Andhra Pradesh High Court - Amravati
Yarlagadda Harish Chandra ... vs Union Of India on 7 October, 2021
* 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
(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."
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
(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.
xxxxxxxxx
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 &
2020 SCC Online Ker 16255
AIR 1959 SCC 308
2000 SCC Online A.P., 88
2004 SCC Online, Cal 232
(2007) 6 SCC 555
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
MANU/JH/1649/2017
(2005) 13 SCC 477
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
