Lanka Prabhakar Rao, vs Union Of India,
2021 Latest Caselaw 1949 AP

            HON'BLE SRI JUSTICE M.VENKATA RAMANA

                  WRIT PETITION No.18829 of 2019

ORDER

The petitioners are challenging the award No.12/2013/NH-5 in

Rc.No.4211/2011(SDT) dated 27.12.2013 and revised award

No.06/2015/NH-5 in Rc.No.4211/2011(SDT) dated 16.11.2015 in this writ

petition aggrieved on account of acquiring the lands claimed by them for

the purpose of widening the existing 4-lane road in to 6-lanes of a stretch

of National Highway No.5, particularly at Venkatapalem village.

2. An extent of 2,41,063 Sq.mtrs in Venkatapalem village of Tullur

Mandal, Guntur District was proposed for acquisition by the Central

Government for public purpose for formation of Vijayawada bypass as a

part of, for widening and extending 4-lane into 6-lane of National Highway

No.5 from Vijayawada to Gundugolanu section from K.M.0-0040 to

K.M.16.000 in exercise of its powers conferred by sub Section (1) of

Section 3A of National Highways Act, 1956. An award was passed thereon

in Rc.No.4211/2011(SDT), dated 27.12.2013 by the 4th respondent. It

shall be called hereinafter as, 'the 1st award', for convenience.

3. In respect of an extent of land covering 9431 Sq.mts.of

Venkatapalem village in Tulluru Mandal, Guntur District was acquired for

the same purpose stated above by the Central Government invoking the

same powers conferred under Section 3A(1) of the National Highways Act

upon passing an award therefor by the 4th respondent in

Rc.No.4211/2011(SDT), dated 16.11.2015. It shall be called hereinafter

as, ' the 2nd award', for convenience.

MVR,J W.P.No.18829 of 2019

4. The principal contention of the petitioners in questioning these

awards, more particularly, with reference the 1st award is that the

prescribed procedure under National Highways Act in terms of Section 3G

and Section 3E was not followed and that they were not given an

opportunity to present their claims in respect of their individual extents.

5. They further contended that they were directed to appear by

notification published in 'The Hindu' English daily and 'Andhrajyothi'

Telugu (Vernacular) daily pursuant to the public notice dated 10.01.2013

in respect of an alleged award enquiry under Section 3G(3) of the National

Highways Act in the office of the 4th respondent at 11.00 a.m. Their

further contention is that they did visit this office to file their objections

where they were informed that another date would be fixed for such

purpose, in respect of which personal notices would be issued for hearing.

The petitioners further contended that no notices as such were issued nor

any date was fixed depriving them of reasonable opportunity of

presenting their claim.

6. Thus, the petitioners questioned the claim of the 4th respondent

that an enquiry was conducted on 31.01.2012 where statements of land

owners or enjoyers or their representatives were stated to have had been

recorded. They also questioned the manner of mentioning such an

enquiry in terms of Section 3G of the National Highways Act in the 1st

award, followed by sub division measures upon survey.

7. Thus, the determination of the compensation by the 4th

respondent is stated by the petitioners as just a paper work without duly

following the prescribed procedure upon recording the statements of the

land owners or enjoyers or the interested persons and which is not in MVR,J W.P.No.18829 of 2019

terms of Section 3-A to J of National Highways Act. In this process they

also pointed out improper mentioning of names relating to petitioners

nos.3,15,27,29,30,31 and 33.

8. The petitioners further contended that the procedure in terms of

Section 3E of National Highways Act for taking over possession was not

followed in as much as by the time of proposed action to take possession,

there should be determination of compensation as well as deposit of the

said sum to the credit of the competent authority viz., the 4th respondent.

They also contended that never such amount determined was disbursed

or distributed or paid to any of these land owners or users or enjoyers or

persons interested.

9. Thus, the petitioners contended that the entire process was

completed by the respondents as an empty formality to avoid application

of the Right to Fair Compensation and Transparency in Land Acquisition

Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013), since there

was likelihood of implementing and applying this Act to national highways.

