Bhimavarapu Giridhar Kumar Reddy vs The Union Of India
2023 Latest Caselaw 4969 AP

IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
                                &
         HON'BLE MR. JUSTICE R.RAGHUNANDAN RAO

                       W.A.No.601 of 2023

Bhimavarapu Giridhar Kumar Reddy,
S/o.Krishna Reddy, Aged about 73 years,
R/o.H.No.59-7-7, Ramchandra Nagar,
Vijayawada, Krishna District,
Andhra Pradesh - 520008.
                                                         ... Appellant

            Versus

The Union of India,
Rep. by its Secretary,
Department of Road, Transport & Highways,
Room No.501, Transport Bhavan, No.1,
Parliament Street, New Delhi,
India - 110001 and 3 Others.
                                                    ... Respondents


Counsel for the Appellant   : Mr. Ghanta Rama Rao,
                              Senior Counsel on behalf of
                              Mr. Ghanta Sridhar

Counsel for the respondents : Mr. N. Harinath
                              Deputy Solicitor General
                              - R1

                             Mr. P. Veera Reddy,
                             Senior Counsel on behalf of
                             Mr. S.S. Varma,
                             Standing Counsel for NHAI
                             - R2 & R3

                             G.P. for Land Acquisition
                             - R4
                                                            HCJ & RRR, J.

Dt.:13.10.2023

PER DHIRAJ SINGH THAKUR, CJ

The present appeal has been preferred under Clause 15 of the

Letters Patent against the judgment and order dated 16.03.2023 in

W.P.No.10795 of 2019 whereby the writ petition filed by the

petitioner/appellant herein was dismissed.

2. Briefly stated, the material facts are as under:

The petitioner is the owner of the land measuring Ac.6.15

Cents out of which land measuring Ac.1.17 Cents become the

subject matter of acquisition situate in Konthanapadu Village,

Kankipadu Mandal, Krishna District on the National Highway

leading from Vijayawada to Machilipatnam. The acquisition was

necessitated on account of widening of the existing two lane

national highway into a four lane national highway.

2.2 Vide notification dated 02.01.2019 issued by the Government

of India, Ministry of Road, Transport and Highways, in exercise of

the powers conferred under sub-section (1) of Section 3A of the

National Highways Act, 1956, the Central Government declared its

intention to acquire the land inter alia land falling in Sy.No.40/1 in

Konthanapadu Village measuring 6880 Sq.Mts.

HCJ & RRR, J.

2.3 The notification was duly published in news papers on

11.01.2019 and called for objections to be made to the competent

authority from any person who intended to object to the use of such

land for the purposes mentioned in the said notification.

2.4 Objections were filed by the petitioner before the competent

authority. Some of the objections raised by the petitioner before the

competent authority and the answers thereto are reproduced

hereunder:

Objections raised by the Answers given by the National petitioner Highway Authorities That the aforesaid The statement that the said form of notification, whereunder design also endangers public life and 6880 Sq.mts. of his land property is not justified as the design situated in Sy.No.40/1 of was done in accordance with IRC Konthanapadu Village of specifications based on the Kankipadu Mandal of topography and geometrics. The Krishna District, is highly alignment has been finalized based arbitrary, irrational and the on the technical feasibility studies said form of design also conducted and geometric endangers public life and improvements suggested to the property. existing by the DPR consultants for the design speed. And vide 3A Gazette Notification published earlier vide S.O.2363(E), dt:

01.10.2008 including 40500 Sq.mts.

of land in Konatanapadu Village which includes 6950 Sq.mts. of land in R.S.No.40/1.

That the aforesaid extent of As per the report of Tahsildar, his land is painfully malafide, Kankipadu, the land in R.S.No.40 of with foul play adopted by the Konatanapadu Village was once deputed survey team who again demarcated in the presence of have selfishly colluded with the landholders on 23.02.2017 and some rich persons for exact extent of the land being wrongful gain, to save their proposed to be acquired i.e., 6880 HCJ & RRR, J.

property and in turn some Sq.mts. is also shown to the writ farmers of small origin like petitioner. The same is being me explained to him with FMB copy also.

The aforesaid deputed survey The statement of the applicant is team have deliberately false as the alignment has been designed three curve bends finalized based on the technical; at the location of his land and feasibility studies conducted and others, without any geometric improvements suggested necessity, purposefully to to the existing by the DPR save the lands of others consultants for the design speed. which are opposite to them, thus pushing the alleged required land more into his land and some other lands.

