A V K Vswanatha Raju vs Union Of India
2022 Latest Caselaw 7574 AP

      HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                  Writ Petition No.28273 OF 2021

ORDER:

The petitioner seeks writ of mandamus challenging the

notification SO No.2563/E, dated 25.06.2021 issued by the 1st

respondent proposing to acquire the land of the petitioner along with

other lands in the stretch of National Highway No.216 from KM 126.1

to KM 10.8 of East Godavari District, Andhra Pradesh as illegal,

arbitrary and contrary to the provisions of National Highways Act,

1956 (for short 'Act, 1956').

2. Petitioner's case succinctly is thus:

(a) The 1st respondent issued notification in S.O.2563(E), dated

25.06.2021 U/s 3(A)(1) of the Act, 1956 proposing to acquire the

lands mentioned in the schedule of the notification which includes the

lands in Sy.No.654, 656, 660, 661 and 663 of Malikapuram Mandal in

East Godavari District for the purpose of formation of two-line bypass

road to National Highway No.216 at the stretch of 126.1 KMs to 10.8

KMs from the bypass to Narsapur Town Road. Objections were called

for within 21 days from the date of publication of the notification to

be submitted to the Sub Collector, Amalapuram /8th respondent.

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(b) The petitioner owns the land admeasuring Ac.0.67 cents,

Ac.0.33 cents and 0.19 cents in Sy.No.654/1, 654-12, 654-9 and

Ac.1.37 cents in Sy.No.656-5A, Ac.0.35 cents in Sy.No.661/2A2 and

0.53 cents in Sy.No.663-1 of Gudimellanka Village, Malkipuram

Mandal, East Godavari District. The petitioner's lands are effected by

the notification. In his lands there is an ancient water tank which was

earlier used for drinking and presently for his cattle and also for

irrigation. Hence the petitioner submitted his objections on

05.07.2021 to the Tahsildar, Malkipuram stating that if the national

highway road passes through the middle of the land, his tank and

agriculture will be affected totally. The Tahsildar forwarded his

objection to the 8th respondent. Besides, the Tahsildar inspected his

lands and submitted a report in Ref.A/889/2021, dated 16.09.2021

confirming the existence of two tanks in Sy.No.656 and Coconut

garden in Sy.No.654 and stating that the alignment will affect a

portion of water tank and also a portion of Coconut garden. The

petitioner sent another representation on 03.08.2021 to the 1st

respondent.

(c)The 3rd respondent along with the 4th respondent and other

field staff reviewed the alignment on 29.09.2021 and agreed to change ::3::

the design from KM 18.200 to 19.900 subject to the condition that if

the new land losers agree to give no objection. The 7 th respondent

addressed a letter dated 01.11.2021 to the 8th respondent informing

about the decision of the 3rd respondent to change the alignment and

requested to take steps accordingly within three weeks. He enclosed

the modified alignment map also to his letter which shows that the

modified alignment is a straight alignment and reduce the length of

the stretch about one kilometer when compared to the earlier notified

alignment. The 8th respondent in turn directed the Tahsildar,

Malkipuram to enquire into the matter and contact the land owners

and take their consent vide his letter Ref.B/528/2021, dated

05.11.2021.

(d) In the modified alignment there are about 10 survey

numbers, out of which, four survey numbers i.e., 249, 250, 251 and

748 are the government lands and the land in S.No.664 belongs to

petitioner which he has no objection for acquisition and therefore the

authorities have to acquire only the remaining five survey numbers.

However, the Tahsildar has not taken any action in this regard. In the

meanwhile, on 26.11.2021 the officials of the respondents came to

petitioner's land and tried to dig the land as per the previous alignment ::4::

to erect the stones. The petitioner objected for their actions informing

that the authorities have agreed for modification of the alignment.

However, they stated that they were acting upon the instructions of

Sub Collector, Amalapuram. The Sub Collector ought not to have

followed the old alignment when the decision to change the alignment

is pending. Hence the action of respondents is illegal.

