-2010, stating that
there is no response to his objections dated 27-11-2008, the
petitioner reiterated his earlier objections and the request for personal
hearing. This was received by the 1st respondent on 13-01-2010 and the 4th
respondent - competent authority on 07-01-2010.
(c) After noticing the Section 3 - G public notice dated 26-04-2010 issued
by the 1st respondent and published in the newspapers on 01-05-2010, the writ
petition was filed on 10-05-2010.
(d) In July, 2010 (no date mentioned) the 3rd respondent filed a counter-
affidavit. In para - 6 it is pleaded that the competent authority (the 4th
respondent) had disallowed the objections filed by the petitioner by his
proceedings dated 10-06-2009.
(e) On 11-10-2010, the petitioner applied under the RTI Act, 2005, for a copy
of the proceedings dated 10-06-2009 (pleaded in the 3rd respondent's counter to
be proceedings whereby petitioner's objections were disallowed by the 4th
respondent). On 19-10-2009, the 4th respondent's proceedings dated 10-06-2009
were furnished to the petitioner under the provisions of the RTI Act, under the
endorsement of the 4th respondent. The instrument dated 10-06-2009 is a letter
addressed by the 4th respondent to the 3rd respondent forwarding a summary of
the objections raised by several persons to the acquisition proposals vide the
notification issued under Section 3 - A. Serial No.4 of the table, in this
letter of the 4th respondent reflects the name of the petitioner, who along with
other objectors is stated to have sought re-survey of lands, in his presence, on
the ground that the demarcation was improperly done. The remark recorded by the
4th respondent on these alleged objections is that the Requisition Dept. is the
Authority to decide the action which is to be done. The letter dated 10-06-2009
cannot by any stretch of imagination amount to disposal of the petitioner's
objections. Be that as it may.
(f) On 26-06-2012, the RDO Vijayawada filed a counter-affidavit in this
appeal. In para - 3(ii) it is pleaded that the petitioner had submitted an
application dated 11-10-2010 under the RTI Act for a copy of the order
dated 23-06-2012 passed under Section 3 - C and the same was furnished on 19-11-
2010.
From the counter-affidavit of the 3rd respondent in the writ petition and the
counter dated 26-06-2012 by the RDO in this appeal it is clear that affidavits
are being filed recklessly and carelessly. The averment in para - 6 of the 3rd
respondent's counter (in the writ petition) asserting that objections by the
petitioner to the acquisition were disallowed by the 4th respondent on 10-06-
2009 are untrue, as already noticed. The averment in the counter dated 26-06-
2012 filed by the RDO [in this appeal - vide para - 3(ii)] that the petitioner
sought a copy of the order dated 23-06-2009 passed by the 4th respondent under
Section 3 - C and this was furnished to the petitioner on 19-10-2010, is also a
false and careless averment. As is apparent from the record, on 11-10-2010 the
petitioner sought a copy of the 4th respondent's proceedings dated 10-06-2009,
which was asserted in the 3rd respondent's counter (in the writ petition) to
have been proceedings whereby the 4th respondent disallowed the petitioner's
objections. As per the endorsement dated 19-10-2010 of the 4th respondent and
the accompanying proceedings dated 10-06-2009 also, what was communicated is
not a proceeding dated 23-06-2009 but the letter dated 10-06-2009
addressed by the 4th respondent to the 3rd respondent, forwarding objections of
persons whose lands were proposed to be acquired.
(g) Para - 3(i) of the RDO's counter in this appeal ambiguously asserts that
the 4th respondent's over-ruling of the petitioner's objections, under Section 3
- C vide proceedings dated 26-03-2009 were sent to the Tahsildar Konthanapadu
for effecting service on the land owners. It is neither pleaded nor does the
original record disclose that the order dated 26-03-2009 of the 4th respondent
(rejecting the objections of the petitioner and others) was communicated to the
petitioner.
(h) The 3rd respondent's counter in the writ petition and the RDO's counter in
this appeal are designedly silent on the petitioner's specific allegations that
despite his specific request vide his memorandum of objections dated 27-11-
2008 and reminder dated 04-01-2010, no personal hearing was afforded to him.
Non-traverse in the circumstance is admission.
(i) On 24-09-2009 (according to the RDO's counter in this appeal) the
declaration under Section 3 - D was published in the Gazette; and on 01-05-2010
public notice under Section 3 - G, requesting interested persons to appear (in
person, by an agent or a legal practitioner with original documents or xerox
copies pertaining to their lands under acquisition and state the nature or their
respective interest in such lands) was published.
