Andhra Pradesh High Court - Amravati

Vanacharla Venkata Krishna Rao vs Union Of India on 21 September, 2023

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      * HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI

                 WRIT PETITION No.34565 of 2022
Between:

Vanacharla Venkata Krishna Rao
& 19 others                                    ....   Petitioners
                                 And

Union of India, represented by its Secretary
to Government of India, Ministry of Road,
Transport and Highways, New Delhi
& 4 others                                     .... Respondents

DATE OF ORDER PRONOUNCED: 21-9-2023


THE HON'BLE SRI JUSTICE NINALA JAYASURYA


1. Whether Reporters of Local newspapers            Yes/No
   may be allowed to see the Judgments?

2. Whether the copies of judgment may be            Yes/No
   Marked to Law Reporters/Journals.

3. Whether Their ladyship/Lordship wish             Yes/No
   to see the fair copy of the Judgment?


                                  ________________________
                                  JUSTICE NAINALA JAYASURYA
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            *THE HON'BLE SRI JUSTICE NINALA JAYASURYA

              + WRIT PETITION No.34565 of 2022

                        %Date: 21.09.2023

# Vanacharla Venkata Krishna Rao
& 19 others                                       ....      Petitioners

                                 And

$ Union of India, represented by its
Secretary to Government of India,
Ministry of Road, Transport and
Highways, New Delhi & 4 others                      .... Respondents

! Counsel for the Petitioners   : M/s Sita Ram Chaparla

^ Counsel for Respondents       : Mr.N.Harinath, Deputy Solicitor
                                  General of India

                                  Mr.S.S.Varma, Learned Standing
                                  Counsel for N.H.A.I

                                  Learned Government Pleader for
                                  Land Acquisition


< GIST : --

> HEAD NOTE : --

? Cases referred : --
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        IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI

        THE HON'BLE SRI JUSTICE NINALA JAYASURYA

                WRIT PETITION No.34565 of 2022
Between:-

Vanacharla Venkata Krishna Rao
& 19 others                                      ....            Petitioners
                                     And

Union of India, represented by its Secretary
to Government of India, Ministry of Road,
Transport and Highways, New Delhi
& 4 others                                   ....               Respondents

Counsel for the Petitioners      :         M/s. Sita Ram Chaparla

Counsel for the respondents      :         Mr.N.Harinath, Deputy Solicitor
                                           General of India

                                           Mr.S.S.Varma, Learned Standing
                                           Counsel for N.H.A.I

                                           Learned Government Pleader for
                                           Land Acquisition
ORDER:

The present Writ Petition is filed questioning the Notification

dated 18.04.2018 in SO No.1701/E) issued by respondent Nos.1 & 2

under Section 3(A)(1) of National Highways Act, 1956; further

Notification dated 07.12.2018 in SO No.6078(E) issued under Section

3D(1) of same statute; further Notification dated 18.01.2019 issued

under Section 3G(3) of the same statute by the 5th respondent; further

Notification dated 11.10.2022 in NHAI/PIU-RJY/LA/N.H216A/Kaikaram

Flyover under Section 3G(3) of the same statute by the 5th respondent

and also Order dated 18.06.2018 in ROC NHAI-16/Flyover/2018/1

passed by the 5th respondent, as being illegal, irregular, irrational,

unconstitutional and violative of provisions of National Highways Act,

1956 and offends Articles 14, 21 and 300-A of the Constitution of India.

2. Heard Mr.Sita Ram Chaparla, Learned Counsel for the

petitioners. Also heard Mr.S.S.Varma, Learned Standing Counsel

appearing on behalf of the respondent Nos.3 & 4 and the Learned

Assistant Government Pleader for Land Acquisition representing for

respondent No.5.

3. The relevant facts germane for consideration and the disposal of

the Writ Petition may be stated thus:-

The 1st respondent issued a Notification under Section 3A of

National Highways Act, 1956 (hereinafter referred to as „the Act‟)

dated 18.4.2018 for acquisition of the lands mentioned therein for

public purpose i.e., Building (Construction of Flyovers/ VUPs/ Widening/

Four Laning/Six Laning etc.,) Maintenance, Management and Operation

of NH 16/216A in the stretch of land from Km 1005.700 to 1007.450

(Gundugolanu - Rajamahendravaram Section) in the District of West

Godavari. Pursuant to the said Notification, objections under Section 3C

of the Act, were called for and on 7.5.2018, the petitioners and others

filed their objections. The 5th respondent after considering the

objections addressed a reply dated 8.6.2018. Subsequently, on

7.12.2018, a Notification under Section 3D of the said Act was

published in the Government of India Gazette. Thereafter, a Notice

under Section 3G (3) of the said Act was published on 18.1.2019.