(e) In the Section 3A notification only survey numbers are

mentioned but their sub divisions and maps are not provided. As per

the decision of the Apex Court, failure to provide such full details will

deprive the owners of the lands to submit their objections. Hence

Section-3A notification is not in accordance with law.

Hence the writ petition.

3. The respondents 6 and 7 filed counter along with vacate stay

petition contending thus:

(a) A bridge across Vasista, the branch of Godavari river, was

proposed to be constructed by the State and Central Governments. In

the absence of such bridge, all these years, there is a ferry service for

the commuters at the points of Sakinetipalli-Narsapuram. Initially, the

bridge was proposed to be constructed on the upstream side of ::5::

Sakinetipalli-Narsapuram ferry points. Subsequently in the year 2008

the said proposal was stopped and it was proposed to construct on the

downstream side at a distance of 200 meters from Sakinetipalli-

Narsapuram ferry points. The said proposal was to connect the

existing Kakinada - Amalapuram - Narsapuram state highway road on

East Godavari to West Godavari side. It covers Sakinetipalli Lanka,

Sakinetipalli, Tekisettipalem, Malkipuram, Gidimellanka,

Medicherlapalem and Sivakodu Lock. A DPR was prepared in this

regard. The alignment was approved by the 3rd respondent. The

Regional Officer, Ministry of Road, Transport & Highways,

Vijayawada communicated the alignment plans to respondents 6 and

7. The plan was approved for 450 crores by the 1st respondent with an

object to provide good connectivity between East and West Godavari

Districts. Accordingly, section 3A notification was issued calling for

objections. The petitioner caused obstruction to the staff of the

respondents for undertaking the work. On 03.08.2021 the petitioner

submitted representation to the 1st respondent to make small change in

the road alignment to one side of the margin of his land instead of

taking the alignment through the middle of his agricultural lands in

S.No.654, 656, 661 and 663.

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(b) The 3rd respondent conducted a review meeting on

29.09.2021 at Vijayawada and proposed minor modification in the

approved alignment in the design chainage at KMs 18.200 to 19.900

subject to the condition that if the new land losers agree to give an

undertaking to the concerned revenue authorities and if such

undertaking was given, petitioner's land would be saved. Respondent

No.7 addressed a letter dated 01.11.2021 requesting the 8th respondent

to look into the matter and obtain the consent of the land owners in the

newly proposed survey numbers 249, 250, 251 and 253 of

Ramarajulanka Village and Sy.Nos.664, 665, 676, 674, 677 and 748

of Gudimellanka village within three weeks. After conducting enquiry

the 8th respondent in his letter date 22.11.2021 informed that the land

owners were not willing to give consent for the proposed change in

alignment. In that view, once again peg marking of right of way was

taken up but the petitioner caused obstruction. It is pertinent to

mention that the allegation of the petitioner that the change in

alignment would reduce the road length by one kilometer and that it

would be a straight alignment is incorrect. In fact there would be only

a difference of 96 meters which is less than 10% of approved

alignment. Further, the Tahsildar vide his letter in Ref.A/889/2021, ::7::

dt; 22.11.2021 and 10.12.2021 informed that the majority of land

owners in the proposed new alignment are small and marginal

farmers, whereas the petitioner is a big farmer having Ac.12.52½

cents of agricultural land. Out of his land, only Ac.3.44 cents

mentioned in his writ affidavit would be affected due to the approved

alignment. Hence, considering all these circumstances original

alignment was approved.

(c) Finally, it is stated that the total length of road and bridge is

23.2 kilometers covering West Godavari and East Godavari Districts,

out of which, the length of bridge is 1.1 kilometers. While so, a small

section of 700 meters will pass through the agricultural land of the

petitioner and only the petitioner is objecting for acquisition. The

local people are facing a lot of problems for lack of bridge and to

mitigate their risk in travelling through ferry the immediate

construction of the bridge is necessary. It would connect Kakinda -

Amalapuram - Narsapuram road and provide fast transportation.

Hence the writ petition may be dismissed.

