* HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
AND
* HON'BLE MR. JUSTICE NINALA JAYASURYA
+ WRIT APPEAL Nos.344 and 369 OF 2021
%Date : 07.10.2021
WRIT APPEAL No.344 of 2021
# Lanka Prabhakar Rao, S/o.Nageswara Rao,
aged about 61 years, Occ: Agriculture,
R/o.D.No.2-265, Venkatapalem Village,
Thulluru Mandal, Guntur District and others. ..... Appellants
and
$ Union of India, Ministry of Shipping,
Roads, Transport and Highways,
New Delhi, Rep. by its Secretary and others. ....Respondents
WRIT APPEAL No.369 of 2021 #Yarlagadda Harish Chandra Prasad, S/o. Sriramulu, aged about 62 years, Occ: Agriculture and Business, R/o.D.No.32-9-12, Madhu Malaxmi Chambers, 4th Floor, Moghalrajapuram, Vijaywada and another. .....Appellants And $ Union of India, rep. by its Secretary, Ministry of Shipping, Road, Transport and Highways, New Delhi and others. ....Respondents < GIST :
> HEAD NOTE :
WRIT APPEAL No.344 of 2021 ! Counsel for the appellants : Mr. C.V.Rudra Prasad ^ Counsel for respondents Nos.2 and 3 : Mr. P. Veera Reddy, Senior Counsel, For Mr. S.S.Varma, standing counsel for NHAI ^ Counsel for respondent No.4 : Mr. P. Sudhakar Reddy, Addl. Advocate General For Mr. Kasa Jagan Mohan Reddy WRIT APPEAL No.369 of 2021 ! Counsel for the appellants : Mr. D.Satya Siva Darshan ^ Counsel for respondents Nos.2 and 3 : Mr. P. Veera Reddy, Senior Counsel, For Mr. S.S.Varma, standing counsel for NHAI ^ Counsel for respondent No.4 : Mr. P. Sudhakar Reddy, Addl. Advocate General ? CASES REFERRED :
1. (2020) 8 SCC 129
2. AIR 1964 SC 1006
3. (1996) 11 SCC 501
4. 2020 SCC Online Ker 16255
5. AIR 1959 SCC 308
6. 2000 SCC Online A.P., 88
7. 2004 SCC Online, Cal 232
8. (2007) 6 SCC 555
9. 2017 SCC Online Hyd, 250
10. MANU/JH/1649/2017
11. (2005) 13 SCC 477
12. 2012 SCC Online A.P., 793 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE NINALA JAYASURYA WRIT APPEAL Nos. 344 of 2021 & 369 of 2021 (Taken up through video conferencing) WRIT APPEAL No.344 of 2021 Lanka Prabhakar Rao, S/o.Nageswara Rao, aged about 61 years, Occ: Agriculture, R/o.D.No.2-265, Venkatapalem Village, Thulluru Mandal, Guntur District and others. ..... Appellants Versus Union of India, Ministry of Shipping, Roads, Transport and Highways, New Delhi, Rep. by its Secretary and others. ....Respondents Counsel for the appellants : Mr. C.V.Rudra Prasad Counsel for respondents Nos.2 and 3 : Mr. P. Veera Reddy, Senior Counsel, For Mr. S.S.Varma, standing counsel for NHAI Counsel for respondent No.4 : Mr. P. Sudhakar Reddy, Addl. Advocate General WRIT APPEAL No.369 of 2021 Yarlagadda Harish Chandra Prasad, S/o. Sriramulu, aged about 62 years, Occ: Agriculture and Business, R/o.D.No.32-9-12, Madhu Malaxmi Chambers, 4th Floor, Moghalrajapuram, Vijaywada and another. .....Appellants Versus Union of India, rep. by its Secretary, Ministry of Shipping, Road, Transport and Highways, New Delhi and others. ....Respondents Counsel for the appellants : Mr. D.Satya Siva Darshan Counsel for respondents Nos.2 and 3 : Mr. P. Veera Reddy, Senior Counsel, For Mr. S.S.Varma, standing counsel for NHAI Counsel for respondent No.4 : Mr. P. Sudhakar Reddy, Addl. Advocate General Dates of hearing : 23.07.2021, 09.08.2021 and 12.08.2021 Date of pronouncement : 07.10.2021 COMMON JUDGMENT (Per Ninala Jayasurya, J) These two appeals arise out of the judgment of the learned Single Judge dated 14.06.2021 dismissing W.P.No.18829 of 2019 and are disposed of by this common judgment.
2. Challenging the order of the learned Single Judge, two groups of petitioners separately instituted the above appeals. The parties are referred to as they were arrayed in the writ petition, for the sake of convenience.
3. The brief factual matrix of the case is as follows:
Pursuant to a decision taken by the Government of India to upgrade the existing Four Lane into Six Lane of Vijayawada - Gundugolanu section of N.H.-16(5) in the State of Andhra Pradesh, a notification SO No.1668(E) dated 20.07.2011 was published in the Gazette of India conferring the powers on respondent No.4/Revenue Divisional Officer, Guntur to perform the functions of the Competent Authority Land Acquisition (CALA) under Section 3 (a) of National Highways Act, 1956 (hereinafter referred to as 'the N.H. Act') in respect of a stretch of land from Km. 0.040 to Km. 16.000 (Vijayawada By-pass section) of NH-5 of Vijayawada - Gundugolanu section. Further, the Ministry of Road, Transport and Highways in exercise of powers conferred under Section 3A (1) of the N.H. Act, gave notice of intention to acquire the lands for forming new by-pass to Vijayawada city in the said stretch of about 16 kms., comprising of 6 villages in Guntur District including Venkatapalem Village of Guntur Division. The said notification under Section 3A (1) of the N.H. Act was published in Gazette of India vide S.O.2665(E) dated 25.11.2011. The substance of the said notification was published in two daily news papers i.e., Sakshi and the Hindu, in Telugu and English, respectively, on 13.01.2012, as required under Section 3A (3) of the N.H. Act.
4. After complying with the procedure under Section 3C (1) of the N.H. Act, a notification under Section 3D (1) of the N.H. Act was published in the Gazette of India vide S.O.2769(E) dated 22.11.2012.
5. Subsequently, public notice under sub-sections (3) and (4) of the Section 3G of the N.H. Act indicating the details of each survey number, occupants, village name etc., was issued in two daily news papers i.e., Andhra Jyothi and the Hindu on 10.01.2013 requiring the interested parties to appear before the CALA on 31.01.2013. Thereafter, CALA/4th respondent passed Award No.12/2013/NH-5 dated 27.12.2013 for an amount of Rs.13,84,28,826/- in respect of lands under acquisition admeasuring 2,41,063 sq.mtrs. in respect of Venkatapalem Village. Subsequently, CALA passed another Award (2nd Award) No.06/2015/NH-5 dated 16.11.2015 for an extent of 9431 sq.mtrs. in respect of Venkatapalem Village for an amount of Rs.96,15,747/-.
6. Challenging the said Awards, the petitioners whose lands are subject matter of acquisition filed W.P.No.18829 of 2019. The details of the extents of land, survey numbers etc., are set out in the statement annexed to the writ petition. Parties to the writ petition exchanged affidavits, contested the matter and the learned Single Judge, formulated the points for determination as follows:
1. Whether the procedure under Sections 3E and 3G of the National Highways Act was followed in passing the 1st and 2nd awards by the 4th respondent?
2. Whether a direction for fresh notification in terms of Act 30 of 2013 or in terms of National Highways Act be issued to acquire the subject lands?
3. To what relief?
7. The projected case of the petitioners' is that pursuant to the Award enquiry in terms of Section 3G (3) of the N.H. Act, and in response to the public notice dated 10.01.2013 of CALA inviting the interested persons/enjoyers to file their claims in respect of the lands in question on 31.01.2013, the petitioners visited the office of the Land Acquisition Officer to submit their objections, but they were informed that a date will be fixed and personal notices fixing the date of hearing would be issued, so that the petitioners can file their objections in person. The authorities have not scrupulously followed the procedure contemplated under the N.H. Act. Had an opportunity been afforded and orders passed on the petitioners' objections, they would have challenged the same. Further, though it appears from the record that the CALA conducted enquiry on 31.01.2013 and recorded the statements from land owners/enjoyers/their representatives, in reality, no such procedure was followed by CALA and the entire record seems to have been built up, as if the Award enquiry under Section 3G (3) had been thoroughly conducted.
8. It is their further case that the procedure for taking possession as provided under Section 3E of the N.H. Act was not followed. The requirement of depositing the compensation in respect of the subject lands with the Competent Authority in terms of Section 3H of the N.H. Act and payment to the beneficiary before taking over the possession has not been complied with. It is also their plea that even if it is assumed that the award is final, since no compensation is paid and possession is with the petitioners, in terms of Section 101 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act, 2013'), since the lands remained unutilized for a period of five years from the date of taking over possession, the same shall be returned to the original owners and that the petitioners are entitled to the benefit under the Act, 2013, which is made applicable to acquisition of land for National Highways w.e.f. 01.01.2015.