Thus, they claimed that only to peg-down the market value, such record

was created. Thus, they claimed that on account of this action of the

respondents they suffered immense loss and damage, who were deprived

of just and appropriate compensation for their lands.

10. The petitioners further contended that in respect of the 2nd

award, Act 30 of 2013 was applied and drawing a differentiation and

distinction between the 1st award and 2nd award, though relate to the

same proposal for acquisition, attracted application of Article-14 of the

Constitution of India on account of the distinct discrimination, while

offending their right to life in terms of Article -21 of the Constitution of MVR,J W.P.No.18829 of 2019

India. Thus, they contended that the entire process undertaken by the

respondents is offending their constitutional rights under Article-300A of

the Constitution of India.

11. Thus, on such grounds among others they contended that their

claim with reference to the 1st award should be considered in terms of Act

30 of 2013, taking out fresh notification for acquiring their lands. They

asserted that the respondents did not take possession of their lands and

that they have been in their actual and effective possession of the lands

even now.

12. Thus contending, they sought the relief in the nature of a writ

or direction of mandamus declaring the action of the respondents with

reference to these two awards as arbitrary, illegal, discriminatory, unjust,

colourable exercise of power suffering from non-application of mind to the

relevant Acts, violating principles of natural justice as well as the

procedure under the National Highways Act (Act 30 of 2013), apart from

attracting infraction of Articles 14,21 and 300-A of the Constitution of

India and to set aside these two awards, directing the respondents not to

interfere with their possession and enjoyment of the subject lands while

directing to initiate fresh land acquisition proceedings in case the

respondents require these lands.

13. By an interim order dated 25.11.2019 in I.A.No.1 of 2019, the

respondents were directed not to dispossess the petitioners from their

respective lands and it is in force.

MVR,J W.P.No.18829 of 2019

14. The respondent no.3 including on behalf of the respondent

no.2 and the respondent no.4 filed separate counter affidavits opposing

this writ petition, while requesting to vacate the interim direction.

15. The main contention of these respondents is that the

procedure in terms of the National Highways Act was duly followed

without any breach, taking out necessary publications either in respect of

the enquiry in terms of Section 3C or in terms of Section 3G(3) & (4) of

National Highways Act. They further contended that some of the land

owners, enjoyers or persons interested took part in these proceedings and

that the 4th respondent upon considering the material, after following due

procedure, passed the 1st award for Rs.13,84,28,826/-for the acquired

lands of 2,41,063 sq.mtrs.of Venkatapalem village and that

Rs.5,60,37,203/- out of it, was disbursed to some of the claimants. They

also contended that with reference to missing extents covering 9431

Sq.mtrs., Rs.96,15,747/- was awarded by the 2nd award following due

procedure in terms of Act 30 of 2013 which was then vogue and this

amount was deposited to the joint account of the 3rd and 4th respondents.

16. The 3rd respondent also contended that after the awards were

passed, the 4th respondent issued notices under Section 3E(1) of the

National Highways Act to the claimants/persons interested and that some

of the land holders received compensation submitting valid documents

proving their title. It is also the contention of the 4th respondent that some

of the land holders preferred arbitration before the District Collector,

Guntur, who is the sole arbitrator in terms of the National Highways Act,

requesting to enhance the compensation. It is the contention of the 3rd

respondent that the petitioners should approach the 4th respondent to MVR,J W.P.No.18829 of 2019

receive respective amounts towards compensation duly submitting valid

documents. It is also contended that 19 of the petitioners have

approached the District Collector,Guntur for arbitration, which are

pending. Thus, the 3rd respondent contended that the petitioners were

fully aware of the proceedings before the 4th respondent and only to

create unnecessary litigation, they filed this writ petition. It is also

contended that Act 30 of 2013 is not applicable to the instances covered

by the 1st award.