4. The respondents 8 and 9 filed counter in similar lines of

respondents 6 and 7 and opposed the writ petition.

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5. It may be noted that unofficial respondents 10 to 12 got

impleaded themselves as per order dated 21.03.2022 in I.A.No.1 of

2022 and filed vacate stay petition.

(a) Respondents 10 to 12 opposed the new alignment. Their

case is that they owned lands in Sy.Nos.665, 673, 674, 677 and 748 of

Gudimellanka Village. They are all small and marginal farmers and

eking out their livelihood by cultivation. The petitioner is concerned,

his lands are include at serial Nos.25, 26, 28 and 29 of 3A notification.

He is cultivating salt water aquaculture in his land without obtaining

any permission. He sought for change of alignment. However, the

land owners under new alignment did not agree for change of

alignment. The land in Sy.Nos. 250 and 748 are not government lands

and they are patta lands. The alignment originally made by the

respondent authorities was after a thorough study by the experts in the

field with professional standards of high order. Hence there is no

need to change the alignment. The writ petition is liable to be

dismissed.

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6. Heard arguments of Sri V.V Satish, learned counsel for the

petitioner; Sri N. Harinath, learned Assistant Solicitor General

representing respondents 1 to 4; Sri S.S. Varma, leaned standing

counsel representing respondent 5; Sri P. Veera Reddy, learned Senior

Counsel representing learned Government Pleader for Roads &

Buildings for respondents 6 and 7; learned Government Pleader for

Land Acquisition representing respondent No.8; learned Government

Pleader for Revenue representing Respondent No.9 and Ms.

Nimmagadda Revathi, learned counsel for respondents 10 to 12.

7. The points for consideration is whether there are merits in the

writ petition to allow?

8. POINT: Both parties have reiterated respective pleadings in their

arguments. While it is the argument of the petitioner that by din't of

the existing alignment, his agriculture in an extent of Ac.3.00 acres

will be effected and the water tanks existing in his lands will also be

effected and when he brought this fact to the knowledge of the

respondent authorities, the 3rd respondent agreed to review the

alignment and instructed the 7th respondent to take steps and 7th

respondent in turn requested the 8th respondent to consider the same ::10::

and take steps to acquire lands in the new survey numbers to

effectuate the change in alignment. However, the new alignment was

not accepted by the respondents 3 to 9 on the flimsy ground that the

owners of the lands covered by new survey numbers are not willing to

part with their lands. It is argued that the 1st respondent so far has not

passed any order rejecting the request of the petitioner for change in

the alignment, meaning thereby the petitioner's request is still pending

with the highest authority and as such the other respondents cannot

proceed with the project work in the meanwhile. It is further argued

that the new alignment is cost effective, inasmuch as, the original

alignment is in the shape of a curve, whereas, the new alignment if

adopted will take the shape of a straight line and thereby reduce the

distance by one kilometer and also corresponding expenditure.

Further, in the modified alignment, only 10 survey numbers will have

to be included. Out of them, 4 survey numbers i.e., Sy.Nos.249, 250,

251 and 748 are government lands and one survey number i.e.,

Sy.No.664 belongs to the petitioner which he will part with.

Therefore, the respondents have to acquire the land covered by the

remaining 5 survey numbers only which is not a daunting task.

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9. In oppugnation, the arguments of the official respondents are

that in order to construct Narsapuram Bypass road to connect East and

West Godavari Districts and also with an avowed object to construct a

road bridge on Vasista, the branch of river Godavari, the project was

undertaken with an outlay of Rs.450 Crores. The total distance is

about 23 kilometers covering the East Godavari and west Godavari

districts, out of which the length of the bridge over Vasista is 1.1

kilometers. A small section of 700 meters of the road passes through

the agricultural land of the petitioner. The road-cum-bridge project is

multipurpose project i.e., to connect the Sakinetipalli and Narsapuram

by a bridge, as hitherto, the people are ferrying in between by

undertaking risks and to connect Kakinada-Amalapuram-

Narsapuram road to provide fast transportation. The petitioner alone

objected the said project on an untenable ground that the water body

in his land will be effected and thereby agriculture to an extent of

Ac.3.00 cents will also be effected. In fact, in two tanks he is doing

aquaculture and there is no water for irrigation. It is further argued by

the respondents that the contention of the petitioner that the existing

alignment is a curved one and if new alignment is accepted it will be

in a straight line and thereby the distance will be reduced by one ::12::

