Madras High Court
The Union Of India vs R.Thamaraiselvan on 28 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.A.(MD)No.1991 and 1992 of 2021
?BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.02.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.A.(MD)Nos.1991 and 1992 of 2021
and
C.M.P.(MD)Nos.9099 and 9102 of 2021
W.A.(MD)No.1991 of 2022:-
1.The Union of India, Rep. by its Secretary to Government,
Ministry of Road Transport and Highways,
Transport Bhawan, Parliament Street,
New Delhi-110 001.
2.National Highways Authority of India (NHAI),
Rep. by its Project Director,
H.No.83/1, SBI First Colony Extension,
Bye Pass Road, Madurai - 625 016.
3.M.Muthudayar, Project Director,
National Highways Authority of India,
No.314-E, K.P Road (Near Ayyappankoil),
Parvathipuram, Nagercoil,
Kanyakumari District. ... Appellants
Vs.
1.R.Thamaraiselvan
2.The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Highways and Minor Ports Department,
Secretariat, Chennai - 600 009.
1/15
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W.A.(MD)No.1991 and 1992 of 2021
3.The Authorised Officer cum
Special District Revenue Officer
(Land Acquisition- National Highways),
Door No.17, Observatory Street,
Kanyakumari - 629 001,
Kanyakumari District. ... Respondents
Prayer : Writ Appeal filed under Clause XV of Letters Patent, to allow
the writ appeal by setting aside the order dated 30.04.2021 passed in
W.P.(MD)No.7753 of 2018 on the file of this Court.
For Appellants : Mr.Su.Srinivasan
For Respondents : Mr.Udayakumar,
For Mr.A.Thirumurthy for R1.
Mr.G.V.Vairam Santhosh,
Addl. Government Pleader for R2 & R3.
W.A.(MD)No.1992 of 2022:-
1.The Union of India,
Rep. by its Secretary to Government,
Ministry of Road Transport and Highways,
Transport Bhawan, Parliament Street,
New Delhi-110 001.
2.National Highways Authority of India (NHAI),
Rep. by its Project Director,
H.No.83/1, SBI First Colony Extension,
Bye Pass Road, Madurai - 625 016.
3.M.Muthudayar,
Project Director,
National Highways Authority of India,
No.314-E, K.P Road (Near Ayyappankoil),
Parvathipuram, Nagercoil,
Kanyakumari District. ... Appellants
2/15
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W.A.(MD)No.1991 and 1992 of 2021
Vs.
1.V.Ranjith Shankar
2.The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Highways and Minor Ports Department,
Secretariat, Chennai - 600 009.
3.The Authorised Officer cum Special District
Revenue Officer (Land Acquisition- National Highways),
Door No.17, Observatory Street,
Kanyakumari - 629 001,
Kanyakumari District. ... Respondents
Prayer : Writ Appeal filed under Clause XV of Letters Patent, to allow
the writ appeal by setting aside the order dated 30.04.2021 passed in
W.P.(MD)No. 12172 of 2018 on the file of this Court.
For Appellants : Mr.Su.Srinivasan
For Respondents : Mr.Udayakumar,
For Mr.A.Thirumurthy for R1.
Mr.G.V.Vairam Santhosh,
Addl. Government Pleader for R2 & R3.
COMMON JUDGMENT
One R.Thamaraiselvan and V.Ranjith Shankar filed
W.P.(MD)Nos.7753 and 12172 of 2018 questioning the notification dated
20.11.2017 issued under Section 3A(1) of National Highways Act, 1956
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W.A.(MD)No.1991 and 1992 of 2021
and the consequential notification dated 01.03.2018 issued under Section
3D(1) of the said Act. The lands belonging to the writ petitioners were
included in the said notifications. The acquisition was for forming of
“Road Safety Advocacy Project” in the stretch of land from Km 203.00 to
232.00 of NH-7 (Madurai – Kanyakumari Section) in the district of
Kanyakumari. The writ petitioners contended that the acquisition was
liable to be set aside on the ground of vagueness and for being outside
the scope of the relevant statutory provisions. This argument found
favour with the learned Single Judge who vide order dated 30.04.2021
quashed the impugned notifications insofar as it related to the acquisition
of the lands of the writ petitioners. Challenging the said order, Union of
India as well as National Highways Authority of India have filed these
intra-court appeals.
2.The learned standing counsel for NHAI reiterated all the
contentions set out in the memorandum of grounds of writ appeals and
submitted that the impugned notifications are very much within the four
corners of the statute and that interference with the same was not
warranted. He submitted that since the land owners did not lodge their
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W.A.(MD)No.1991 and 1992 of 2021
objections in time, they lost the right to challenge. Further, when once
the land stood vested with the Government following the publication and
notification under Section 3D(1) of the National Highways Act, 1956, the
right to question the acquisition stood extinguished. He called upon this
Court to liberally construe the words occurring in Section 3A(1) of the
Act. He took us through the statutory scheme underlying the National
Highways Authority of India Act, 1988 and contended that NHAI is
obliged to promote road safety since incidents of accidents occurring in
highways are alarmingly high. That is why, NHAI conceived of such a
project to spread awareness about road safety. According to him, this
would certainly be a public purpose. He added that compensation would
be paid to the land owners as per Central Act No.30 of 2013. He called
upon this Court to sustain the acquisition notifications and set aside the
order of the learned Single Judge and dismiss the writ petitions.