17. The 4th respondent in its counter affidavit while asserting that

due procedure was followed in the entire proceedings in terms of the

National Highways Act referring to disposal of the objections when raised

in terms of Section 3C of some of the affected, survey carried out thereon

and declaration notification issued by the Government in terms of Section

3E, contended that when enquiry was conducted on 31.03.2013

statements of land owners/ enjoyers or their representatives who

attended were recorded and the 1st award was passed. While also

referring to passing the 2nd award following due process of law and

determination of the value of these lands, it is the contention of the 4th

respondent that it is ready to pay and disburse the amount to those who

approached it with valid documents, it is stated that on account of the

huge nature of this project for formations of road, lands were handed

over to the 2nd and 3rd respondents on 02.08.2014.

18. Contending that Act 30 of 2013 is not applicable to the

instances covered by the 1st award, which was made applicable to the

instances covered by the 2nd award, it is the assertion of the 4th

respondent that the land delivered to the 3rd respondent on 02.08.2014 MVR,J W.P.No.18829 of 2019

was also handed over to the contractor by N.H.A.I-2nd respondent for

formation of road. Thus disputing the entire claim of the petitioners

including the possession and enjoyment of these lands by the petitioners,

it is contended that in the circumstances question of dispossession of the

petitioners therefrom did not arise.

19. On behalf of the petitioners denying the averments in the

counter affidavits, separate reply affidavits are also filed rebutting such of

those which require rebuttal, while asserting their claim. It is the further

contention of the petitioners that their efforts to get at the records

relating to both these awards either following the Right to Information Act

or procedure in Writ Petitions was not fruitful and thus contended that the

entire claim of the respondents is false, since no enquiry was conducted

as such.

20. Sri C.V.R.Rudra Prasad, learned counsel for the petitioners,

addressed arguments on their behalf and filed written submissions. Sri

P.Veera Reddy, learned Senior counsel for Sri S.S.Verma, learned

Standing counsel for N.H.A.I. for the respondents 2 and 3 and learned

Additional Advocate General for the respondent no.4 Competent

Authority-cum- Revenue Divisional Officer, Guntur addressed arguments.

21. Now, the following points arise for determination:

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?

MVR,J W.P.No.18829 of 2019

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?

POINT No.1:

22. The petitioners are among those who are affected by the 1st

and 2nd awards relating to acquisition of lands in Venkatapalem village,

Tulluru Mandal, Guntur District.

23. The procedure followed for acquiring under the 1st award was

in terms of the National Highways Act. Whereas in respect of the

acquisition of land under the 2nd award, Act 30 of 2013 was applied ,since

NHAI, New Delhi had decided that all the awards for compensation made

on or after 01.01.2015 for acquisition of lands under the National

Highways Act, 1956 will be as per the 1st schedule to the said Act. It is

made clear in the 2nd award under the caption 'Determination of Market

Value'. It is not a disputed fact either, in this writ petition.

24. A separate procedure is directed to acquire the lands under the

National Highways Act. Predominantly and principally, Section 3A to

Section 3H considered this process.

25. The scope of these provisions is succinctly stated in Dano

Vaccines & Biological (P) Ltd., Hyderabad and another vs.

Government of India and another1(relied on for the respondents 2

and 3) ,in paras-13 and 14. They are extracted hereunder.