9. None of the petitioners were asked to take compensation and no notice is issued to that effect. As the compensation was not paid though the Award was passed as far back as on 27.12.2013, the award is liable to be declared as void ab initio in the light of the application of provisions of the Act, 2013 to the N.H. Act. Since more than 5 years have lapsed from the date of passing of award, the same cannot be given effect to and it is therefore, liable to be declared as null and void. It is pleaded to the effect that the respondents adopted dubious method to project as if the possession was already taken over, with a view to deprive the petitioners, the benefit of exemptions carved out under the Act, 2013. It is claimed that the petitioners are in possession of the subject lands, raised some crops, and that, if at all, the respondents require the lands in question, Land Acquisition Proceedings afresh, have to be initiated, in accordance with Law.
10. Respondent No.3 filed counter-affidavit referring to the issuance of notification under Section 3A (1) of the N.H. Act. It is stated that no petitions raising objections under Section 3C (1) of the N.H. Act have been received by CALA and that Declaration under Section 3D (1) of the N.H. Act was published on 22.11.2012. That in terms of the public notice dated 10.01.2013 under sub-sections (3) and (4) of Section 3G of the N.H. Act, on 31.01.2013 statements of the land owners/enjoyers/representatives were recorded and pattadar passbooks and other relevant documents were verified. After following due procedure, CALA passed an Award dated 27.12.2013 for an amount of Rs.13,84,28,826/- with regard to the acquired lands of an extent of 2,41,063 sq.mtrs., and deposited the said amount in the joint account of CALA and Project Director, NHAI, Vijayawada on 05.06.2014 and an amount of Rs.5,60,37,203/- was disbursed. Another Award dated 16.11.2015 in respect of missing extents of 9,431 sq.mtrs., was passed for an amount of Rs.96,15,747/- and the said amount was deposited on 30.12.2015. It is also averred that after passing of the Award, notices under Section 3E (1) of the N.H. Act were served in person/alternate service and some of the land owners have taken compensation and some of them preferred appeals before the Arbitrator & District Collector, Guntur, seeking enhancement of compensation. It is also stated that some of the petitioners in the writ petition, though did not take compensation, approached Arbitrator & District Collector, Guntur, and their petitions are pending before the said authority. In para 11 of the counter, a plea was taken that the Act, 2013 is not applicable as the lands were acquired under the N.H. Act and Award was passed on 27.12.2013 i.e., prior to commencement of the Act, 2013, which came into force w.e.f. 01.01.2015.
11. Respondent No.4 filed a counter-affidavit, supporting the version of respondent No.3, and further asserted that the lands were handed over to the National Highways Authority (NHAI) on 02.08.2014 after following the process of Section 3E (1) etc; and in turn, NHAI handed over the possession of the land to the concessionaire for formation of road. It is stated that writ petitioners Nos.1,2,3,4,7,8,10,11,12,13,15,16,19,21,23,24,31 and 34 have approached the Arbitrator and District Collector, Guntur, even though they did not take compensation from CALA seeking enhancement of compensation.
12. The petitioners filed separate reply-affidavits to the counter-affidavits. It is pleaded that the petitioners made request dated 08.01.2021 to the PIO to furnish copies of recorded statements given by the land owners/enjoyers to the CALA during the enquiry allegedly conducted on 31.01.2013, as also copies of acknowledgments of notices sent under Section 3E (1) of the N.H. Act. It is denied that the petitioners filed arbitration applications before the Arbitrator and District Collector, Guntur. It is stated that a notice under Rule 15 of the Writ Proceedings Rules was issued on 10.02.2021, requesting the Government Pleader for Land Acquisition to produce the records pertaining to the lands in question, but the same was in vain. It is denied that the lands were handed over to the Project on 02.08.2014, and reiterated that the petitioners have been in peaceful possession and enjoyment of the same.
13. After considering the matter at length and examining the materials on record, the learned Single Judge recorded categorical findings in the following terms:
"66. They also sought to attribute motives in a way to the 4th respondent of not recording the statements of the persons interested or the owners of the land. A mere statement in the affidavit is not sufficient for this purpose. As observed in Kushala Shetty (reported in (2011) 12 SCC 69), when such an attempt is made, material particulars are necessary to show that they were prevented from effectively exercising their right to file their objections. In fact, question of filing objections for the reasons stated supra at the stage when the compensation is being determined by the competent authority under Section 3G(4) cannot arise.
67. One of the contentions of the petitioners is that in view of serious infraction of the procedure, the awards have to be set aside and the respondents 2 to 4 shall be called upon to issue a fresh notification for acquiring these lands since the petitioners principally did not have any objection if their lands are required for public purpose for expansion of national highway. It is also their contention that they are not in any way preventing expansion of this national highway nor objecting to it. In such event, according to the contention of the petitioners, as observed in Competent Authority v. Barangore Jute Factory and others [reported in (2005) 13 Supreme Court Cases 477] if the 1st award cannot stand, it is desirable to direct the respondents to determine the compensation payable from a specific date and from such stage onwards the proceedings can go on thereafter upon affording an opportunity to the petitioners to set forth their claims for determination of compensation. The pertinent observations in the above ruling of the Hon'ble Supreme Court in paras 14 and 15 are thus:
"14........The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action.
15. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the land owners are adequately compensated. Reference may be made to:
(a) Ujjain Vikas Pradhikaran v. Rajkumar Johri and others [1992 (1)SCC 328]
(b) Gauri Shankar Gaur & Ors. v. State of UP & Ors. . [1994 (1) SCC 92]
(c) Haji Saeed Khan & Ors. v. State of UP & Ors. [2001 (9) SCC 513] In that direction the next step is what should be the crucial date in the facts of the present case for determining the quantum of compensation. We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the respondents from the writ petitioners. This date admittedly is 19th February, 2003. We, therefore, direct that compensation payable to the writ petitioners be determined as on 19th February, 2003, the date on which they were deprived of possession of their lands. We do not quash the impugned notification in order not to disturb what has already taken place by way of use of the acquired land for construction of the national highway. We direct that the compensation for the acquired land be determined as on 19th February, 2003 expeditiously and within ten weeks from today and the amount of compensation so determined, be paid to the writ petitioners after adjusting the amount already paid by way of compensation within eight weeks thereafter. The claim of interest on the amount of compensation so determined is to be decided in accordance with law by the appropriate authority. We express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free to exercise the same, if available. The compensation as determined by us under this order along with other benefits, which the respondents give to parties whose lands are acquired under the N.H. Act should be given to the Writ Petitioners along with what has been directed by us in this judgment."
69. On behalf of the respondents 3 and 3 referring to the power of this Court under Article 226 of the Constitution of India to do justice among the parties vis-a-vis public interest reliance is placed on certain observations in Ramniklal N. Bhutta and another v. State of Maharashtra and others [reported in (1997) 1 SCC 134]. In Para 10 of this ruling, the observations are thus:
"10........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 purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in 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 lumpsum 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. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
70. The proposition canvassed for the parties needs to have substratum of facts. Particularly in the context of the contentions and submissions made on behalf of the petitioners, it is more relevant. The stand of the petitioners as seen from the pleadings set out in the affidavit filed in support of this petition is clear and categorical and is very assertive. They did not want any enhancement of compensation nor did they challenge the award in that regard. It is desirable to extract that part of relevant averments in para-10 of the affidavit of the 1st petitioner hereunder (Para-10 is very lengthy covering pages 13,14,15 and 16 of the affidavit of the 1st petitioner):
"10.......... We are not seeking any enhancement of compensation and challenge the award in that regard and as such, we are not approaching any authority constituted under the NH Act or the RFCTLARR Act, 2013....."
71. When the petitioners affirmed positively in such a fashion, the course now suggested as above is inappropriate. When the petitioners did not intend to have such relief, the Court cannot force upon them likewise. Desires and intentions of the petitioners should be respected.
72. Added to it, the specific contention of the respondents 2 to 4, particularly respondent no.4 in the counter affidavit is that the petitioner nos.1,2,3,4,7,8,10,11,12,13,15,16,19,21,23,24,31 and 34 approached the Arbitrator & District Collector, Guntur. It is stoutly denied by the petitioners in the reply affidavit. The contention of the petitioners is also that they made attempts to get at necessary record relating to this arbitral proceedings before District Collector, Guntur, in vain. When the above statements made on behalf of the petitioners through the 1st petitioner that they did not intend to approach the authorities nor seeking any enhancement of compensation, it is another reason, for the course so suggested not to resort to.
73. Added to it, when the initial notification in terms of Section 3A(1) was issued on 25.11.2013 and the entire process in terms of Sections 3A to 3H of the National Highways Act stood completed including passing both the awards on 27.12.2013 and 16.11.2015 respectively, approaching this Court by means of this writ petition on 21.11.2019 smacks of delay. It remained unexplained by the petitioners. Apparently, the petitioners filed this writ petition taking undue advantage of their failure to appear before the 4th respondent competent authority on the appointed date in terms of public notice dated 10.01.2013. Creating a contrived situation as if there is infraction of procedure, they could prevent the ongoing project of national highway for a long time. Their approach by means of this writ petition is highly belated nor is clean. The whole attempt appeared to make out a mountain out of molehill.
74. Therefore, on the material the 1st and 2nd award of the 4th respondent competent authority should be upheld and that there was neither procedural infraction in passing them nor any impropriety. Thus, this point is answered and against the petitioners."