3.Per contra, the learned counsel for the writ petitioners submitted
that the learned Single Judge had correctly approached the issue.
Section 3A of the Act empowers the Central Government to issue
acquisition notification only for the purpose of building, maintenance,
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W.A.(MD)No.1991 and 1992 of 2021
management or operation of a national highway or part thereof. There is
no reference to any other purpose. Road safety awareness cannot fall
within the purview of public purpose as set out under Section 3A of
National Highways Act, 1956. There is no provision in the National
Highways Authority of India, 1988 to the effect that NHAI can undertake
projects for spreading road safety awareness. Thus, the impugned
notifications were on the face of it without jurisdiction. He also added
that while the notification under Section 3A(1) of the Act spoke only
about acquisition for the purpose of forming of “Road Safety Advocacy”,
the subsequent notification read that acquisition is for the purpose of
forming of “Road Safety Advocacy Project”. Thus, the purpose set out in
the two notifications were not identically worded. According to him, the
impugned notifications are vitiated by the vice of vagueness. He relied
on the decisions reported in (2024) 10 SCC 533 (Kolkata Municipal
Corporation Vs. Bimal Kumar Shah), (1973) 2 SCC 337 (Munishi
Singh Vs. Union of India) and (1992) 2 SCC 168 (Madhya Pradesh
Housing Board Vs. Mohd. Shafi) in support of his contentions. He
called upon this Court to sustain the impugned order of the learned
Single Judge and dismiss the writ appeals.
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W.A.(MD)No.1991 and 1992 of 2021
4.We carefully considered the rival contentions and went through
the materials on record. The first question that calls for consideration is
whether the appellants have the jurisdiction to acquire the writ
petitioners' lands under the provisions of the National Highways Act,
1956 for the purpose of “Road Safety Advocacy”. To answer this
question, we have to consider Section 3A(1) of the National Highways
Act, 1956 and Sections 13 and 16 of the National Highways Authority
Act, 1988. The learned standing counsel for the appellants would
contend that we must adopt a liberal and purposive construction while
interpreting the said provisions. We do not agree. On the other hand, we
fully endorse the stand of the learned counsel for the writ petitioners that
this legislation, being an expropriatory legislation, ought to be strictly
construed since it deprives a person of his or her own land (Vide (2014)
3 SCC 430 (Godrej and Boyce Manufacturing Company Limited vs.
State of Maharashtra and AIR 1966 SC 1593 (State of Madhya
Pradesh Vs. Vishnu Prasad Sharma).
5.The learned standing counsel further contended that since the
writ petitioners did not lodge their objections within twenty one days
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W.A.(MD)No.1991 and 1992 of 2021
from the date of publication of the notification under Section 3A(1) of
the National Highways Act, 1956, they are estopped from questioning the
subsequent declaration of acquisition made under Section 3D of the Act.
Again, we do not agree. The authority is obliged to demonstrate before
this Court that the notification issued under Section 3A(1) of the Act is
legal. The Hon'ble Supreme Court in the decision reported in (2005) 13
SCC 477 (Competent Authority vs Barangore Jute Factory) held that if
the primary notification violated the very statute from which it derived its
force, delay in challenging it would not clothe the same with legitimacy.
It specifically held that failure to file objections to the notification under
Section 3C of the Act within twenty one days cannot non-suit the writ
petitioners.
6.The learned Single Judge had quashed the impugned
notifications for the reason that the impugned notifications were not
within the purview and scope of the National Highways Act, 1956. It
was further held that Section 16 of the National Highways Authority Act,
1988 will not include the purpose for which the notifications have been
issued. It was also observed that if at all the authorities wanted to
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W.A.(MD)No.1991 and 1992 of 2021
acquire the land, they should have acquired the land under Central Act
No.30 of 2013. The learned Single specifically held that setting up
“Road Safety Advocacy Project” would not form part of the functions of
NHAI.
7.Before testing the correctness of the reasoning adopted by the
learned Single Judge, it is necessary to extract the relevant statutory
provisions. Section 3A(1) of the National Highways Act, 1956 is as
follows :
“3A. Power to acquire land, etc.—(1) Where the Central
Government is satisfied that for a public purpose any land is
required for the building, maintenance, management or operation
of a national highway or part thereof, it may, by notification in the
Official Gazette, declare its intention to acquire such land.”
Sections 13 and 16 of the National Highways Authority of India Act,
1988 are as follows:-
“13. Compulsory acquisition of land for the
Authority.—Any land required by the Authority for
discharging its functions under this Act shall be deemed to be
land needed for a public purpose and such land may be
acquired for the Authority under the provisions of the
National Highways Act, 1956 (48 of 1956).]
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W.A.(MD)No.1991 and 1992 of 2021
16. Functions of the Authority.— (1) Subject to the
rules made by the Central Government in this behalf, it shall
be the function of the Authority to develop, maintain and
manage the national highways and any other highways vested
in, or entrusted to, it by the Government.