. (2012)2 ALD 387(DB) MVR,J W.P.No.18829 of 2019

"13. The Act prescribes a complete code in itself, under Sections 3A to 3J, for acquisition of land for the building, maintenance, management and operation of highways. The process is initiated under Section 3A(1) of the Act upon the satisfaction of the Central Government that land is required in this regard and a consequential notification is issued in the Official Gazette declaring its intention to acquire such land. Section 3A(2) mandates a brief description of the acquired land in the said notification. Section 3C(1) provides for persons interested in the land notified under Section 3A(1) to object to such acquisition within 21 days from the date of publication of the notification. Section 3C(2) requires the competent authority, being the person or authority authorized and notified by the Central Government under Section 3(a) of the Act, to give the objector an opportunity of being heard either in person or through a legal practitioner and to either allow or disallow such objections, by order. Section 3D(1) provides that where no objections are received or are received and disposed of under Section 3C(2) and upon submission of a report in that regard, the Central Government shall declare by notification in the Official Gazette that the land should be acquired for the purposes of the highway. Section 3D(2) postulates that on the publication of the declaration under Section 3D(1), the land shall vest absolutely in the Central Government free from all encumbrances. Section 3G deals with determination of the amount payable as compensation. Sub-section (1) of Section 3G mandates that for land acquired under the Act, the amount determined by the order of the competent authority shall be paid. Section 3G(3) posits that before proceeding to determine the amount payable, the competent authority shall give a public notice published in two local newspapers, one of which will be in the vernacular language, inviting claims from all persons interested in the land. Section 3G(5) provides that if the amount determined by the competent authority is not acceptable to either of the parties, such party may seek determination through arbitration.

14. It is clear from the above statutory scheme that Section 3G of the Act only deals with determination of the compensation and prescribes the procedure to be followed by the competent authority....."

26. In Union of India vs. Kushala Shetty and others2 (relied

on for the respondents 2 and 3) there is also reference of these provisions

particularly Section 3C and Section 3D in paras 20 and 21. They are as

under:

"20. The scheme of acquisition enshrined in the above reproduced provisions makes it clear that once the Central Government is satisfied that any land is required for the building, maintenance, management or operation of a national highway or part thereof, then, it shall declare its intention to acquire such land by issuing a notification in the official Gazette giving brief description of the land. The substance of the notification is also required to be published in two local newspapers of which one has to be in a vernacular language. Any person interested in the land can file objection within 21 days from the date of publication of the notification in the official Gazette. Such objection is required to

. (2011) 12 Supreme Court Cases 69 MVR,J W.P.No.18829 of 2019

be made to the Competent Authority in writing. Thereafter, the Competent Authority is required to give the objector an opportunity of hearing either in person or through a legal practitioner. This exercise is to be followed by an order of the Competent Authority either allowing or rejecting the objections.

21. Where no objection is made to the Competent Authority in terms of Section 3C(1) or where the objections made by the interested persons have been disallowed, the Competent Authority is required to submit a report to the Central Government, which shall then issue a notification in the official Gazette that the land should be acquired for the purpose or purposes mentioned in Section 3A(1). On publication of declaration under Section 3D(1), the land vests absolutely in the Central Government free from all encumbrances....."

27. As seen from the above provisions, pursuant to the notification

upon expression of intention to acquire lands for public purpose by the

Central Government for and in respect of the National Highway or a part

thereof, a notification shall be issued under Section 3A(1) followed by a

survey in terms of Section 3B for the purposes stated therein. Important is

hearing and enquiry of the objections under Section 3C of this Act

questioning the use of the land for the purpose or purposes stated in the

notification referred to above where the competent authority, who is

defined in terms of Section 3(a) of the National Highways Act, shall

dispose of after giving an opportunity to the objectors. Thereafter, a

declaration shall be issued under Section 3D when no objections were

received or objections received were disallowed, for which purpose a

notification shall be published in official gazette declaring that the land

should be acquired for the purpose or purposes mentioned therein.

28. The impact of this declaration upon such publication is very

significant and is ominous in its effect when in terms of Section 3D(2) the

subject matter of acquisition viz., the land shall vest absolutely in the

Central Government free from all encumbrances. This impact and effect MVR,J W.P.No.18829 of 2019

has enormous and profound application to the present situation in this

case which shall be discussed infra.

29. Section 3E refers to procedure taking possession of these lands

subject to determination of the compensation and deposit the same in

terms of Section 3G and Section 3H respectively. Notice is contemplated

to issue to the owner as well as any other person who is in possession of

such land to surrender or deliver possession thereafter to the Competent

Authority or any person duly authorised by it within 60 days of service of

such notice. In case of refusal to deliver or surrender so stated, assistance

of the Commissioner of Police in relating to the land situated in

Metropolitan area or of the Collector of the District, when the land is

situated in an area other than the metropolitan area. Thus, these two

authorities in the given situation shall enforce surrender of the land to the

competent authority or its delegate.