14. Heard Mr. C.V.R. Rudra Prasad, learned counsel for the appellants in W.A.No.344 of 2021 and Mr. D.Satya Siva Darshan, learned counsel for the appellants in W.A.No.369 of 2021. Also heard Mr.P.Veera Reddy, learned Senior Counsel assisted by Mr. S.S.Varma, learned Standing Counsel for National Highways Authority of India appearing for respondent Nos.2 and 3, and Mr. Ponnavolu Sudhakara Reddy, learned Additional Advocate General appearing for respondent No.4 in both the writ appeals.
15. Assailing the judgment of the learned Single Judge, Mr. C.V.R. Rudra Prasad, learned counsel for the appellants in W.A.No.344 of 2021, while strenuously contending, submits that the order under appeal is not sustainable in law. While stating that the petitioners are aggrieved by the statutory infractions by the authorities in adhering to the provisions of the N.H. Act, viz., Section 3G and Section 3E of the N.H. Act, he reiterates the stand taken before the learned Single Judge that appellants/petitioners are not questioning the Section 3A (1) Notification issued under the N.H. Act. He submits that the case of the petitioners revolves around two crucial dates i.e., 10.01.2013, the date of publication of paper notification fixing the date, requiring the land owners holding different extents of lands in different Mandals to attend at Taluk office, wherein a particular village is situated for the enquiry and 31.01.2013, when the enquiry was scheduled. According to the learned counsel, the petitioners went to the office of Land Acquisition Officer/Revenue Divisional Officer at Guntur on 31.01.2013, to submit their objections, but they were informed that a date would be fixed and notices will be issued. However, he submits that no such intimation was given and on the contrary awards were passed. In view of the same, the learned counsel submits that the petitioners could not participate in the enquiry, lost their valuable rights and further that had the CALA/LAO passed orders on submission of objections, the petitioners would have challenged the same, if they are adverse to them. He submits that the alleged enquiry stated to have been conducted and determination of compensation on the basis of said enquiry which ultimately led to passing of the Awards is not sustainable. While stating that the petitioners have no objection for acquisition of land, he submits that since the petitioners have a claim on the compensation and since the same is not decided in accordance with law, the Awards are vitiated. The learned counsel contends that the petitioners are in possession of the lands in question and the case of the respondents that the possession was taken over on 02.08.2014 is absolutely incorrect.
16. Mr. Satya Shiva Darshan, learned counsel appearing for the appellants in W.A.No.369 of 2021(petitioner Nos.32 and 26 in W.P.No.18829 of 2019), while supporting the arguments advanced by Mr. Rudra Prasad, drew the attention of the Court to Page No.178 i.e., the paper notification, dated 10.01.2013 to submit that because of the confusion created, the petitioners/appellants could not attend the enquiry allegedly conducted on 31.01.2013. He further submits that in fact, the enquiry was conducted by Tahsildar instead of the Revenue Divisional Officer and therefore, the same is vitiated.
17. Both the learned counsel submits that the learned Single Judge misconstrued the submissions made on behalf of the writ petitioners and erred in arriving at various conclusions without examining the issues in the correct perspective, more particularly with reference to Section 3E of the N.H.Act as also scheme of Act, 2013, vis-à-vis its applicability to acquisition of lands under the N.H.Act which was given effect to from 01.01.2015 and Guidelines issued by the Government of India. At any rate, it is submitted that mere deposit of the amount would not mean payment of awarded amount and therefore, whole proceedings are vitiated. Reliance, inter alia, on the judgment of the Hon'ble Supreme Court in Indore Development Authority v. Manohar Lal1 etc. was placed and urged that the order under appeal may be set aside, for the other reasons, which are considered, hereinafter at the appropriate stage.
18. Refuting the said contentions, Mr. P. Veera Reddy, learned Senior Counsel appearing for National Highways Authority of India submits that the CALA/Revenue Divisional Officer in order to facilitate the land owners, came to Thulluru and conducted enquiry. He submits that some of the land owners appeared before the CALA/Revenue Divisional Officer and thereafter the Award dated 27.12.2013 was passed, pursuant to which some of the land owners received compensation in the year 2014. He submits that the writ petitioners/appellants having failed to avail the opportunity afforded to them by way of issuing public notice in terms of Section 3G (3) of the N.H. Act with regard to their claims in the lands, filed the writ petition in the year 2019. He submits that as the land was taken for public purpose i.e., for National Highways, everybody knows about the acquisition of land. He submits that after about six years of taking over possession and deposit of money as long as back in the year 2014, the petitioners/appellants started litigation. He submits that some of the land owners who received compensation and some of them who have not received compensation have filed Arbitration Applications before the District Collector, Guntur. He submits that despite the fact of passing of Awards and deposit of amount towards compensation which is well within the knowledge of the petitioners, they have not approached this Court, if they are really aggrieved by the actions of the respondents, immediately on accrual of cause of action, if any, in the year 1 (2020) 8 SCC 129 2013/2014, and the delay on their part is fatal. Making the said submissions, he contends that the arguments advanced by the learned counsel for the petitioners merits no consideration.
19. At this stage, it may be appropriate to refer to the findings of the learned Single Judge in this regard, which reads thus:
35. Public notice in terms of Section 3G(3) was issued and was published in 'the Hindu' English daily and 'Andhrajyothi' Telugu daily (Vernacular). A copy of this notice is a part of the material papers filed along with the writ petition by the petitioners and it is a public notice published in the Hindu on 10.01.2013. The contents of this public notice are that all the persons interested in the lands proposed to be acquired were requested to appear in person or by an agent or by a legal practitioner with original documents and xerox copies of Documents/Pattadar Pass Books/ Title Deeds or any other relevant documents pertaining to their lands and if they have any Structures with the approved plans, Tax Assessments, Tax Receipts before the Competent Authority Land Acquisition and Revenue Divisional Officer, Guntur in the office of the Tahsildar concerned on the dates noted against each village as mentioned below.
36. Distinct dates of enquiry are stated in this public notice in the tabulated form and this tabulated statement is extracted hereunder:
Name of Name of the Name of the Village Name of the Date & Time
the District Mandal Tahsildar for
enquiry
Guntur Mangalagiri 1. Chinakakani Mangalagiri 18.01.2013 11AM
2. Mangalagiri 22.01.2013 11 AM
3. Navuluru 24.01.2013 11 AM
4. Krishnayapalem 29.01.2013 11 AM
Thullur 5. Mandadam 31.01.2013 11AM
6.Venkatapalem 31.01.2013 11 AM
37. The petitioners, therefore, were expected to appear in the office of Tahsildar, Thullur on 31.01.2013 at 11.00 AM since with reference to Venkatapalem village this date was prescribed for their appearance for the purposes as stated above.
38. Issuance of this public notice is admitted and is not in question.
39. The specific case of the petitioners is that on the aboveprescribed date at about 11.00 A.M., they visited the office of the Land Acquisition Officer to file their objections where they were informed that another date would be fixed and that personal notices would be issued upon fixing such date for hearing when they could file their objections in person. It is also the version of the petitioners that nothing of this kind happened.
40. The respondents 2 to 4 have specifically disputed this factual issue on the ground that no details of the same are furnished by the petitioners. In the sense, whom they met, who was the authority or the officer who informed them likewise and if there was any follow up action by them when there was no further response to such affirmation by the office of the Land Acquisition Officer. It is pertinent also to note that it is not the version of the petitioners that they visited the office of the Tahsildar,Thullur on 31.01.2013. It is their specific and categorical version that they visited the office of the Land Acquisition Officer to give their objections on that day. The office of the Land Acquisition Officer viz., the 4th respondent is at Guntur. Thus, neither there is clarity nor the version of the petitioners is that they visited the office of the Tahsildar, Thullur, where they were expected to present their claims or objections to the Competent Authority viz., the 4th respondent on 31.01.2013. Thus, on this factual premise itself, the ground sought to be made out by the petitioners did not stand. Added to it, as rightly contended for the respondents 2 and 3, want of particulars, details and want of follow-up measures if any taken by the petitioners when they did not receive any further notice as alleged, makes this whole claim a great suspect.
41. Further, issuance of personal notice to any of the affected including the individuals who lost their lands for the purpose of proposed acquisition, is not at all contemplated in any of the provisions of Sections 3A to 3C and Section 3G of the National Highways Act. They specifically refer only to public notice to be issued and apparently personal notices are not at all intended, expected, contemplated or directed to be served on the affected persons.
42. When the procedure in terms of the National Highways Act require the Competent Authority to follow such course by taking out a public notice it cannot be expected to deviate. When a statute requires to follow a particular procedure, it shall be followed scrupulously without any deviation and it is a needless strain of the petitioners in this writ petition. Therefore, when Section 3G(3) of the National Highways Act directed only a public notice to be issued, the allegation of the petitioners that they were taken to confidence to issue personal notice for their appearance on a future date, is a far- fetched assumption.
43. Thus, for these reasons the grounds so set up by the petitioners to question the procedure followed and adopted by the 4th respondent in terms of Section 3G(3) of the National Highways Act should be rejected."