(j) The RDO's counter also avers that Award No.13/2012 was passed on 18-06-
2012.
Section 3-C(1) enjoins providing of an opportunity, to any person interested in
the land notified for acquisition (under Section 3 - A(1)) to object to the use
of the land for purpose or purposes notified, within 21 days from the date of
publication of such notification. In the present case, the notification under
Section 3 - A(1) dated 01-10-2008 was published on 10-11-2008 in the newspapers
and the petitioner lodged his memo of objections on 27-11-2008. This was
received by the 4th respondent - competent authority on 28-11-2008, under
acknowledgment.
Sub-section 2 of Section 3 - C enjoins the competent authority to give the
objector an opportunity of being heard, either in person or by a legal
practitioner. This provision further enjoins the competent authority to pass an
order either allowing or disallowing the objections, after hearing such
objections and making such further enquiry, if any, as the competent authority
considers necessary.
The petitioner, both in his objections dated 27-11-2008 and his reminder
dated 04-01-2010 received by the 4th respondent - competent authority and
acknowledged, had specifically sought personal hearing. The petitioner
specifically pleaded in the writ petition and in this appeal that no opportunity
of hearing was afforded by the 4th respondent. The counter of the 3rd
respondent in the writ petition and the counter of the RDO on behalf of the 4th
respondent in this appeal do not deny this averment of the petitioner, as to
denial of an opportunity of hearing. In the writ petition and in this appeal
the petitioner specifically pleaded that the order dated 23-06-2009 whereby his
objections are stated to have been over-ruled by the 4th respondent, was not
communicated to him. In the 3rd respondent's counter in the writ petition and
in the RDO's counter in this appeal, this averment of the petitioner (as has
already been noticed herein above) is carelessly and irrelevantly responded to.
The original record does not disclose communication of the 4th respondent's
order dated 23-06-2009, to the petitioner.
The learned Government Pleader for land acquisition representing the 4th
respondent has fairly conceded the factual position that neither opportunity of
personal hearing was afforded to the petitioner before rejecting his objections
by the order dated 23-06-2009 nor was the order dated 23-06-2009 ever
communicated to the petitioner.
We have already noticed that the petitioner specifically impeached all
proceedings subsequent to the Section 3 - C(1) stage, contending that in view of
the denial of an opportunity for hearing as mandated by Section 3 - C(2) and the
non-communication of the order of the 4th respondent rejecting his objections,
all proceedings including any declaration under Section 3 - D and the public
notice under Section 3 - G would be void and inoperative.
Section 3 - D enacts that where no objection under Section 3 -C(1) 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 submit a report accordingly to
the Central Government, whereafter the Central Government shall declare by
notification in the official Gazette that the land should be acquired for the
purpose or purposes mentioned in Section 3 - A(1). Section 3 - D(2) declares
that on the publication of the declaration in Sub-section 1, the land shall vest
absolutely in the Central Government free from all encumbrances.
In the case on hand, violation of the mandatory provisions of Section 3 -
C(2) by the 4th respondent, in failing to provide an opportunity of hearing to
the petitioner (despite the mandate of Section 3 - C(2) and the specific request
of the petitioner in this behalf vide his memorandum of objections dated 27-11-
2008 and 04-01-2010), is established. On account of this illegality, all the
proceedings subsequent to the stage under Section 3 - C(1) are void and
inoperative and the fact of publication of a declaration under Section 3 - D(1)
would not cure that fatal infirmity.
Affording of opportunity to persons whose lands are proposed for acquisition
under the 1956 Act, mandated by Section 3 - C(1) is neither a ritual nor an
empty formality. It is a salutary provision akin to the provisions of Section 5
- A of the Land Acquisition Act, 1894. In Union of India v. Mukesh Hans1; Union
of India v. Krishan Lal Arneja2; Mahender Pal and ors. v. State of Haryana and
ors.3; Anand Singh v. State of U.P.4; Radhy Shyam v. State of U.P.5; and in
Greater Noida Industrial Development Authority v. Devendra Kumar and others6,
the Supreme Court observed that the opportunity of hearing to the land owners to
object to acquisition of their lands is a valuable right which cannot be
jettisoned for jejune reasons and that such opportunity and compliance with
rules of natural justice is a small price which the State should always be
prepared to pay before it can deprive any person of his property. These
observations of the apex court made in the context of the Land Acquisition Act
apply to the present acquisition a fortiori.