30. Thereupon, in terms of Section 3F in view of vesting of the

land in Central Government in terms of Section 3D(2) of this Act, it shall

be lawful for any person authorised by the Central Government in this

behalf to enter and do other acts necessary upon the land to carry out the

purpose for which it is acquired.

31. The procedure in determination of the compensation is the

issue pertinent for the present purpose. It is desirable to extract section

3G of the National Highways Act hereunder:

"3G.Determination of amount payable as compensation.--(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid MVR,J W.P.No.18829 of 2019

an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.

(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government--

(6)Subject to the provisions of this Act, the provisions of the Arbitration and ConciliationAct, 1996 (26 of 1996) shall apply to every arbitration under this Act.

(7)The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration--

(a)the market value of the land on the date of publication of the notification under section 3A;

(b)the damage, if any, sustained by the person interested at the time oftaking possession of the land, by reason of the severing of such landfrom other land;

(c)the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change."

32. Though the pleadings in the affidavit filed in support of the writ

petition set out as if there is infraction of the procedure in terms of

preliminary notification under Section 3A(1) and the enquiry under Section

3C(2) of the National Highways Act, in the course of arguments as well as

in the written arguments, Sri C.V.R.Rudra Prasad, learned counsel for the MVR,J W.P.No.18829 of 2019

petitioners, has made clear that the petitioners are not interested nor

pressing any claim on the score that the procedure in terms of Section

3A(1) and 3C(2) has been offensive to their claims and that they are

confining their present challenge only with reference to infraction of the

procedure under Section 3G(3) and (4) of the National Highways Act.

Therefore, only to this extent, this writ petition is being considered now.

33. This stand of the petitioners makes clear that there is no

challenge on their part, of the procedure followed in passing both the

awards in question up to the stage covered from Section 3A to Section

3D of the National Highways Act. They further did not question the effect

of Section 3F nor any question arises with reference to application of

Section 3H and Section 3-I of the National Highways Act.

34. A careful examination of Section 3G of the National Highways

Act gives an impression that it is concerned to payment of compensation

as determined by the order of the Competent Authority viz., the 4th

respondent hereunder, following determination of the amount payable as

compensation for the land acquired, as is specified in Section 3G(1) or

towards certain easementary rights in terms of Section 3G(2) including

right of enjoyment in the land.

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 MVR,J W.P.No.18829 of 2019

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 the Name of       the Name of the Village      Name of       the Date & Time
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 above

prescribed date at about 11.00 A.M., they visited the office of the Land MVR,J W.P.No.18829 of 2019

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 MVR,J W.P.No.18829 of 2019

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.

44. It is also pertinent to consider the nature of the action and the

purpose of calling the persons interested in the land proposed to be

acquired. The purpose and object of calling their attendance or

appearance is not in terms, for the purpose of an enquiry. Section 3G(4)

clearly states that their appearance either in person or by agent or by

legal practitioner before the Competent Authority at the time and place is

to state the nature of their respective interest in such land.

MVR,J W.P.No.18829 of 2019

45. Though there is reference to Section 3C(2) in Section 3G(4), it

is only to indicate appearance of the person interested either himself or

through an agent or by a legal practitioner. In terms of Section 3C(2),

while hearing the objections of any person interested, when an objection

is made in writing to the Competent Authority setting out grounds, an

opportunity should be given to him by the Competent Authority of being

heard either in person or by a legal practitioner and the Competent

Authority may after hearing of such objections, after making such further

enquiry if any, if it is felt necessary by an order either allow or disallow

the objections. Therefore, in terms of Section 3C(2) of the National

Highways Act when there was an occasion to consider the objections

relating to use of the land proposed for acquisition, a regular enquiry of

the above nature is prescribed.