(2) Without prejudice to the generality of the provisions
contained in sub-section (1), the Authority may, for the
discharge of its functions—
(a) ....
(b) construct offices or workshops and establish and
maintain hotels, motels, restaurants and rest-rooms at or near
the highways vested in, or entrusted to, it;
(c) ....
(d) ....
(e) develop and provide consultancy and construction
services in India and abroad and carry on research activities
in relation to the development, maintenance and management
of highways or any facilities thereat;
(f) provide such facilities and amenities for the users of
the highways vested in, or entrusted to, it as are, in the
opinion of the Authority, necessary for the smooth flow of
traffic on such highways;
(g) ....
(h) ....
(i) ....
(j) ....
(k) ....
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W.A.(MD)No.1991 and 1992 of 2021
(l) take all such steps as may be necessary or
convenient for, or may be incidental to, the exercise of any
power or the discharge of any function conferred or imposed
on it by this Act.
(3) ....”
8.The National Highways Act was originally enacted in the year
1956 for the declaration of certain highways to be national highways and
for matters connected therewith. The National Highways Authority of
India Act, 1988 was enacted to provide for the constitution of an
authority for the development, maintenance and management of national
highways and for matters connected therewith or incidental thereto. Both
statutes will have to be read together. It is interesting to note that
Central Act No.16/1997 which incorporated Section 3A and other
provisions in National Highways Act, 1956 also amended Section 13 of
National Highways Authority of India Act, 1988. Section 3A(1) of
National Highways Act, 1956 could have been better drafted. The use of
word “for” twice does strike a jarring note. It cannot be denied that
building, maintenance, management or operation of a national highway
or part thereof is obviously a public purpose. We get the impression that
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W.A.(MD)No.1991 and 1992 of 2021
the legislative intent behind Section 3A(1) of the National Highways Act,
1956 is that acquisition of land under the National Highways Act, 1956
can only be for the particular public purpose set out therein and not any
other purpose. This impression is however misplaced. Because on
account of the amendment of Section 13 of the National Highways
Authority of India Act, 1988, the scope of public purpose has been
substantially broadened. Section 3A(1) of the National Highways Act,
1956 will have to be read together and along with Section 13 of the
National Highways Authority of India Act, 1988. The resultant effect is
that if a land is required for effectuating the functions of NHAI, then, it is
deemed to be a land needed for the public purpose set out in Section
3A(1) of the National Highways Act, 1956. Employing a legal fiction is
a well known legislative device. The scope of the legal fiction must be
extended to the consequences which logically flow from its creation. A
legal fiction must not be limited to treating facts that do not exist as real
but must be expanded to understand the effects and consequences that
flow from the legal fiction (vide (2025) 1 SCC 1 (State of Punjab v.
Davinder Singh). The interpretative effect of the expression “shall be
deemed” occurring in Section 13 of the National Highways Authority of
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W.A.(MD)No.1991 and 1992 of 2021
India Act, 1988 is that any land which is required to enable the NHAI to
discharge its functions under the 1988 Act can be acquired under the
provisions of the National Highways Act, 1956.
9.The appellants are therefore required to show that NHAI is
obliged to spread awareness about road safety as part of its statutory
functions. The primary function of NHAI is to properly manage and
operate the national highways vested in or entrusted to it. Proper
management and operation of roads would include road safety. As per
Section 16(2) of NHAI Act, 1988, the Authority can construct offices or
workshops at or near the highways. It has to regulate and control the
plying of vehicles. It can carry on research activities in relation to the
development, maintenance and management of highways or any facilities
therein. It can provide such facilities and amenities necessary for the
smooth flow of traffic. NHAI had conceived the subject project to
spread awareness about road safety. Road safety campaigns have led to
substantial decrease in accidents. We, therefore, conclude that setting up
of “Road Safety Advocacy” would fall within the statutory functions of
NHAI. The necessary corollary is that acquisition of lands for the said
purpose under the provisions of National Highways Act, 1956, is legal.
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W.A.(MD)No.1991 and 1992 of 2021
10.We do not find any merit in the contention of the learned
counsel for the writ petitioners that the impugned notifications suffer
from the vice of vagueness. By adding the expression “project” in the
notification under Section 3D, no confusion has been created as claimed
by the learned counsel for the writ petitioners.
11.In view of the above, the order of the learned Single Judge
allowing the writ petitions is set aside. These writ appeals are allowed.
(G.R.S. J.,) & (M.J.R. J.,)
28.02.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The Principal Secretary to Government,
Highways and Minor Ports Department,
Secretariat, Chennai - 600 009.
2.The Authorised Officer cum
Special District Revenue Officer
(Land Acquisition- National Highways),
Door No.17, Observatory Street,
Kanyakumari - 629 001, Kanyakumari District.
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W.A.(MD)No.1991 and 1992 of 2021
G.R.SWAMINATHAN, J.
and
M.JOTHIRAMAN, J.
ias
W.A.(MD)Nos.1991 and 1992 of 2021
28.02.2025
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