This obviously to save the properties which are lying opposite to them. It can be seen with a naked eye that the proposed four-way lane is purposefully given bends to save the properties, opposite to their property of the road to his north-east.

He has efforts to rationalize As seen from the location plan, there the survey, with regard to the is no curve at the location as alleged design of the proposed 4-way is not true and without construction lane, by engaging private of the RHS carriageway the section survey experts and the will be safety hazard for the road survey sketch relevant to the users.

topography at his land which is filed herewith, reveals the malafide and illegal survey done by the above said deputed survey team and if the road proposed to make it a four-way lane can be more straight would avert accidents, save public life, damage to the vehicles and properties and also can save the fuel consumption.

Therefore, the proposed land with sought specified extent of land is against public HCJ & RRR, J.

interests.

These objectors filed The Tahsildar in his letter objections saying that the Rc.A/2017, dt:31.03.2017 submitted survey number on their land Sub-Division Record in respect of was R.S.No.40, for an extent R.S.No.40/1 of Konthanapadu village of Ac. 6.15 cents and not in of Kankipadu Mandal. The R.S.No.40 R.S.No.40/1 and the 3A total extent is Ac.6.15 cents is sub- notification was issued for divided notionally into R.S.No.40/1 R.S.No.40/1. for an extent of Ac. 1.70 cents and 40/2 for an extent of Ac.4.45 cents.

The same was explained to him with copy of FMB also.

2.5 After objections had been filed, it appears that a

representation dated 11.02.2019 was filed by the petitioner in

which it was stated that he had by mistake mentioned the survey

number in which his land was situated as 40/1 instead of 40 and

therefore claimed that there was defect in the gazette notification.

For facility of reference, the relevant portion of the

representation dated 11.02.2019 is reproduced hereunder:

"Please refer to my written objections submitted to your

authority on 23.01.2019 with regard to publication of notification

in Sakshi Telugu News Daily on 11.01.2019 regarding acquisition

of land situated in Konthanapadu village of Kankipadu Mandal of

Krishna District in Sy.No.40/1 under the National Highway Act,

1956.

In my above said written objections we have mentioned the

survey number of our land as 40/1, referring to the above said HCJ & RRR, J.

publication. But after verification, I have realised that my land is

in Survey No.40 and not Survey No.40/1.

I therefore request you to ignore the mistake in mentioning

my land as Survey No.40/1 instead of Survey No.40. I have learnt

that the said mentioned Survey No.40/1 is a defect in the gazette

notification."

2.6 The objections and the representations thereafter were

considered by the competent authority by virtue of order dated

08.05.2019. Finally, a notification under sub-section (2) of Section

3D of the Act was issued by the Central Government dated

27.09.2019 whereby the land in question belonging to the

petitioner falling under Sy.No.40/1 was declared to have vested

absolutely in the Central Government free from all encumbrances.

2.7 Being aggrieved of the acquisition proceedings, the petitioner

filed Writ Petition No.10795 of 2019 where the main ground taken

was that what was sought to be acquired was the land falling under

Sy.No.40/1 whereas the petitioner owned land which was falling

under Sy.No.40 and therefore the acquisition proceedings initiated

by virtue of notification dated 02.01.2019 would not lead to deprive

the petitioner of his right to hold and possess the property

measuring Ac.1.17 Cents, the writ petition however was dismissed HCJ & RRR, J.

by virtue of judgment and order impugned dated 16.03.2023 and

hence the present appeal.

3. Learned counsel for the appellant urged that the notification

under Section 3A and the declaration under Section 3D were issued

in respect of land situate in Sy.No.40/1 whereas the land of the

petitioner fell in Sy.No.40 in Village Konthanapadu, Kankipadu

Mandal, Krishna District. It was also urged that the authorities had

manipulated the record to show as if there was notional sub-

division of Sy.No.40/1 and Sy.No.40/2 in the year 2017.

4. Reliance was placed upon revenue extract issued in favour of

the appellant as on 25.04.2019 by the Revenue Department

reflecting that the land of the petitioner fell in Sy.No.40 and not in

Sy.No.40/1. It was therefore urged that the respondents if at all

could initiate the process again by issuing a fresh notification by

correctly reflecting the survey number of the petitioner.