kilometer is totally wrong. The excess distance in the present

alignment is only 96 meters when compared to the proposed

alignment. However, if the proposed alignment is accepted, about

more than 33 small and marginal farmers will lose their lands. Hence

they raised objection and refused to part with their small extents of

land which is the only source of their livelihood. On the other hand,

the petitioner is a big farmer as he owns more than Ac.12.00 cents and

about Ac.3.00 cents may be effected due to the present alignment.

Considering all these aspects, the respondent authorities have rejected

the request of the petitioner and confirmed the existing alignment.

10. Learned Senior Counsel Sri P.Veera Reddy for respondents 6

and 7 would argue that the alignment was made by the experts in the

field after a scientific survey and therefore this Court may not disturb

the same on the ground that the petitioner raised some untenable

objection. He placed reliance on Marella Marithi Prasada Rao v.

Union of India1 to argue that the plenary jurisdiction under Article

226 will not be exercised by the Court to upturn the policy decisions

of the Government based on scientific expertise, which the Court

(2017) 2 ALD 704 ::13::

lacks. It is further argued that by virtue of new alignment a number of

small and marginal farmers will be deprived of their livelihood.

11. Ms. Nimmagadda Revathi, learned counsel for respondents 10

to 12 would argue that if new alignment were to be adopted, more

than 33 small and marginal farmers will be deprived of their

livelihood and on the other hand, by virtue of the present alignment,

the petitioner alone will be effected and he is not a small farmer, as he

is having about Ac.12.00 cents of land. She thus prayed to dismiss the

writ petition.

12. I gave my anxious consideration to the above pleadings,

documents and above divergent arguments submitted.

13. Facts not in dispute are that a project was envisaged by

respondent authorities with an avowed object of widening the national

highway from Dindi through Gudimellanka of East Godavari District

in Andhra Pradesh in order to reduce the heavy traffic plying in this

stretch and also to form a bypass to Narsapuram and to construct a

road bridge on the Vasista, the branch of river Godavari and to

connect the existing Kakinada-Amalapuram-Narsapuram State

Highway Road on East Godavari to West Godavari side. Thus the ::14::

total project comprises of road and bridge at a stretch of 23.2

kilometers touching East and West Godavari districts, of which, the

length of the bridge is 1.1 kilometers on Vasista and total outlay is

stated to be Rs.450 croes. It is a further admitted fact that since long,

people have been dangerously commuting between Sakinetipalli and

Narsapuram mainly through ferries on Vasista, probably due to the

fact that the stream-way is the shorter way than the Chinchinada-Dindi

bridge.

14. Be that it may, as per Section-3A notification, a copy of which

is filed along with the writ petition, petitioner's lands situated in

Gudimellanka Village in Malkipuram Mandal are notified under Serial

No.25 to 29 along with other lands. These lands are required for the

widening of National Highway-216 from Dindi in East Godavari

District from KM 126.1 to KM 10.8. As can be seen from the copy of

representation dated 05.07.2021 submitted by the petitioner to

Tahsildar, Malikpuram, the petitioner's claim is that he has lands in

Sy.No.654, 656 which are notified and in those lands water tanks are

existing and if NH line passes through the said lands, the water tanks

and agriculture will be effected. The Tahsildar, Malkipuram

submitted a report to the 8th respondent stating that there are two tanks ::15::