46. However, when Section 3G(4) is considered, it is only for a

limited purpose to bring out the version of the person interested or the

person who is affected by the proposed acquisition as to nature of his

interest to such land. It did not contemplate any objection or statement to

be filed in writing as is specifically appearing in section 3C(2) or hearing

the party affected by the proposed acquisition or the person interested in

the land nor it contemplated an order of the Competent Authority either to

accept such version of those affected by the proposed acquisition or to

reject.

47. Thus, there is a sea of difference in the scope and operation in

Section 3C(2) and 3G(4) of the National Highways Act. Both of them

operate in different set of circumstances or fields with the purpose and

object being distinctly dissimilar. Therefore, as such in terms of Section MVR,J W.P.No.18829 of 2019

3G(4), it can be safely concluded that an enquiry of the nature prescribed

in Section 3C(2) is not contemplated.

48. The next question is what shall be the basis for the Competent

Authority to determine the amount payable as compensation. Section

3G(7) itself suggested the course to follow viz., in determining the

compensation in terms of Section 3G(1), the Competent Authority shall

take into consideration, the instances enumerated or rather enlisted

therein. Thus, when these provisions presented a complete code as

observed in Dano Vaccines & Biological (P) Ltd., Hyderabad and another

(1 supra), the contention of the petitioners that there shall be an enquiry

by the Competent Authority where they shall be given an opportunity to

be heard and that there is serious infraction of these provisions affecting

their statutory rights, is not acceptable.

49. Thus, not only basing on the fact situation but also considering

the legal issue as to the procedure in this respect, the claim of the writ

petitioners against the 1st award cannot stand.

50. Somewhat similar questions were considered in Nerajala

Nageswara Rao and another v. Union of India and three others3

(relied on for the respondents 2 and 3) by one of the learned Judges of

then High Court of Andhra Pradesh at Hyderabad and particularly

attaching significance to public notice contemplated in these provisions

without specific need for issuance of personal notice.

51. Another issue raised on behalf of the petitioners is that they

are in effective possession and enjoyment of subject lands and that the

. (2017) 5 ALD 575=(2017)5 ALT 385 MVR,J W.P.No.18829 of 2019

respondents 2 and 3 did not take over possession of these lands muchless

on 02.08.2014. Their further contention is that they were not issued

notices under Section 3E(1) of National Highways Act at any time nor they

were dispossessed therefrom in tune with the procedure thereunder.

52. Section 3E of the National Highways Act refers to the power of

the Central Government to take possession. It is desirable to extract the

same hereunder for convenience.

"3E.Power to take possession.--(1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under section 3G with respect to such land has been deposited under sub-section (1) of section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice.

(2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply--

(a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;

(b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it."

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 sense MVR,J W.P.No.18829 of 2019

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 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 MVR,J W.P.No.18829 of 2019

is not adversarial in nature in this writ petition and that their version

requires consideration, cannot be accepted.

56. Their further claim is that either with reference to statements

recorded of the persons interested or users or enjoyers on 31.01.2012 or

with reference to notices served in terms of Section 3E(1), no material is

produced by the respondents 2 to 4 and efforts made by them under the

Right to Information Act or calling upon learned Government Pleader

serving a notice under Rule-15 of Writ Proceedings Rules did not yield

result. On account of the failure of the respondents 2 to 4 to produce such

record, it is the contention of the petitioners that their version of following

due process of law and the procedure required under National Highways

Act, should be held being incorrect and false.

57. There is fallacy in this contention. As rightly pointed out for the

respondents 2 and 3 the entire strain of the petitioners is only to question

the 1st award and they are silent so far as the effect of 2nd award is

concerned. Whatever effort made by them under the Right to Information

Act is subsequent to institution of the Writ Petition. Reasons are already

stated that there is no material placed by the petitioners to make out

follow up action they resorted to after their alleged denial of opportunity

to present themselves before the 4th respondent competent authority did

not materialise nor with reference to service of notices under Section 3E(i)

of National Highways Act.