In State of Punjab v. Sodhi Sukhdev Singh7 , and Bachhittar Singh v. State
of Punjab and another8 and in several other decisions, the Supreme Court
consistently declared the principle that an un-communicated administrative order
is inoperative. Section 3 - C(2) enjoins the competent authority to provide an
objector an opportunity of being heard and thereafter to either allow or
disallow the objections by an order. Since hearing of objections to the process
of acquisition is a valuable right, an objector is entitled to communication of
an order passed by the competent authority rejecting his objections and the
reasons recorded therefor. Since the order dated 23-06-2009 passed by the 4th
respondent was not communicated to the petitioner there is no disposal in law of
the petitioner's objections by the competent authority under Section 3 - C(2) of
the Act.
For all the aforesaid reasons we are of the considered view that the
learned single Judge erred in rejecting the writ petition.
The learned Government Pleader for Land Acquisition appearing for the 4th
respondent referred to the judgment of a Constitution Bench in Raja Anand Brahma
Shah v. The State of U.P. and others9, to buttress the contention that once the
notification under Section 3 - D is issued the anterior process of acquisition
or the subsequent process after vestiture of title in the acquired property in
the State, cannot be judicially reviewed. Specific reliance is placed by the
learned Government Pleader to the observations in para - 3 of this judgment. We
have carefully perused the judgment and are of the considered view that the
observations in this judgment do not support the learned Government Pleader's
contention.
The facts in the above case need to be considered. The appellant had filed the
writ petition challenging acquisition on the ground that it was not for a public
purpose and the proceedings were consequently without jurisdiction. Invocation
by the State, of the provisions of Section 17(1) and consequent avoidance of the
provisions of Section 5 - A was also questioned. By the date of filing of the
writ petition, the declaration under Section - 6 (of the Land Acquisition Act,
1894), taking of possession and passing of the award and thereon an application
(by the appellant) for reference under Section 18 had taken place. The
petitioner sought quashing of notifications issued under Sections 4 and 6 and
further proceedings. The writ petition was dismissed by the High Court. It is
in this context that the observations in para - 3 were recorded by the Supreme
Court. The Supreme Court observed that a declaration made by the State
Government in the notification under Section 6(1) of the Act, that the land was
required for a public purpose, is made conclusive by Section 6(3) and it is not
open to a Court to go behind it and try to satisfy itself whether in fact the
acquisition was for a public purpose. It was also observed that, if it appears
that what the Government was satisfied about is not a public purpose but a
private purpose or no purpose at all, the action of the Government would be
colourable as being outside the power conferred upon it by the Act and its
declaration under Section - 6 would be a nullity. This judgment is not an
authority for the proposition that once a declaration under Section 3 - D of the
1956 Act (corresponding to Section 6 of the Land Acquisition Act), is made the
process of acquisition cannot be challenged even if there be violation of the
mandatory provisions of Section 3 - C, i.e., denial of opportunity of hearing
and non-communication of the order of the competent authority disallowing the
objections lodged to the process of acquisition.
On the above analyses the appeal requires to be and is allowed. The
notification dated 24-09-2009, issued under Section 3 - D, and the public notice
dated 01-05-2010 issued under Section 3 - G (only to the extent these pertain to
the land of the petitioner - proposed for acquisition) are declared invalid and
inoperative. The 4th respondent - the competent authority may however issue a
notice to the petitioner intimating the date for hearing, affording reasonable
time therefor and upon hearing of such objections, may pass appropriate orders.
Such orders shall be communicated to the petitioner by Registered Post Ack. Due.
Further process of acquisition, of the petitioner's property shall depend on the
order passed by the 4th respondent under Section 3 - C and proceedings
thereafter, under the provisions of the Act, in accordance with law.
Since mandatory provisions of Section 3 - C were violated and the
petitioner subjected to this avoidable, litigative trauma and expense, we
consider it appropriate to allow this appeal as above, with costs of Rs.2,500/-
payable by the respondents jointly and severally, to the petitioner.
The appeal is allowed as above with costs.
_____________________
JUSTICE GODA RAGHURAM
______________________
JUSTICE N. RAVI SHANKAR
Dated: 07.08.2012
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