Vijayanagar Hatcheries Private ... vs Union Of India
2021 Latest Caselaw 1057 AP

      THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

                  WRIT PETITION No.17050 of 2020


ORDER:-

       The petitioner is a private limited company which has set

up a Broiler Breeder Farm at Jayathi Village in Mentada

Mandal, Vizianagaram District, over an area of Ac.21.23 cents.

It is stated in the affidavit that the petitioner had set up a State

of    the   Art     Breeding    form       involving   the      installation   of

sophisticated machinery.

       2.      On    23.01.2020,       a    notification     dated    8.1.2020,

issued by the 1st respondent was published in a                            local

newspaper to the effect that lands including some of the lands of

the petitioner would be acquired for the purposes of laying a

new Highway No.26 connecting Andhra Pradesh with Orissa.

The total extent of land that was to be acquired was Ac.7.869

cents. The petitioner verified the alignment of the proposed

highway and noticed that the said alignment would result in

1/3 of the land held by the petitioner being acquired and also

result in total demolition of 4 out of the 9 structures of the

petitioner's breeding farm. The petitioner had approached the

Project Director and other authorities involved in the acquisition

and represented to them, on 2.2.2020, about the damage that

would be caused to the petitioner on account of the alignment of

the highway. The second respondent by letters dated

11.02.2020 and 12.03.2020 had informed the 5th respondent,

who is the engineering consultant for the project to consider the

representations of the petitioner after due verification on the

ground before taking any further decision on the alignment.

3. As preliminary work for laying the road was

commenced without any response from the 5th respondent or

the representatives of the National Highway Authority of India,

the petitioner had approached this Court seeking a Writ of

Mandamus declaring the action of the respondent in acquiring

the land of the petitioner without considering the damage that

would be caused to the petitioner and without considering its

plea for re-alignment, as illegal, arbitrary and violative of

principles of natural justice contrary to the provisions of

National Highways Act, 1956 and consequently set-aside the

notification of the 1st respondent dated 08.01.2020.

4. The 5th respondent has chosen to remain silent

despite being served with notice of the writ petition. The

respondents 2 and 3 filed a counter stating that 35 objections,

including the petitioner's were received to the notification issued

under Section 3-A of the National Highways Act, 1956 and all

these objections were considered. The respondents would

submit that at the time when the notification was given and the

alignment was being done, the first four sheds at the site of the

petitioner did not exist and these four sheds have been

constructed after the survey was done. It is further submitted

that the alignment was done following the standard parameters

which are required to ensure that the designed speed of 100

kms., per hour is achieved.

5. The respondents would submit that a joint

inspection was carried out on 11.09.2020 to see if any changes

in the alignment could be effected without impinging on the

designed parameter. A public meeting was also held. However,

the local public refused to accept any change in alignment as

such change would cause loss of their land parcels. The

respondents relied upon a Judgment of the Hon'ble Supreme

Court in the case of Union of India Vs Kushala Shetty and

others 1 to submit that the scope of judicial review is very

limited and the Court can nullify acquisition of land in rarest of

rare cases if it is found to be ex-facie contrary to the mandate of

law or tainted due to mala fides. The respondents also relied

upon a Judgment of the Hon'ble Supreme Court in Ramniklal

N.Bhutta and another vs. State of Maharashtra and others2.

6. The petitioner filed a reply to the said counter

affidavit. In this reply, the petitioner would submit that

petitioner had constructed four sheds by 10.02.2018 and the

Google map of the area as on 11.11.2019 would show there were

nine sheds much before the initial notification of January, 2020.

The petitioner would contend that the alignment of the road of

the highway was done by the 5th respondent consultant without

any inspection of the area and on the basis of Google maps

which is highly arbitrary as the local conditions which would

have been evident in the course of physical inspection.

7. The respondents 2 and 3 filed an additional counter

affidavit dated 16.12.2020 where it was stated that the D.P.R

consultant had given a report on 09.12.2020 wherein it was

observed that even though notification under Section 3-A was

issued for acquisition of 70 meters wide right of way only 60

meters is taken for 3D stage and therefore, a maximum of 60

meters width is proposed to be acquired at the extreme edge

(2011) 12 SCC 69

(1997) 1 SCC 134

away from the hatchery area. The additional counter went on to

state that the same has been considered by the authority after

necessary survey had been carried out in the presence of the

petitioner's representative on 05/06.12.2020.

8. In the present case, while some part of the property

of the petitioner would be affected, the contents of the additional

counter affidavit dated 16.12.2020 would go to show that the

respondents have reduced the width of the right of way from 70

meters to 60 meters and such reduction is ensuring that some

of the sheds and constructions of the petitioner would be saved.

9. As held by the Hon'ble Supreme Court in the

aforesaid Judgments cited by the 2nd and 3rd respondents, the

scope for judicial review in matters of change of alignment etc.,

is very restricted and unless blatant violation of law is pointed

out, the Court exercising jurisdiction under Article 226 of the

Constitution of India cannot interfere in such matters. In the

present case, no such blatant violation has been shown. It is

possible that the view of the Petitioner that there could be a

change of alignment is feasible. However, acceptance of such a

view would amount to imposing the opinion and views of the

court on the authorities which is not permissible.

10. As the respondents have made some changes to

accommodate the interests of the Petitioner, it cannot be said

that the Respondents have acted in a totally arbitrary fashion

without application of mind.

11. In the circumstances, the writ petition is disposed

of by placing on record the stand of the respondents that they

would be acquiring land of the Petitioner to accommodate a 60

meter wide Right of way. There shall be no order as to costs.

Miscellaneous Petitions, if any pending, in this Writ

petition, shall stand closed.

                                 ________________________________
                                JUSTICE R.RAGHUNANDAN RAO

Date :     23-02-2021
RJS



      THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO




            WRIT PETITION No.17050 of 2020

                  Date :   23-02-2021


RJS