in Sy.No.656 and Coconut garden is there in Sy.No.654 and the

existing alignment would pass through some extent of the tanks in

Sy.No.656 and some extent in Sy.No.654. In that context, the 7th

respondent has addressed a letter dt: 01.11.2021 to the 8th respondent

stating that the 3rd respondent after conducting a review, has agreed in

principle for minor modification in the approved alignment in the

design chainage from 18.200 KM to 19.900 KM subject to condition

that if the new land losers have no objection to part with their lands

for the development of the road work. He requested 8th respondent to

take necessary steps for acquisition. The 8th respondent in turn

addressed letter in Ref.B/528/2021, dt: 05.11.2021 to the Tahsildar,

Malkipuram to enquire into the matter and contact the land owners

who will be effected due to the newly added survey numbers along

with old survey numbers of Ramrajulanka, Gudimellanka villages of

Malkipuram Mandal and obtain an undertaking that they do not have

any objection to give their lands to the extent required for the

development of the road work. Pursuant thereof, it appears, the

Tahsildar, Malkipuram conducted a field survey in respect of the

newly added survey numbers along with old survey numbers of

Ramarajulanka and Gudimellanka villages and submitted report to the ::16::

8th respondent vide his letter in Ref.A/889/2021, dt: 22.11.2021. A

perusal of the aforesaid letter, a copy of which is filed by the

respondents 6 and 7 along with their counter shows that there are more

than 33 small and marginal farmers whose lands are included as per

the new alignment and all of them made a representation before the

Tahsildar that the new alignment effects their livelihood and requested

to withdraw the same. The Tahsildar submitted the list of the farmers,

their extents and survey numbers in tabular form. Apart from it, on

the instructions of the 8th respondent, the Tahsildar seems to have

made a field survey in respect of the lands of the petitioner which are

effected by virtue of the existing alignment. He submitted a report

vide Ref.A/889/2021, dt: 10.12.2021, a copy of which is filed by the

respondents 6 and 7 along with their counter. It shows that the

Tahsildar found that the cattle of the petitioner and neighbours are not

depending on the existing water tank which is in an extent of Ac.00.50

cents situated in RS No.656 in Gudimellanka Village. He further

stated that the water tank is not an irrigation source to the lands of the

petitioner and other surrounding ryots. He further reported that the

petitioner is doing aquaculture in an extent of Ac.2.80 cents in RS

No.656 in Gudimellanka village.

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15. Thus the above correspondence would make it clear that due to

the existing alignment, petitioner alone would suffer to an extent of

Ac.3.00 cents. However, if the alignment is changed, more than 33

farmers who own small extents of land and who solely depend on

agriculture will suffer. Further, the petitioner is not a small farmer

and he owns about Ac.12.00 cents of land. The water body claimed

by him to be in existence in his land is proved to be wrong. He is

doing aquaculture in those lands since the year 2016. His another plea

that the existing alignment is in a curved manner and the new

alignment, if approved, will be like a straight line and thereby reduce

the distance by one kilometer is also proved to be wrong by the sketch

filed by him along with material papers. As per the sketch, the length

of original alignment is 1854.4655 meters whereas, as per the new

alignment, its length is 1758.8292 meters. So the original alignment is

only 96 meters more than the new alignment. In that view, there will

not be any substantial cost reduction in the new alignment. On the

other hand, if new alignment were to be adopted, a number of small

and marginal farmers will be adversely effected. The petitioner has

not disputed the above fact position. However, his only contention is

as if his representation is still pending with the higher authorities and ::18::

in the meanwhile the respondents cannot take possession of his lands

to proceed with the project. This is a far fetching contention in my

view. So, going by the facts, the contention of petitioner is untenable.

16. Coming to legal angle, it is true that like the Land Acquisition

Act, 1894, the National Highways Act, 1956 is also an expropriatory

law which is primarily intended to acquire the private properties under

the doctrine of eminent domain. The constitutional validity of such

legislation mainly rests on the objects it sought to achieve i.e., public

interest, public purpose and larger public welfare. When the

acquisition through such law is for larger public purpose and welfare,

the same will withstand the judicial review despite the fact that in the

process, an individual or a group of people suffer due to wresting of

their properties, of course on payment of compensation (vide

Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning &

Weaving Co., Ltd.,2).