5. The 2nd ground that was urged was that the objections raised

by the appellant before the competent authority pursuant to the

issuance of notification under Section 3A were not dealt with in a

correct perspective. It was urged that the allegations of malafides HCJ & RRR, J.

had been casually dealt with and the official respondents had

changed the alignment contrary to the approved plan by providing

for a curve/bend which resulted in more land being acquired

belonging to the petitioner and consequently saving the land

belonging to other land holders.

6. It was stated that although in the decision rendered by the

competent authority on the objections raised by the appellant, it

was held that there is no curve at the location as alleged by the

appellant yet the report of the Commissioner appointed by the writ

court suggested clearly that there was in fact a curve near the

petitioner's land. The relevant portion of the report submitted by

the Advocate Commissioner, in this regard, is reproduced

hereunder:

"With regard to the ground position, as to whether the road laid by the NHAI took any intentional curve at the petitioner's land is concerned, after going through the original plan on a broader perspective, it can be seen that the road has a curve of acquisition near the petitioner's land."

7. One thing that is clear from the aforementioned report of the

Commissioner appointed by the Court with reference to the original

plan is that the road had a curve near the petitioner's land. On a

specific query whether the curve provided was intentional or not, HCJ & RRR, J.

the NHAI authorities clearly stated that the original plan was

prepared in the year 2007 and that the same was prepared

according to the norms prepared by higher technical authorities

and that the local authorities/officials had no role to play in the

proposed acquisition plan. The Advocate Commissioner was also

informed that the original master plan was prepared by Scott

Wilson Kirkpatrick India Pvt. Ltd., and the officials of PIU,

Vijayawada, and that the officials were merely implementing the

proposed plan.

8. In the backdrop of the Advocate Commissioner's report,

learned counsel for the appellant vehemently urged that the

decision rendered on the objection by the competent authority that

there was no curve on the spot was belied which would not only

make the decision of the competent authority bad in law but would

render even the subsequent actions of the officials under Section 3D

bad and illegal.

9. The stand of the official respondents on the other hand is that

the land of the petitioner in fact falls under Sy.No.40/1 which was

subdivided as per the record submitted by the Tahsildar vide letter

dated 31.03.2017 in two parts. It was urged that Sy.No.40 HCJ & RRR, J.

constituted of a total Ac.6.15 Cents which came to be divided

notional into Sy.No.40/1 to an extent of Ac.1.17 Cents and

Sy.No.40/2 to an extent of Ac.4.45 Cents. It was urged that the

appellant had absolutely no doubt regarding the fact that the

notification issued in regard to Ac.1.17 Cents pertained to none else

than the petitioner inasmuch as objections had been filed to the

notification under Section 3A by the appellant in the firm belief that

his land fell under Sy.No.40/1.

10. Not only this, it was stated that the appellant all along has

also been admitted the factum of land falling under Sy.No.40/1

inasmuch as in the early round of acquisition of the same land in

the year 2008, objections filed by the appellant to the said

notification had not raised any objection regarding the discrepancy

in the survey number even when the survey number in the 2008

notification was similarly reflected as 40/1.

11. It is not out of place to mention that parties admittedly are ad

idem the litigation in regard to the notification issued in the year

2008, and issuance of a fresh notification on 02.01.2019 in regard

to the same parcels of land.

HCJ & RRR, J.

12. Learned counsel for the respondents would further submit

that there is no intentional curve given on the land of the petitioner

as alleged and that the land had been finalised based on technical

feasibility studies by the consultants and that the allegations of

malafides were totally baseless.

13. Admittedly, the acquisition process started by the Central

Government which included the land of the petitioner was for

purposes of widening the existing national highway from two lane

to a four lane highway. It is not denied that the work on the national

highway has been completed except the small portion belonging to

the petitioner which is a subject matter of dispute in the present

Letters Patent Appeal.

14. It is not denied that the appellant had filed his objections in

terms of Section 3C which were considered and rejected by the

competent authority. All the objections in our opinion had been

appropriately answered.

15. Learned counsel for the appellant had however made an effort

to suggest that the competent authority had not fairly decided the

objection with regard to the factum of existence of a curve which HCJ & RRR, J.

rendered it bad in the eyes of law and contrary to the scheme of the

National Highways Act, 1956, to us is an argument which is

unacceptable.