20. Before appreciating the contentions of the learned counsel, it may be appropriate to state the purport of the concerned Sections of the N.H.Act which are relevant in the present context, without referring to them in their entirety, for the sake of brevity.
a) Section 3A(1) of the N.H. Act confers power on the Central Government to declare its intention to acquire land, if it is satisfied, that the same is required for public purpose viz., building, maintenance, management or operation of National Highway or part thereof and sub-section (2) and (3) of Section 3A of the N.H.Act provides for issuance of notification in two local news papers, one of which in a vernacular language, by giving the brief description of the land.
b) Section 3C(1) of the N.H.Act contemplates hearing of objections and any person interested in the land, within 21 days from the date of publication of notification as contemplated under Section 3A(1) of the N.H.Act may object to the use of the land for purpose or purposes mentioned. Section 3C(2) of the N.H.Act provides that every such objection under Section 3C(1) shall be in writing to the Competent Authority and after affording an opportunity of hearing to the objectors, either in person or by a legal practitioner and after hearing all such objections and after making further enquiry, the Competent Authority, by an order, either allow or disallow the objections.
c) Section 3D of the N.H.Act contemplates that where no objections under sub- section (1) of Section 3C of the N.H.Act have been made to the Competent Authority within stipulated time or where the Competent Authority disallowed the objections, the Competent Authority shall submit a report to the Central Government and on receipt of the same, the Central Government shall declare by issuing a notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in Section 3A(1) of the N.H.Act.
d) Section 3D (2) of the N.H. Act provides that on publication of declaration under Section 3D (1) of the N.H.Act, the land shall vest absolutely in the Central Government free from all encumbrances. Section 3D (3) of the N.H.Act contemplates consequences for non-publication of the declaration under Section 3D (1) of the N.H.Act.
e) Section 3G of the N.H.Act deals with the determination of amount payable as compensation and sub-sections (3) & (4) of the said Section, which are of immediate relevance, inter alia, contemplates:
a) Issuance of public notice to be published in two local news papers, one of which in a vernacular language, before determining the amount under Section 3G(1) or (2) of the N.H.Act, inviting claims from all persons, interested in the land to be acquired, and
b) Such notice shall give the particulars of the land and require the persons interested in the land :
i) To appear in person or by an agent or legal practitioner referred to in Section 3C (2) of the N.H.Act, before the Competent Authority.
ii) Time and place to state the nature of their respective interests in the land.
21. In the present case, neither there is a challenge nor a plea that Section 3A (1) notification or Section 3D(1) declaration are vitiated by any illegalities or infirmities. Admittedly, no objections were filed in terms of Section 3C (1) of the N.H.Act with regard to use of the land. Under the said circumstances, the intention of the Central Government for the user of lands has been crystallized and the same, therefore, vests with Central Government under Section 3D(2) of the N.H. Act.
22. The core contention advanced on behalf of the petitioners is that they were denied the opportunity to put forth their claims as contemplated, due to the reasons stated by the learned counsel referred to supra. If that be the situation, the petitioners could have immediately invoked the remedies available to them in law, on denial of opportunity. But the petitioners have not opted for such a course of action, for the reasons best known to them. While there is no dispute with regard to issuance of notification requiring the petitioners to put forth their claims before the Competent Authority, it was urged on behalf of the appellants in W.A.No.344 of 2021 that they were denied the opportunity of presenting their claims due to the information given to some of them when they attended the office of the Land Acquisition Officer on 31.01.2013 that another date would be fixed, contrary to the same, altogether a different stand was taken on behalf of the appellants in W.A.No.369 of 2021 urging that a confusion was created as there was no clarity in the paper notification. It was contended that the M.R.O. conducted enquiry, but Revenue Divisional Officer/Land Acquisition Officer passed orders, in gross violation of the principles of natural justice, which was not the projected case in the writ petition instituted by the appellants/petitioners in both the appeals, swearing to a common affidavit. Be that as it may.
23. On a close reading of the Award, it is discernible that as many as 35 to 40 interested persons/ryots attended the enquiry conducted on 31.01.2013. Under such circumstance, the case of the petitioners that they were asked to come on some other day and thereafter, no intimation was given and thereby, the petitioners were deprived of making their claims before CALA, holds no water. Further, it is not the case of the petitioners that they were not aware of passing of the Award. If there are statutory violations, in complying with the provisions of the N.H. Act, it was open to the petitioners to challenge the Award immediately, after passing of the same, either in the year 2013 or when the second Award was passed in the year 2015. However, the delay in approaching this Court in the year 2019 remained unexplained, which is fatal. The petitioners are either not vigilant or filed the writ petition, as an after-thought. Therefore, the plea advanced in this regard that the Award impugned in the writ petition is liable to be set aside on the ground of denial of opportunity, merits no consideration and accordingly the same is rejected.
24. Further, the Legislature, in the opinion of this Court, appears to have consciously not provided the detailed procedure of hearing the claims under Section 3G of the N.H.Act unlike Section 3C of the N.H. Act, in its wisdom, to avoid occasional delays, which would hamper the progress of road works relating to National Highways and diminish hurdles to the planned developmental activities, in different areas and regions for the economic growth of the Country. Section 3G (4) of the N.H.Act contemplates limited purpose of providing opportunity to enable the land owners/interested persons to state nature of their interest in the land under acquisition. Under the said circumstances, the scope of Section 3G of the N.H.Act cannot be enlarged to say that it contemplates a full-fledged enquiry of hearing to the land owners/interested persons akin to Section 5A of the Land Acquisition Act, 1894.
25. Furthermore, the provisions of the N.H. Act provides for detailed mechanism with regard to determination of compensation by recourse to adjudication before the Arbitrator under Section 3G (5) of the N.H. Act, if the land owners are in disagreement with the amount determined. As the provisions of Arbitration and Conciliation Act, 1996 are made applicable, the aggrieved land owner/interested person has further avenue of challenging the Award of the Arbitrator before the Competent Civil Court. Therefore, the rights of the aggrieved parties, in the considered opinion of this Court, are well protected and the contentions of the learned counsel for the petitioners that Section 3G of the N.H. Act visualizes a thorough enquiry by giving due opportunity of hearing to the land owners/interested persons, when the claims are invited from them under Section 3G (3) of the N.H. Act, cannot be accepted.
26. Further, no specific ground is raised in respect of the Award dated 16.11.2015 that it is not sustainable. No explanation is forthcoming as to why no challenge was laid to it till 2019, if at all the petitioners are aggrieved by the same. Here also, it is not the case of the concerned petitioners that they are not aware of passing of the Award. The unexplained delay cuts across the case of the petitioners and the writ petition is hit by laches. In this regard, it is also appropriate to refer to the learned Single Judge's specific findings at the cost of repetition, which reads thus:
"73. Added to it, when the initial notification in terms of Section 3A (1) was issued on 25.11.2013 and the entire process in terms of Section 3A to 3H of the National Highways Act stood completed including passing both the awards on 27.12.2013 and 16.11.2015 respectively, approaching this Court by means of this writ petition on 21.11.2019 smacks of delay. It remained unexplained by the petitioners. Apparently, the petitioners filed this writ petition taking undue advantage of their failure to appear before the 4th respondent competent authority on the appointed date in terms of public notice dated 10.01.2013. Creating a contrived situation as if there is infraction of procedure, they could prevent the ongoing project of national highway for a long time. Their approach by means of this writ petition is highly belated nor is clean. The whole attempt appeared to make out a mountain out of molehill."
27. In State of Madhya Pradesh and Another v. Bhailal Bhai2, a Constitutional Bench of the Hon'ble Supreme Court considered the effect of delay in filing the writ petition under Article 226 of the Constitution of India and held thus:
"17..........It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it.......
.......It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus."
2 AIR 1964 SC 1006 In Municipal Corporation, Greater Bombay v. Industrial Development Investment Co. (P) Ltd.,3 the Hon'ble Supreme Court opined thus:
"29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4 (1) and declaration under Section 6. But it should be exercised by taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226........."
28. Therefore, this Court is in complete agreement with the well considered view taken by the learned Single Judge and accordingly, uphold the findings with regard to Section 3G of the N.H.Act and the contentions of the petitioners are rejected.
29. The next aspect that falls for consideration is :
Whether the Award is liable to be set aside in view of the alleged statutory infraction of Section 3E of the N.H. Act?
30. Both the learned counsel for the appellants advanced elaborate arguments contending that the petitioners are in possession of the lands in question and denied that the possession was handed over to NHAI on 02.08.2014.
31. Referring to Section 3E of the N.H. Act, Mr. C.V.Rudra Prasad strenuously submitted that as per the respondents, the compensation was 3 (1996) 11 SCC 501 deposited in the joint account of CALA on 05.06.2014 and whereas the documents filed by the learned Additional Advocate General i.e., notices are dated 04.06.2014 which means that even prior to deposit of the amount, notices were issued contrary to the purport of Section 3E of the N.H. Act. He submits that only on depositing the amounts, process has to be started and steps for taking possession can be initiated. He submits that despite specific requests to the concerned authorities and a notice dated 10.02.2021 as provided under Rule 15 of the Writ Proceedings Rules addressed to the learned Government Pleader for Land Acquisition calling upon for production of records/ documents pertaining to the Award enquiry dated 31.01.2013, the same were not furnished, but for the first time filed before this appellate Court. He vehemently contends that it supports the petitioner's specific case that the documents are cooked up to portray as if everything is above board. He also points out the discrepancies in the said notices and submits that no such notices, in fact, were served on the petitioners. The learned counsel categorically states the plea of the respondents that some of the petitioners have approached the Arbitrator and District Collector, Guntur, seeking enhancement of compensation is not correct.