17. It should be noted that after 44th amendment of the Constitution

of India in 1978, the right to property became a constitutional right

being removed from Fundamental Rights under Chapter-III. In State

AIR 1954 119 ::19::

of Maharashtra v. Chandraban3 the Apex Court held that after the

44th amendment, property right is ceased to be a fundamental right

under the Constitution and considered as legal as well as human right.

Thus, if the petitioner is provided with appropriate compensation, he

cannot challenge the acquisition.

18. Be that it may, the grounds shown for exclusion of petitioner's

land from acquisition are not formidable enough to exempt his land

from acquisition. Moreover, it is not before making honest efforts that

the respondent authorities struck to the original alignment. The

reasons shown by them are obvious and convincing too to the logical

and judicial conscience. The new alignment at best may reduce the

distance by 96 meters only. However, thereby more than 33 small and

marginal farmers will be adversely effected and deprived of their

livelihood. In a case of this nature, it is the cardinal principle that

individual interest must yield to societal interest. In Ramniklal N

Bhutta v. State of Maharashtra and others4 the Apex Court has

expounded the principle that the Courts must weigh the public interest

AIR 1983 SC 803

(1997) 1 SCC 134 ::20::

vis-a-vis the private interest while exercising the powers under Article

226 of Constitution of India. It observed thus

"10.xxxx. 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 interest coalesce. They are very often one and the same. Even in a 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 lump sum 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 (emphasis supplied). 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."

19. There can be another reason also to discard petitioner's request.

As rightly argued by learned Senior Counsel Sri P. Veera Reddy, the

alignment was made by a professionally managed statutory body ::21::

having expertise in the field of Highway Development and

Maintenance. This Court under its plenary jurisdiction cannot sit in

appeal over such acts without possessing requisite scientific skills and

expertise with it. In Marella Marithi Prasad Rao's case (1 supra)

the division bench of Common High Court of Andhra Pradesh has

observed thus:

"8. While exercising jurisdiction under Article 226 of this Court would not sit in appeal over the decisions of the executive, more so where examination, of the technical matters in issue, require expertise of a high order. As this Court lacks the required expertise, to decide questions such as whether the existing alignment is proper, or an alternative alignment would serve larger public interest, it must necessarily defer to the wisdom of the experts in the field, and not take upon itself the task of determining whether a road should be laid in one particular alignment or another. While loss to the public exchequer is undoubtedly one of the considerations which the authorities are bound to bear in mind, while deciding on the nature of alignment of a road, there are several other factors which may also weigh in their decision to prescribe a particular alignment for the proposed national highway.

9. We must express our inability to agree with the submission of the learned Counsel for the petitioner that we should undertake the task of determining whether the existing alignment should be continued or not, as we lack the required expertise. While we see no reason to sit in judgment over the decision of the respondents ::22::

in prescribing a particular road alignment, we cannot also ignore the petitioner's claims that the alternate alignment, through the donka, would save public exchequer of Rs. 70.00 crores. We have no reason to doubt that these aspects shall be borne in mind by the authorities concerned in taking a decision whether the proposed alignment should be continued or changed. Any decision, which the respondents may finally take in this regard, can only be after the objections of those, whose lands are being acquired under the Act, are considered in accordance with Section 3C of the Act. Subject to the above observations, the writ petition fails, and is, accordingly dismissed. The miscellaneous petitions pending, if any, shall also stand closed. There shall be no order as to costs."

20. In the case on hand, running the risk of pleonasm it must be

said, the authorities have already considered the representation of the

petitioner and for valid reasons did not accept. Therefore, I find no

merits in the petitioner's case. Accordingly, the writ petition is

dismissed without costs.

As a sequel, interlocutory applications, if any pending, shall

stand closed.

________________________ U. DURGA PRASAD RAO, J

10.10.2022 KRK ::23::

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

WRIT PETITION No.28273 of 2021

10th October, 2022

krk