However, subsequently another Notification issued under Section 3G

(3) of the Act dated 11.10.2022 was published in the News papers on

15.10.2022, wherein it was inter alia mentioned that the extent of land

was reduced from 60 meters width to 46 meters. Under the said

circumstances, the present Writ Petition came to be filed on

various grounds.

4. The Learned Counsel for the petitioners made his submissions

referring to the contentions/grounds formulated in the Writ Petition

contending that the comprehensive objections submitted by the

petitioners pertaining to the Notice under Section 3C of the Act were

not considered in a proper perspective. He contends that there is no

requirement of acquisition of the subject matter lands in view of laying

of Gundugolanu - Rajamahendravaram Express Highway connecting

Chennai - Kolkata National Highway and due to the same 90% of the

traffic was diverted and therefore the purpose for which the

construction of the Flyover was proposed vide Notification dated

18.4.2018, would no longer remain. The Learned Counsel also submits

that as a consequence, the impugned 3G Notification dated 11.10.2022

is not sustainable. Without prejudice, he also contends that it is not

permissible to modify the original extent and issue another Notification

under Section 3G of the Act. It is his contention that if the respondents

takes any decision to reduce/modify the extent of lands etc., sought to

be acquired through the original Notification dated 18.4.2018, they

should initiate fresh land acquisition proceedings by issuing a

Notification under Section 3-A of the Act to enable the petitioners to file

their objections to the changed extents and other aspects inter alia

relating to change of alignment etc., In essence his contention is that

the entire proceedings are to be withdrawn and fresh proceedings are

required to be initiated.

5. The Learned Standing Counsel for N.H.A.I on the other hand

submits that the proposed acquisition of lands of the petitioners was

intended for construction of Flyover for public purpose to avoid road

accidents and to take effective steps for improvement of road safety.

He submits that though originally the proposal was for acquisition of

60 meters width of land for Flyover and a Notification to that effect was

issued for acquisition of lands, later, the same was reduced in view of

the decision dated 13.7.2020 taken by Competent Authority to reduce

the ROW (Right of way) of the Flyover to 46 meters and the land

required for the same was worked out as 1.7038 Hectares only.

He submits that, accordingly the 3rd respondent has submitted the

Revised Land Plan Schedules vide Letter dated 31.12.2021 to the

5th respondent to prepare Revised Sub-Division Record for acquisition

of the required lands. He submits that the decision to reduce the

construction of Flyover at Kaikaram Village would reduce the cost of

construction and acquisition of lands to that extent and the petitioners

would also get benefited by virtue of the reduction in the extent of

lands sought to be acquired from them. While stating that it saves

public exchequer and no prejudice would be caused to the petitioners

by virtue of the reduction of the extents of lands, the Learned Standing

Counsel would contend that the Writ Petition is devoid of merits and

liable to be dismissed.

6. In reply to the contentions, the Learned Counsel for the

petitioners vehemently submits that the reduction in the extents of the

lands sought to be acquired from the petitioners would not in any way

benefit them as the remaining extents after reduction would not serve

any purpose and virtually will become useless. He accordingly prays for

allowing the Writ Petition.

7. This Court has considered the submissions made and perused

the material on record. In so far as the factual aspects of the case are

concerned, there is no dispute with regard to issuance of the relevant

Notifications under the provisions of the Act. It is also not in dispute

that the petitioners have submitted their objections to the proposed

acquisition and as seen from the record and as noted from the

pleadings, their objections were rejected and some of the petitioners

filed W.P.No.4049 of 2019 challenging the Notification dated 18.4.2018.

Be that as it may.

8. The crucial and legal aspect involved in the present Writ Petition

is regarding issuance of 3G Notification dated 11.10.2022, wherein the

extent of land sought to be acquired was reduced and whether it is

permissible in Law?

9. In the Counter Affidavit except mentioning the justification for

reduction of the extent of land, nothing is traversed regarding the

power or authority conferred on the authorities concerned to

reduce/modify the extent notified under Section 3A of the Act, which

would in a way amounts to partial withdrawal of the acquisition

proceedings.

10. Though the Learned Standing Counsel for N.H.A.I tried to

impress upon this Court that the proposed extents can be reduced and

authorities are conferred with the power in that regard by relying on

the Judgment of the erstwhile High Court of Andhra Pradesh in Vinod

Chandra and Ors. vs. State of Andhra Pradesh and Ors 1 ,

the same is not applicable since it is arising under the provisions of the

Land Acquisition Act, 1894, whereas the case on hand is under the

National Highways Act, a special enactment.

11. At this juncture, it may be relevant to refer to the relevant

provisions under the Land Acquisition Act, 1894 and the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013.

Section 48 of the Land Acquisition Act, 1894 reads as follows:-

48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. -

(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

W.A.No.774 of 1997 and W.P.No.13766 of 1995 dated 11.9.1997

(3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section. 49. Acquisition of part of house or building.