58. Rule-15 of Writ Proceeding Rules requires a request to be

made in writing on behalf of the petitioners entitled to inspect the records,

to the Government Pleader and in the event of refusal of such request,

the party shall be entitled to apply for directions in this behalf.

MVR,J W.P.No.18829 of 2019

59. A request in the nature of a letter served on the learned

Government Pleader is filed on behalf of the petitioners along with the

written submissions. It was not a course resorted to during the course of

hearing in this writ petition.

60. Even otherwise, production of records in the circumstances of

this case is quite unnecessary. The awards themselves are clear that the

persons who are interested in these lands or the owners of the lands who

attended gave statements and the 4th respondent authority recorded them

particularly in the course of the 1st award proceedings. For instance, Sri

Patibandla Venkateswara Rao, Sri Lanka Madhava Rao,Sri Parasaram

Venkataramanacharyulu, Archaka on behalf of Sri Sitharamaswamy Vari

Devasthanam,Venkatapalem Village, Sri Aluri Venkatramaiah, Smt.Vepuri

Satyavathi, Sri Patibandla Venkateswarlu for Sri Patibandla Saideep, minor

represented by mother Sri Lakshmi Durga, Sri Vaka Sarathbabu, Sri Vaka

Sekhar Babu for Smt. Vaka Sivaparvathi, Sri Vaka Sridhar, Sri

Manchikalapudi Sambasiva Rao, Smt. V.Siva Parvathi, Sri Manchikalapudi

Venkata Krishna Rao, Sri Punumuchi Uday Sekhar, Prathipati

Chennakesava Rao were among those who attended before the

Competent Authority-cum-Land Acquisition Officer during 1st award

proceedings among others.

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 MVR,J W.P.No.18829 of 2019

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 by

law 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 verification

by 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 MVR,J W.P.No.18829 of 2019

handed over to the contractor, who is building or working on this segment

of this national highway.

65. Therefore, the principal contentions advanced on behalf of the

petitioners stand rejected.

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 (2 supra), 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 others4, 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

. (2005) 13 Supreme Court Cases 477 MVR,J W.P.No.18829 of 2019

stage on wards 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 MVR,J W.P.No.18829 of 2019

parties whose lands are acquired under the Act should be given to the Writ Petitioners along with what has been directed by us in this judgment."

68. It is also the submission on behalf of the petitioners that the

respondents 2 and 3 have relied on this ruling, where observations of this

nature are made which is suggesting that the respondents 2 and 3 intend

to have such recourse in this matter. It is also the submission of the

learned counsel for the petitioners that since the petitioners did not have

any objection principally for acquisition of their land in the given scenario,

this course can also be considered.

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 others5. 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."

. (1997) 1 Supreme Court Cases 134 MVR,J W.P.No.18829 of 2019

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 MVR,J W.P.No.18829 of 2019

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.

POINT No.2:

75. In view of the reasons stated while discussing on point no.1

since awards are confirmed, it is not necessary that there should be a re-

look into the matter upon taking out fresh notification for the purpose of

acquisition of these lands and such question did not arise. Thus, this point

is held against the petitioners and in favour of the respondents.

MVR,J W.P.No.18829 of 2019

POINT No.3:

76. There is no merit in this writ petition. In view of the findings on

points 1 and 2, this Writ Petition has to be dismissed.

77. In the result, this writ petition is dismissed. Interim direction

dated 25.11.2019 is vacated. Since the petitioners are all oustees from the

lands and are evicted by the acquisition process, it is not desirable to

mulct them with any costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

________________________ JUSTICE M.VENKATA RAMANA Dt: 14.06.2021 Note: Registry is directed to upload the order this day itself. L.R. copy to be marked.

B/o RR MVR,J W.P.No.18829 of 2019

HON'BLE SRI JUSTICE M.VENKATA RAMANA

WRIT PETITION No.18829 of 2019

Dt: 14.06.2021

Note: Registry is directed to upload the order this day itself. L.R. copy marked.

B/o RR MVR,J W.P.No.18829 of 2019

RR MVR,J W.P.No.18829 of 2019