32. Mr. Siva Darshan, learned counsel for the appellants in W.A.No.369 of 2021 vociferously contended that the findings recorded by the learned Single Judge to the effect that once the land is vested in the Central Government on publication of declaration as contemplated under Section 3D (2) of the N.H. Act, taking over of possession is a mere formality is not correct or tenable. He submits that vesting of lands in terms of Section 3D of the N.H.Act would not absolve the authorities from adhering to the statutory prescription as envisaged in Section 3E of the N.H. Act. In elaboration, he states that as per Section 3 E of the N.H. Act, deposit of amount as determined by the Competent Authority under Section 3G of the N.H. Act is sina qua-non, before issuance of notice in writing to the interested persons in the land, directing the delivery of possession within 60 days from the service of notice. He also submits that no such notices were ever issued to the petitioners and no amount has been deposited, which is a pre-requisite before seeking delivery of possession. He further states that compensation, according to the respondents, was deposited on 05.06.2014 but the alleged notices, filed for the first time in the present appeals, bearing date 04.06.2014 were issued even prior to the deposit of the amount. He submits that possession, if at all, can be taken only after 60 days from the date of deposit, but in the present case, it was done within 60 days from the date of deposit. He also submits that if there is any resistance by the land owners/interested persons, the procedure contemplated under Section 3E (2) of the N.H. Act has to be invoked. However, no recourse to such a procedure was taken and the petitioners continued to be in possession of the property. While stating that even as per the alleged notices, it is clear that some of the owners have not even been served with the notices, in a manner prescribed/established procedure and as required under law, he submits that mere affixture of notice to a pole put up on the land, is neither tenable nor valid in the eye of law. Making the said submissions, he states that since the respondents failed to comply with the statutory prescriptions/requirements, the Award dated 27.12.2013 is vitiated and liable to be set aside. He also drew the attention of this Court to the notices stated to have been issued to the interested persons/ryots and contended to the effect, that the same cannot be countenanced, as they were ex-facie, fraught with several discrepancies. He submits that on the basis of said defective notices, which according to the petitioners, were not even served/received, the respondents cannot be allowed to take shelter of and contend that the same are in accordance with law, and therefore came into valid, effective and legal possession of the subject matter lands. He further submits that as the respondents have not adhered to the procedure, the whole proceedings, including the Award are vitiated.
33. Resisting the said submissions, Mr. P. Sudhakar Reddy, learned Additional Advocate General emphatically contended that the allegation that the notices issued under Section 3E of the N.H.Act have been cooked up is baseless and absolutely far from truth. While drawing the attention of this Court, to the notices issued to the various land owners under Section 3 E and Section 3 H of the N.H.Act, he contended that on receipt of the same and receipt of compensation, some of them filed arbitration applications and furnished the details, which according to him are pending consideration before the Arbitrator & District Collector, Guntur. Stating that there are no defects in effecting service of notices, he would submit that though initially it was contended that no notices were issued under Section 3E of the N.H.Act, the petitioners, after filing of the same, changed their version to the effect that no service was effected on them and therefore the same cannot be appreciated. He also pleaded that there is no justification on the part of the petitioners in holding the road works of a National Highway on untenable pleas and accordingly urges that the submissions made on behalf of the appellants may be rejected.
34. Before adverting to the aforesaid contentions, it may be appropriate to refer to the expression of the Hon'ble Supreme Court in Indore Development Authority's case, wherein dealing with the aspect of taking over possession under Land Acquisition Act, 1894, the Apex Court opined thus :
" 247. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and draws up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.
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258. Thus, it is apparent that vesting is with possession and the statute has provided Under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified Under Section 16, takes place after various steps, such as, notification Under Section 4, declaration Under Section 6, notice Under Section 9, award Under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner.
259. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same. In Municipal Corporation of Greater Bombay and Ors. v. Hindustan Petroleum Corporation and Anr. [reported in (2001) 8 SCC 143] , this Court discussed the concept of vesting in the context of Section 220 of the Bombay Municipal Corporation Act. It has referred to various decisions including that of Richardson v. Robertson [reported in (1862) 6 LT 75] thus: (SCC pp.147 & 149, paras 8 & 15) "8. It is no doubt true that Section 220 provides that any drain which vests in the Corporation is a municipal drain and shall be under the control of the Corporation. In this context, the question arises as to what meaning is required to assign to the word "vest" occurring in Section 220 of the Act? In Richardson v. Robertson, LT p. 78, it was observed by Lord Cranworth as under: (LT p. 78) The word "vest" is a word, at least, of ambiguous import. Prima facie "vesting" in possession is the more natural meaning. The expressions "investiture" - "clothing" -- and whatever else be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right. But I am willing to accede to the argument that was pressed at the Bar, that by long usage "vesting" originally means the having obtained an absolute and indefeasible right, as contradistinguished from the not having so obtained it. But it cannot be disputed that the word "vesting" may mean, and often does mean, that which is its primary etymological signification, namely, vesting in possession.
15. We are, therefore, of the view that the word "vest" means vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act."
260. The word "vest" has to be construed in the context in which it is used in a particular provision of the Act. Vesting is absolute and free from all encumbrances that includes possession. Once there is vesting of land, once possession has been taken, Section 24(2) does not contemplate divesting of the property from the State as mentioned above."
35. As stated earlier, in the present case, the publication of the declaration under Section 3D(1) of the N.H.Act was made on 22.11.2012. Section 3D (2) of the N.H. Act, specifically envisages that on such publication of declaration, the land shall "vest" absolutely with the Central Government, free from all encumbrances. Thus, in the light of the expression of the Hon'ble Supreme Court and the statutory prescription, the subject lands vests absolutely in the Central Government. If such be the legal position, the possession, even assuming to be with the petitioners, which is claimed contra by the respondents/NHAI, is of no legal consequence, in the attending facts and circumstances of the case.
36. In this context, the learned Single Judge dealt with the points extensively and the conclusions which are relevant in the present context, may be reproduced hereunder:
"53. In terms thereof, subject to declaration issued under Section 3D, upon vesting the land in terms of Section 3D (2) of the National Highways Act and determination of the amount of compensation under Section 3(G) of the said Act, on its deposit in terms of Section 3H (1) thereunder, the competent authority may by notice direct the person interested or the affected by the proposed acquisition, to surrender or deliver possession of the land to the competent authority or its duly authorised person. The terms of Section 3E are imperative in the same that the persons liable to surrender the land, are under an obligation to do so.
54. By that stage, the land sought to be acquired is already vested in the Central Government by virtue of the declaration under Section 3D of the N.H. Act and for which purpose a notification was already issued. Public notice referred to above whereby the petitioners were called upon to appear before the competent authority on 31.01.2013 clearly referred to vesting of the lands of the petitioners in the Central Government. It is a clear declaration indicative of the fact that the petitioners stood divested of their right, title and interest to the lands under acquisition. Mere formality of taking over possession of the lands remained, at the stage when Section 3E came into play. Specific claim of the 4th respondent is that the possession was taken over on 02.08.2014. It is denied in the reply affidavit by the petitioners on the ground that it is not the version of the 3rd respondent in its counter affidavit while asserting that they have been in actual physical and effective possession of these lands.
55. The petitioners did not produce any material in the nature of revenue records to establish this fact of their continuous possession and enjoyment of these lands though the declaration was published in the Gazette under Section 3D(2) on 22.11.2012, a copy of which is also a part of the material papers produced by the petitioners. A reference to it is made in the paper publication/public notice in 'the Hindu' on 10.01.2013. Thus, by that date of this declaration, the petitioners did not have any right or title or interest. Nor there is material produced by them to show that they have been in continuous possession and enjoyment of these lands since then. The contention of the petitioners is that the adjudication is not adversarial in nature in this writ petition and that their version requires consideration, cannot be accepted."
37. Further, as seen from the judgment of the learned Single Judge, the contentions with regard to issuance of notice under Rule 15 of the Writ Proceedings Rules, calling upon the respondents to produce the material with regard to notices stated to have been issued under Section 3E of the N.H. Act etc., and non-production of the same despite the said notice etc., were dealt with and conclusions with reference to the same were recorded. The learned Single Judge, looking to the facts and circumstances felt that the material as sought for by the writ petitioners is not required as the Awards themselves testifies and vouchsafe that the persons who are interested in the subject lands or owners of the lands attended before the CALA/Revenue Divisional Officer, gave statements and he recorded them. It is contextual to refer to findings of the learned Single Judge which are in the following terms:
"61. Though the awards reflect that many among the land users, enjoyers or interested did not attend the enquiry, the attendance apparently was sizeable. These facts and circumstances also demonstrate that there was indeed recording of the statements of the individuals who appeared before the 4th respondent competent authority on 31.01.2013 and those instances were considered for compensation. This is another instance as a striking feature to affect the claim of the petitioners that there was no such enquiry. It further goes to demonstrate that the competent authority 4th respondent followed the procedure established bylaw and in terms of the National Highways Act.