16. There is no highway, in our opinion, which may not have a

curve or bend at places which may require such a curve. We also

find it difficult to accept that the national highway must always run

as a straight line drawn with the help of a scale. Whether there

should be a curve and the degree of curve depends upon a number

of factors which are determined by experts in the field. In the

present case also, the plans are stated to have been prepared by the

experts. Even the Advocate Commissioner, having visited the spot

and having gone through original plan prepared in the year 2007,

did find there was a curve reflected therein. The officials of the

national highway authority present on spot perhaps were correct in

stating that the construction of the highways was to be executed

directly as per the plans and would not have been in a position to

answer whether the curve was provided to save the land of owners

in the vicinity.

17. In any case, the allegations of bias and mala fides, it is settled

law, has to be specific and levelled against parties by name who HCJ & RRR, J.

ought to be incorporated as respondents. Bald allegations of

malafides cannot be sustained in law. In any case, there was no

material placed by the appellant before the Court which would

suggest that there was a deviation from the original plan which had

been approved by the consultants. If that is so, then the allegation

of malafides would be without any basis.

17.1 At this stage, it would be apt to refer to Apex Court judgment

rendered in the case of Union of India Vs. Kushala Shetty and

Others1, which was also referred to by learned Single Judge while

dismissing the writ petition. It was held:

"25. The plea of the respondents that alignment of the proposed widening of the national highways was manipulated to suit the vested interests sounds attractive but lacks substance and merits rejection because except making a bald assertion; the respondents have neither given particulars of the persons sought to be favoured nor placed any material to prima facie prove that the execution of the project of widening the national highways is actuated by mala fides and, in the absence of proper pleadings and material neither the High Court could nor this Court can make a roving enquiry to fish out some material and draw a dubious conclusion that the decision and actions of the appellants are tainted by mala fides.

28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the

(2011) 12 SCC 69 HCJ & RRR, J.

field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of national highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither has any violation of mandate of the 1956 Act been established nor has the charge of malice in fact been proved. Therefore, the order under challenge cannot be sustained."

18. The second issue is with regard to whether the notification

issued under Section 3A and 3D would be bad and illegal inasmuch

as the land of the petitioner land fell under Sy.No.40 instead of

notification issued for Sy.No.40/1. In our opinion, there is material

on record to suggest that Sy.No.40 has been sub-divided into

Sy.No.40/1 and Sy.No.40/2 to an extent of Ac.1.70 Cents and

Ac.4.45 Cents. In fact, the appellant has all along been clear with HCJ & RRR, J.

regard to the factum of his land falling under Sy.No.40/1 inasmuch

as he had proceeded to raise objections to the notification under

Section 3A on the premise that his land fall under Sy.No.40/1.

19. There also appears to be no doubt in the mind of the appellant

that the land of the appellant abuts the existing national highway

which was sought to be widened by acquiring the land of the

appellant to the extent of Ac.1.17 Cents. Not only this, even the

appellant appears to have filed objections to the earlier notification

issued in the year 2008 in regard to same parcel of land in the list

raising a similar objection as has been raised today in regard to the

notification dated 02.01.2019. Except for filing a representation

dated 11.02.2019, the appellant had consistently been objecting to

the acquisition proceedings believing that the land fell under

Sy.No.40/1 and therefore cannot be permitted to now contend that

the discrepancy in the survey number vitiates the notification

under Section 3A or for that matter the entire acquisition

proceedings.

20. Reliance placed by learned counsel for the appellant on the

Apex Court judgment rendered in the case of Competent Authority HCJ & RRR, J.

Vs. Barangore Jute Factory and Others2 is inapt in the facts and

circumstances of the present case inasmuch as it was never the

case of the appellant either before the learned Single Judge or

before the authorities that the notification issued under Section

3A(1) did not meet the requirement of the said section on account

of the fact that the same had failed to give a brief description of the

property belonging to the petitioner which was sought to be

acquired.

21. Having gone through the judgment and order impugned, we

are unable to persuade ourselves to arrive at a conclusion different

from the one arrived at by the writ court. The present appeal is

found to be without any merit and is accordingly dismissed. No

order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

DHIRAJ SINGH THAKUR, CJ R.RAGHUNANDAN RAO, J kbs

(2005) 13 SCC 477 HCJ & RRR, J.

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE R.RAGHUNANDAN RAO

W.A.No.601 of 2023 (per Dhiraj Singh Thakur, CJ)

Dt: 13.10.2023

kbs