Section 93 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 reads as follows:-

93. Completion of acquisition not compulsory, but compensation to be awarded when not completed.-

(1) The appropriate Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the appropriate Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

12. Thus, under the above said enactments specific power was

conferred on the Government to withdraw from the acquisition

proceedings, in the event, it was found that the land is not required for

the purpose for which it was sought to be acquired, subject to the

other statutory conditions.

13. Whereas under National Highways Act, there is no such enabling

provision or power, which vests the concerned Government or the

authorities to withdraw from the acquisition proceedings, be it partial or

in whole or reduce the extent sought to be acquired like in the present

case. It may be relevant to state here that on publication of declaration

under Section 3D(2) of the Act, the land vests absolutely in the Central

Government free from all encumbrances. For ready reference, the

Section 3D which deals with Declaration of acquisition may be

extracted hereunder:-

"3D(1) - Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub- section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A.

3D(2) - On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances."

14. In the present case, Section 3D publication with reference to the

extent of land originally sought to be acquired vide 3A Notification

dated 18.4.2018 was published on 7.12.2018. Thus, the entire extents

of lands as proposed in the 3A Notification stands vested with the

Central Government by virtue of the provisions of the Act. At this

juncture, it may be appropriate to mention here that though some of

the petitioners filed W.P.No.4049 of 2019, it appears that they failed to

secure interim orders and thereby the authorities proceeded with

determination of compensation under Section 3G of the Act initially,

in respect of the entire original extent of land vide Notification dated

18.1.2019. But, no Award was passed pursuant to the said 3G

Notification dated 18.1.2019 for whatsoever reasons and subsequently

a fresh Notification under Section 3G of the Act dated 11.10.2022, with

reduced extents was issued which is impugned.

15. This Court having examined the matter with reference to the

provisions of the Land Acquisition Act, 1894 and the latest Act, 2013 as

also the provisions of the National Highways Act, 1956 is of the

considered opinion that in the absence of any specific provision

conferred power on the concerned Government/Authorities to withdraw

or reduce the extents of land sought to be acquired cannot issue any

proceedings under Section 3G of the Act reducing the extents, more

particularly, after the said land was vested with the Central

Government under Section 3D of the Act. The charging Section 3G only

provides for determination of amount payable as compensation and the

same would not envisage reduction of extent of land acquired or

already vested within the Government.

16. Stuck with a Fait accompli situation like in the present case,

National Highway Authority of India, through Project Director filed a

Writ Petition against Union of India, through Secretary Ministry of Road

Transport and Highways, New Delhi [2023:CGHC:1713] seeking a

direction to the Union of India to initiate proceedings for de-notification

of the land which stood acquired by it by publication of a Notification

under National Highways Act, 1956 under Section 3D. A Learned Judge

of High Court of Chhattisgarh at Bilaspur dealt with the provisions of

National Highways Act vis-à-vis provisions of the Land Acquisition Act,

1894 and the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 and was not

inclined to grant relief sought for by the National Highway Authority of

India and dismissed the Writ Petition by an Order dated 17.1.2023.

The relevant portion of which reads as follows:-

"14. It has been the settled position of law by a catena of decisions by the Hon'ble Supreme Court wherein it has been time and again reiterated that in the course of exercising of the writ powers by the High Court under Article 226, it would not create a law or exercise powers, which are otherwise not enshrined under the provisions of law. Exercising of such powers, which are otherwise not prescribed would be inconsistent to the substantive law itself. Particularly in the instant case where the Land Acquisition Act of 1894 and the subsequent Act of 2013 both having a clause for withdrawal from the acquisition and the subject Act in the present writ petition i.e. the National Highways Act, 1956 not having such a provision, this Court is of the opinion that there seems to be a deliberate exclusion by the Law Makers while enacting the said law. Hence under the circumstances, it would not be fit for this Court in exercise of its writ powers to grant a relief that the petitioner in WPC No. 1442 of 2018 has sought and the writ petition of the petitioner-NHAI, therefore deserves to be and is accordingly rejected."

17. Be that as it may. This Court in the light of the conclusions

arrived at supra, is of the considered opinion that the respondents have

no power to reduce the extent of land and determine the compensation

in respect of the same. Therefore, the Notification dated 11.10.2022 is

declared as illegal, lacking in statutory power or authority and is

accordingly set aside. The petitioners by virtue of the events

subsequent to filing of W.P.No.4049 of 2019 are not entitled for the

other reliefs.

18. Accordingly, the Writ Petition is partly allowed. The authorities

shall take necessary action in the matter for issuing fresh Notification

under Section 3G of the Act in consonance with the Notification issued

under Section 3A of the Act and determine the compensation payable