62. There is specific reference to disbursement of Rs.5,60,37,203/- in the counter affidavit of the 3rd respondent out of the award amount of Rs.13,84,28,826/- under the 1st award. A sizeable amount out of it was disbursed apparently in terms of section 3H of the National Highways Act. Thus, this disbursement is indicative of attendance of those interested or land users or enjoyers of the lands whose lands were acquired in this process, that came forward to receive the compensation so awarded. It further gives out that these attendees had notice in terms of Section 3E(1) of the Act.
63. When the material is so explicit and is supporting the stand of the respondents 2 to 4 that they did follow the procedure under the National Highways Act, the attempt of the petitioners to seek records either under the Right to Information Act or calling upon the learned Government Pleader to produce the records for the purpose of verificationby this Court, is apparently unnecessary.
64. Thus, this ground of want of notice in terms of Section 3E(1) for surrender of lands to the petitioners as claimed by them has no basis. Continuous possession of these lands claimed by the petitioners is not substantiated nor established. In these circumstances, the contention of the respondents that these lands stood vested, were handed over to the respondents 2 and 3 on 02.08.2014 by the 4th respondent Competent Authority requires acceptance, which in turn according to them was handed over to the contractor, who is building or working on this segment of this national highway."
38. This Court finds no good ground to disagree with the reasoning of the learned Single Judge, which is sound and well considered.
39. Be that as it may, it is the contention of the learned counsel for the petitioners that the materials/notices were cooked up and the very fact that they were not produced during the course of proceedings before the learned Single Judge, would make it clear that the same are pressed into service to justify the action on the part of the respondents and to portray as though the possession was taken by issuing due notices.
40. The said submission of the learned counsel for the petitioners merits no acceptance and there is no valid reason to believe/accept the contention that the materials are cooked up. Though this Court is not required to make a roving enquiry, to test the argument of the learned counsel, it is deemed appropriate to verify some of the notices. As contended by the learned counsel for the petitioners, it is evident from the notices that an attempt was made to serve the notices, but as the land owners/interested persons rejected to receive them, the same were put up in the land by affixing to a pole.
41. While some of the notices do not bear the signatures acknowledging the notices, very few contain the signatures in acknowledgment of receipt of notices. Though the contentions of the learned counsel for the petitioners appears to be valid in the first blush, in the light of the fact that some of these notices were acknowledged by land owners would lead to a definite conclusion that the materials/notices were not cooked up to justify the acts of the respondents in their endeavour to project that the procedure contemplated under Section 3E of the N.H. Act is complied with.
42. Further, one of the arguments advanced by the learned counsel for the petitioners is that the notices were issued even before deposit of the amount etc., also merits no consideration. In the present case, there cannot be any dispute with regard to vestiture/vesting of subject matter lands in the Central Government, consequent upon the publication of declaration under Section 3D (2) of the N.H. Act. It may also be pertinent to state here that a reading of Section 3H & Section 3E of the N.H.Act either independently or conjointly categorically provides that the amount as determined under Section 3G of the N.H.Act has to be deposited by the Central Government with the Competent Authority, before taking possession. Admittedly, the amount of compensation was determined by the Competent Authority under Section 3G of the N.H.Act and the same was deposited under Section 3H (1) of the N.H. Act, though the petitioners feign ignorance of deposit of the amount, on the pretext that they were not intimated about such deposit. Further, Section 3E of the N.H.Act does not contemplate taking possession of the land only on expiry of 60 days from the date of deposit.
43. Be that as it may. With regard to issuance of notices in respect of the land vested with the Central Government, directing the owners as well as any other person who may be in possession of the land to surrender or deliver possession thereof to the Competent Authority, the expression 'may' as used in Section 3E of the N.H.Act would indicate that the same is not mandatory. In the present case, as noticed supra, notices were issued to the land owners/persons interested and even if there are any discrepancies with regard to issuance of notices or method of effecting service, the same cannot be treated as an illegality, but a procedural irregularity which would not vitiate the whole proceedings, since the land is already vested with the Government. Furthermore, consequent upon the vesting of the land in the Central Government under Section 3D (2) of the N.H. Act, on publication of declaration free from all encumbrances, it alone, has the right to deal with the same and no others, including the petitioners who lost their title, have any right over the same, muchless, possession. It is trite law, that in the absence of a valid right and infringement of the same, a party would not be entitled to grant of discretionary relief by this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India. In the present case, the petitioners have no valid right to continue in possession of the lands in question, even it is assumed, that the petitioners remained in possession, for whatever the reasons might be. Even though the petitioners disputed the handing over of possession on 02.08.2014, this Court need not dilate on the said aspect, inasmuch as the disputed questions of fact cannot be gone into by the Writ Court. Suffice to state, that as observed by the Hon'ble Supreme Court in Indore Development Authority's case referred to supra, once the land absolutely vests in the State, any re-entry in possession or retaining the possession, is wholly illegal and trespassers' possession inures for the benefit of the owner and even in the case of open land, possession is deemed to be that with the owner. The relevant paragraph reads thus:
"274. It was submitted on behalf of landowners that Under Section 24 the expression used is not possession but physical possession. In our opinion, under the 1894 Act when possession is taken after award is passed under Section 16 or under Section 17 before the passing of the award, land absolutely vests in the State on drawing of panchanama of taking possession, which is the mode of taking possession. Thereafter, any re-entry in possession or retaining the possession is wholly illegal and trespasser's possession inures for the benefit of the owner and even in the case of open land, possession is deemed to be that of the owner. When the land is vacant and is lying open, it is presumed to be that of the owner by this Court as held in Kashi Bai v. Sudha Rani Ghose [reported in AIR 1958 SC 434]. Mere re-entry on government land once it is acquired and vests absolutely in the State (under the 1894 Act) does not confer any right to it and Section 24(2) does not have the effect of divesting the land once it vests in the State."
44. In the light of the expression of the Hon'ble Supreme Court, and for the reasons recorded herein before, the contentions advanced by the learned counsel for the petitioners that the acquisition proceedings in respect of lands of the petitioners are vitiated by reason of infraction of provisions of Section 3E of the N.H.Act are rejected.
45. Applicability of the Act, 2013 to the acquisition of lands under the provisions of the N.H.Act, 1956:-
The other core contention advanced by the learned counsel for the petitioners relates to the applicability of the Act, 2013 visa-a-vis the acquisition proceedings in respect of the lands in question, initiated under the provisions of the N.H. Act and that the learned Single Judge failed to consider the same, while adjudicating the matter. This Court finds from the observations made by the learned Single Judge in the order under appeal, that the said aspect appears to have not been gone into, as the counsel confined the arguments only with regard to the alleged infractions under Sections 3E and 3G of the N.H. Act. No such specific ground to that effect is raised in W.A.No.344 of 2021. However, since a ground is taken in W.A.No.369 of 2021 which raises a question of law, this Court, deems it appropriate to deal with the submissions made in this regard by the learned counsel for the petitioners/appellants.
46. It is the contention of Mr. Siva Darshan that the provisions of the Act, 2013 are made applicable to the acquisitions under the N.H. Act w.e.f. 01.01.2015 and even as per the Circular instructions issued by the NHAI, the respondents are required to apply the provisions of the Act, 2013 for the purpose of determining the compensation. He contends that as the petitioners have been in possession of the lands in question and not received the compensation, the whole proceedings initiated under the N.H. Act are vitiated.
47. Elaborating the same, the learned counsel submits that even as per the admitted case of the respondents, major portion of the compensation was not disbursed to the land owners as on 31.12.2014. He states that out of Rs.13 crores and odd, as determined by the 4th respondent, only Rs.5 crores and odd was paid and therefore, the compensation is required to be determined, afresh, by virtue of the provisions of the Act, 2013. Placing strong reliance on the judgment of the Hon'ble Supreme Court in Indore Development Authority's case referred supra, the learned counsel would urge, even assuming, that the respondents had "deposited" the compensation amount, which fact was not intimated to the petitioners, it cannot be construed that the same has been "paid." He also submits that the petitioners are entitled to redetermination of compensation in terms of the Act, 2013, which is made applicable to the N.H.Act, as a legal right accrued to them and the subsequent circular issued by the Government of India dated 28.12.2017, makes the position more clear. He submits that if the compensation is not paid, the matters are required to be reopened. He also points out that even in the circular issued by the Government, two expressions 'paid' and 'deposited' are used.
48. To buttress his submissions, the learned counsel has drawn the attention of this Court to paragraph No.217 of Indore Development Authority's case. He also submits that, a learned Single Judge of High Court of Kerala in similar circumstances, in Mani Rao v. Union of India4 directed redetermination of compensation as the majority of the compensation is not paid. He further contends that for more than 5 years, no action has been taken by the respondents and therefore, the whole proceedings are vitiated for the said reason. He also submits that the appellants/petitioners are always vigilant and filed writ petitions. According to the learned counsel, W.P.No.9306 of 2013 was filed raising similar aspects. The learned counsel also cited the judgments of Hon'ble Supreme Court and other High Courts in Gullapalli Nageswara Rao v. APSRTC5, Special Deputy Collector, Singareni Collieries Co. Ltd., Godavarikhani v. Dasari Ramulu6, Ridh Karan Rekecha v. Union of India7, C.C. Alavi Hazi v. Palapetty Muhammed8, Nerajala Nageswara Rao v. Union of India9 (Single Bench) and Vinaya Kumar v. The State of Jharkand & 4 2020 SCC Online Ker 16255 5 AIR 1959 SCC 308 6 2000 SCC Online A.P., 88 7 2004 SCC Online, Cal 232 8 (2007) 6 SCC 555 9 2017 SCC Online Hyd, 250 Others10 (Single Bench), but not referred to Competent Authority v. Berangur Jute Factory11 and Dano Vaccines & Biological(P) Ltd., v. Government of India12, though filed along with the compilation. Resting his arguments, the learned counsel ultimately submits that as the compensation has not been paid and the petitioners are in possession of the subject lands, they shall be paid compensation by acquiring the lands, applying the provisions of the Act, 2013, if the lands in question are required by the respondents.
49. Mr. P.Veera Reddy, learned Senior Counsel appearing for respondent Nos.2 and 3 resisting the said contentions, submits that as per the Section 3J of the N.H. Act, nothing in the Land Acquisition Act shall apply to an acquisition under the N.H. Act. However, referring to Section 105 of the Act, 2013, he submits that by virtue of the said Section, the provisions of the Act, 2013 are made applicable to a limited extent, to some of the enactments enumerated in the Fourth Schedule of the Act, 2013. In elaboration, he submits that what is contemplated under Section 105 (3) of the Act, 2013 is determination of compensation, in accordance with the First Schedule, Rehabilitation and Resettlement as specified in Second and Third Schedules to the benefit of affected families, which is made applicable to land acquisition under the enactments including the N.H. Act which finds place in Fourth Schedule of the Act, 2013.
50. The learned counsel submits that the notification relied on by the learned counsel for the appellants dated 28.08.2015 which was given effect from 01.01.2015 is nothing but the legal position envisaged in Section 10 MANU/JH/1649/2017 11 (2005) 13 SCC 477 12 2012 SCC Online A.P., 793 105(3) of the N.H. Act. He contends that basing on the said notification, it cannot be contended that it should be made applicable because majority of the appellants have not taken compensation. Such a proposition deserves no acceptance as the benefit of new legislation cannot be made applicable to the acquisition proceedings and the consequential Award thereto, which was passed in the year 2013. The important factor in the present case is that as on the date of passing of Award, the new Act did not come into existence at all. He further submits that Award was passed and the amount was deposited in terms of the Section 3H of the N.H. Act, but however, the petitioners did not come forward to take the money. Therefore, the same cannot be put against the respondents. He also contends that except some land owners of Venkatapalem village, land owners of all other villages whose lands are subject matter of acquisition took compensation. He submits that it is only an after thought of the petitioners to make a claim for higher compensation and states that whatever points that were urged before the learned Single Judge on behalf of the petitioners were negatived by giving cogent reasons. In view of the same, the order of the learned Single Judge does not warrant any interference, he emphasizes.
51. Mr. P.Sudhakar Reddy, learned Additional Advocate General, supported the contentions advanced by the learned Senior Counsel for the respondent Nos.2 and 3 and submits that by virtue of the orders granting status quo in the matter, the road works relating to the National Highway which is of great public importance has come to a standstill and thereby causing great traffic congestions in the city of Vijayawada. He submits that, in fact, the learned Single Judge has examined the matter in great detail, recorded elaborate reasons and there are no merits in the appeals. Making the said submissions, the learned Additional Advocate General urges for dismissal of the writ appeals.
52. Apropos the well articulated contentions of the learned counsel for the petitioners regarding the applicability of the Act, 2013 to the N.H. Act and the impact of the same, in respect of acquisition proceedings in the present case, it would be apt to reproduce the relevant provisions and the guidelines that needs consideration:
105. Provisions of this Act not to apply in certain cases or to apply with certain modifications:-
(1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule .
(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation of dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament.
53. It is discernible from the above extracted provisions of law that subject to sub-section (3) of Section 105, the provisions of Act 30 of 2013, shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule of Act 30 of 2013. Further, as seen from S.O.2368(E), dated 28.8.2015, the Central Government in exercise of its powers under Section 105(3) read with Section 113 of the Act 30 of 2013 issued the Notification, the relevant portion of which reads as follows:
"1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.
(2) It shall come into force with effect from the 1st day of September, 2015.
2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act."
54. Thus, by virtue of the said Notification, the provisions of Act 30 of 2013 relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, which are beneficial to the affected families alone are made applicable to the cases of land acquisition under the enactments specified in the Fourth Schedule.
55. The above position is further clarified by the comprehensive guidelines issued by the Government of India, Ministry of Road Transport & Highways, dated 28.12.2017. The relevant portion of which reads thus:
4. Applicability of the 'RFCTLARR Act 2013' to the enactments mentionedin the Fourth Schedule of the Act ibid:
(i) The 'RFCTLARR Act 2013' came into force with effect from 01. 01. 2014. Section 105 of the Act deals with the subject of applicability of provisions of the RFCTLARR Act, 2013 to the related statutes enumerated in the Fourth Schedule. Provisions of Section 105 (3) read as under:
"(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be."
(ii) The Central Government came out with an Ordinance (No. 9 of 2014) dated 31st December, 2014, entailing an amendment to, inter-alia, Section 105 vide Clause 10 of the Ordinance, substituting sub-section (3) of Section 105 and omitted Sub· section (4) of Section 105. The substituted sub-Section (3) is reproduced below:
"(3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January 2015."
(iii) The provisions of Ordinance No. 9 of 2014 were continued further vide Ordinance No. 4 of 2015 dated 03.04.2015 and vide Second Ordinance dated 30.05.2015 (No.5 of 2015) which was valid up to 31 st August, 2015.
4.2 Subsequently, the Department of Land Resources, Ministry of Rural Development, Government of India, issued The RFCTLARR (Removal of Difficulties) Order, 2015 vide Notification dated 28th August, 2015. The said Order is reproduced below:
"(1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015. (2) It shall come into force with effect from the 1st day of September, 2015. (3) The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act."
4. 3 It is clear from a reading of the above that requisite action in compliance of Section 105(3) was taken within one year's time with the promulgation of Ordinance No. 9 of 2014 dated 31.1 2. 2014. This position continued with the issuance of two Ordinances in 2015, which was thereafter followed by the 'Removal of Difficulties Order" without any break in time. As such, operation of the provisions of RFCTLARR Act 2013, which came into effect from 01.01.2014, has been given effect in respect of the enactments specified in the Fourth Schedule (including the NH Act, 1956) with effect from 01.01.2015, in compliance of sub-section (3) of Section 105 of the RFCTLARR Act, 2013.
4.4 Following the notification of the aforesaid Ordinances, the Ministry of Road Transport & Highways issued a letter dated 29.04.2015 whereby the select provisions of RFCTLARR Act, 2013 were made applicable to the NH Act, 1956 with effect from 01.01.2015. A conjoint reading of the aforesaid shows that the Ordinance (Amendment) remained in force till 31" August 2015. 'Removal of Difficulties Order' was issued by the Department of Land Resources on 28th August 2015, which took effect from 01.09.2015. However, since the date of application of the selected relevant provisions of the RFCTLARR Act, 2013 to the NH Act, 1956 was 01.01.2015 in terms of the Ordinance (Amendment) No. 9 of 2014, it remains an unambiguous and accepted position that the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule have been made applicable to all cases of land acquisition under the NH Act, 1956, i.e. the enactment specified at Sr. No. 7 in the Fourth Schedule to the RFCTLARR Act, with effect from O 1 .01.2015.
4.5 Applicability of Section 24 of the RFCTLARR Act 2013 to the NH Act, 1956.
(i) MoRT&H had issued instructions vide OM bearing No. 110 11/ 3 0/2 0 15 -
L A dated 13th January 2016 clarifying that Section 24 of the RFCTLARR Act, 2013 was applicable to the NH Act, 1956. However, the issue as to whether Section 24 of the RFCTLARR Act, 2013 is applicable to the NH Act, 1956 has been under consideration and revisited in consultation with the Ld. Attorney General, who has observed as under:
"A reading of Section 24 makes it abundantly clear that the provision is applicable only to acquisitions that have been undertaken under the Land Acquisition Act, 1894, in as much as the legislative intent can be ascertained from the specific mention of the 'Land Acquisition Act, 1894'. Further, Section 105(1) of the RFCTLARR Act 2013 specifically excludes the application of any Section of the RFCTLARR Act 2013 to the Acts mentioned in the Fourth Schedule. The only exception to Section 105(1) is Section 105(3), which makes only the First, Second and Third Schedule applicable to the Fourth Schedule Acts."
(ii) As such, it is now clear that Section 24 of the RFCTLARR Act, 2013 is not applicable to the acquisitions under the NH Act, 1956.
4.6 Date of determination of market value of land
(i) Another related but important question is regarding the date on which the market value of land is to be determined in cases where land acquisition proceedings had been initiated under the NH Act, 1956 and were at different stages as on 31. 12.2014. While there is no ambiguity regarding land acquisition proceedings initiated on or after 01.01.2015, this question assumes significance in view of the financial implications in respect of cases where the process of acquisition was at different stages as on 01.01.2015.
(ii) Section 26 of the RFCTLARR Act stipulates that "the date for determination of market value shall be the date on which the notification has been issued under Section 11 (corresponding to Section 3 A of the NH Act)". Same was the position under the 1894 Act. This is further fortified from the provisions contained in Section 69(2) of the RFCTLARR Act. As such, it is clarified that the relevant date of determination of market value of land is the date on which notification under Section 3 A of the National Highways Act, 1956 is published.
(iii) By now, it is also a settled proposition that the First, Second and Third Schedule of the RFCTLARR Act, 2013 shall be applicable to the NH Act , 1956 with effect from 01.01.2015. As such, the following is clarified:
(a) All cases of Land acquisition where the Awards had not been announced under Section 3G of the NH Act till 31.12.2014 or where such awards had been announced but compensation had not been paid in respect of majority of the land holdings under acquisition as on 31.12.2014, the compensation would be payable in accordance with the First Schedule of the RFCTLARR Act, 2013.
(b) In cases, where the land acquisition process was initiated and award of compensation under Section 3G had also been announced before 01.01.2015 but the full amount of Award had not been deposited by the acquiring agency with the CALA, the compensation amount would be liable to be determined in accordance with the First Schedule w.e.f.
01.01.2015;
(c) In cases, where the process of acquisition of land stood completed (i.e. Award under Section 3G announced by CALA, amount deposited by the acquiring agency with the CALA, and compensation paid to the landowners in respect of majority of the land under acquisition) as on or before 31.12.2014 , the process would be deemed to have been completed and settled. Such cases would not be re-opened.
56. A reading of the above guidelines, more particularly Clause 4.5 goes to show that Section 24 of the Act, 2013 is not applicable to the N.H. Act, which is otherwise also not applicable in view of the Section 105 (1) of the Act, 2013 and the only exception is, as carved out in Section 105 of the Act, 2013. The Hon'ble Supreme Court in the context of interpreting Section 24 of the Act, 2013, which deals with lapsing of land acquisition process under the Land Acquisition Act, 1894 in Indore Development Authority's case had the occasion to consider with the expression "paid" as enumerated under Section 24 (2) of the Act, 2013. The Hon'ble Supreme Court at Para No.217 held as follows:
"217. Two different expressions have been used in Section 24(2). The expression "paid" has been used in Section 24(2) and whereas in the proviso "deposited" has been used. "Paid" cannot include "deposit", or else Parliament would have used different expressions in the main sub- section and its proviso, if the meaning were to be the same. The Court cannot add or subtract any word in the statute and has to give plain and literal meaning and when compensation has not been paid Under Section 24(2), it cannot mean compensation has not been deposited as used in the proviso. While interpreting the statutory provisions, addition or subtraction in the legislation is not permissible. It is not open to the court to either add or subtract a word. There cannot be any departure from the words of law, as observed in legal maxim "A Verbis Legis Non Est.
Recedendum". In Principles of Statutory Interpretation (14th Edition) by Justice G.P. Singh, plethora of decisions have been referred. There is a conscious omission of the word "deposit" in Section 24(2), which has been used in the proviso. Parliament cannot be said to have used the different words carrying the same meaning in the same provision, whereas words "paid" and "deposited" carry a totally different meaning. Payment is actually made to the landowner and deposit is made in the court, that is not the payment made to the landowner. It may be discharge of liability of payment of interest and not more than that. Applying the Rule of literal construction also natural, ordinary and popular meaning of the words "paid" and "deposited" do not carry the same meaning; the natural and grammatical meaning has to be given to them........."
57. However, the acquisition in the present case is made under the provisions of the N.H. Act which is a special enactment, with a self- contained code. Section 3H of the N.H. Act, specifically deals with the deposit and payment of amount in the following terms:
3H. Deposit and payment of amount.--(1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.
(2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.........
58. Though similar expression as contained in Section 24 (2) of the Act, 2013 viz. "paid" is found in Section 3G of the N.H. Act, it may not be given similar contextual meaning as regards Section 24 (2) of the Act, 2013, which provides for lapsing of Award, in the event of compensation amount not being paid. No such provision is incorporated in the N.H.Act providing for lapsing of Award in the event of amount/compensation not being paid. Be that as it may, in the present case, the petitioners are questioning the very determination of amount payable as compensation, therefore, making the payment or the compensation amount being 'paid' to attract the interpretation as made by the Hon'ble Supreme Court in the case of Indore Development Authority (referred supra), in the opinion of this Court, may not arise. The question of the amount being 'paid' would arise, in the event, the payee is willing to accept the same. In the present case, as mentioned earlier, the amount of compensation determined by the 4th respondent/CALA was received by some of the land owners in respect of the same village, but the petitioners chose not to receive the same on their own volition, for whatever the reason might be, though according to them, no intimation was given to them to receive the payment. Under the said circumstances, the contention of the petitioners that the compensation amount is not 'paid' or majority land owners have not received compensation and therefore, they are entitled to the compensation payable in terms of First Schedule of the Act, 2013, as provided under Clause 4.6 (iii) (a) of the guidelines dated 28.12.2017 also deserves no appreciation. In view of the above conclusions, the contentions of the learned counsel for the petitioners in this regard are rejected.
59. The other contention that since more than five years have elapsed from the date of passing of the Award, the land acquisition proceedings are lapsed, cannot be accepted, as no such stipulation is provided in the N.H. Act, unlike Section 24 of the Act, 2013. The other contention that the petitioners are vigilant and approached this Court at the appropriate time cannot be appreciated for the reasons already recorded supra. The petitioners cannot be allowed to take advantage of their omissions and commissions and seek redetermination of the compensation, by virtue of the subsequent events or guidelines. The entire attempt of the petitioners appears to be to seek compensation that is advantageous to them under the guise of procedural infractions, which were found to be not correct as per the findings recorded above. Therefore, the contentions urged by the learned counsel for the petitioners/appellants are rejected.
60. In C.C.Alavi Hazi's case referred to supra, the Hon'ble Supreme Court was dealing with the mandatory requirement of issuance of notice in terms of Section 138 proviso (b) & (c) of the Negotiable Instruments Act and what would amount to service of notice. In the judgment of the Full Bench of the erstwhile High Court of Andhra Pradesh in Special Deputy Collector, Singaranei Collieries Co. Ltd.'s case referred to supra, the question raised was whether a notice from the Court in the proceedings under Section 30 could be equated with the notice of the Collector under Section 18(2)(b) of the Land Acquisition Act, 1894. Referring to para No.34, Mr. Siva Darshan would submit that burden of proving the service of notices is on the State. While there is no dispute with the said proposition, in the present case, on filing of copies of notices allegedly issued to the parties, no affidavit is filed denying the same. In such circumstances, the judgments relied on by him in this regard are of no avail. Ridh Karan Rekecha referred to supra, is a case where a Division Bench of High Court of Calcutta, though found that Notification under Section 3A(2) of the N.H.Act was bad for lacking brief description of the land and possession was taken illegally despite the imposition of restriction by the Court, however did not declare the Notification as illegal, but directed that the compensation already determined be enhanced by 30% on account of the illegality in the Notification and deprivation of possession. Such a situation is not present in the case on hand.
61. In Gullapalli Nageswara Rao's case referred to supra, a Constitutional Bench of the Apex Court, in the context of amendments brought in the Motor Vehicles Act providing for the State Transport undertaking running the business to the exclusion complete or partial, of all other persons doing business in the State, inter alia held that ' if one person hears and another decides, then personal hearing becomes an empty formality' and it offends basic principle of judicial procedure. The said judgment pressed into service in support of the contention that the Mandal Revenue Officer conducted the enquiry and Revenue Divisional Officer passed orders, in the absence of any basis and that too after about 6 years of the award, would be of no help to the petitioners, more particularly in the light of the conclusions about laches on the part of the petitioners. In this regard, it is apt to refer to the expression of the Hon'ble Supreme Court in Indore Development Authority's case referred to supra at para No.356 which reads thus:
"356. We are of the opinion that courts cannot invalidate acquisitions, which stood concluded. No claims in that regard can be entertained and agitated as they have not been revived. There has to be legal certainty where infrastructure has been created or has been developed partially, and investments have been made, especially when land has been acquired long back. It is the duty of the Court to preserve the legal certainty, as observed in Vodafone International Holdings BV v. Union of India (reported in (2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867). The landowners had urged that since the 2013 Act creates new situations, which are beneficial to their interests, the question of delay or laches does not arise. This Court is of the opinion that the said contention is without merits. As held earlier, the doctrine of laches would always preclude an indolent party, who chooses not to approach the court, or having approached the court, allows an adverse decision to become final, to reagitate the issue of acquisition of his holding. Doing so, especially in cases, where the title has vested with the State, and thereafter with subsequent interests, would be contrary to public policy. In A.P.State Financial Corpn. V. Gar Re-Rolling Mills (reported in (1994) 2 SCC 647), this Court observed that equity is always known to defend the law from crafty evasions and new subtleties invented to evade the law. There is no dearth of talent left in longing for the undue advantage of the wholesome provisions of Section 24(2) on the basis of wrong interpretation."
62. For the aforegoing reasons, this Court is of the considered opinion that the order under appeal does not suffer from any illegality or infirmity calling for interference by this Court in exercise of the appellate jurisdiction.
63. Accordingly, the appeals are dismissed. No order as to costs. As a sequel, all the pending miscellaneous applications shall stand dismissed.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
BLV
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE NINALA JAYASURYA WRIT APPEAL Nos.344 of 2021 & 369 of 2021 day of October, 2021 BLV