Orissa High Court
M/S. Sunrise Eggs Firms vs Union Of India & Others on 26 July, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 26672 of 2020
An application under Articles 226 & 227 of the
Constitution of India.
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M/s. Sunrise Eggs Firms ........ Petitioner
-Versus-
Union of India & others ......... Opp. Parties
For Petitioner: - Mr. G. Mukherjee,
Senior Advocate
For Opp. Parties: - Mr.U.C.Mohanty &
Mr. A.Das Advocate for
O.P. Nos. 2, 3 & 7.
Mr.H.M.Dhal,
Addl. Govt. Advocate
for O.P. Nos. 4 to 6
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JUDGMENT
P R E S E N T:
MR. JUSTICE BISWAJIT MOHANTY
MISS JUSTICE SAVITRI RATHO
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Date of Hearing: 15.07.2022 Date of Judgment: 26.07.2022
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B. Mohanty, J. This writ petition has been filed by the
petitioner challenging the notification dated 27.12.2019
published by the Government of India in Ministry of Road
Transport and Highways Department under sub-
// 2 //
section(1) of Section 3A of the National Highways Act,
1956, for short the 'Act' published in daily newspaper
'The Dharitri', regarding acquisition of lands of the
petitioner for the purpose of construction of Raipur to
Vishakhapatnam Economic Corridor and consequently
prayer has been made for quashing of the said
Notification which was published in the newspaper on
23.1.2020. The petitioner has also made an alternative
prayer to direct the opposite parties more particularly
opposite party Nos. 3 and 7 to modify the alignment of
the proposed road in accordance with the enquiry report
under Annexure-5 and to consider and dispose of the
objection under Annexure-6 as per Section 3C of the
'Act'.
2. The case of the petitioner is that it is a
registered farm and the said farm purchased Ac.24.00
cents land which was originally classified as 'Dongoro' i.e.
dry land. Out of the said land Ac.14.00 cents has been
converted to non-agricultural category under Section 8A
of the Orissa Land Reforms Act,1960 and the petitioner is
// 3 //
in uninterrupted possession of the same. The petitioner
ventured to construct a mega poultry farm namely,
'Sunrise Egg Farm' over Plot Nos. 9 to 13 of Khata No.
108/477. The total project cost was estimated of Rs.
14.00 crores. The petitioner availed loan from the bank
for establishing the said project. Accordingly the
petitioner has constructed boundary wall and
construction of ware house, office building, water tank,
seven numbers of poultry shed, staff quarters and other
ancillaries have already been completed by spending
Rs.8.00 crores and electricity connection has been
obtained to the farm site by spending Rs.17.00 lakhs and
the project is ready to have its maiden production. Copies
of the relevant R.O.Rs. have been filed under Annexure-1
series. While so, on 23.1.2020 the Land Acquisition
Authorities published Notification in daily newspaper i.e.
'The Dharitri' regarding acquisition of land for
construction of Raipur to Vishakhapatnam Economic
Corridor/Express Highway under Section 3A of the 'Act',
a copy of which has been annexed to the writ petition as
// 4 //
Annexure-2. According to the petitioner the Notification
under Section 3A as indicated above violates sub-section
2 of Section 3A of the 'Act' as it does not give details of
the properties along with the brief description of the land
proposed to be acquired. Further the case of the
petitioner is that the said Notification under Annexure-2
is otherwise illegal as the same does not indicate as to
which portion of the land is going to be acquired. The
petitioner only came to know about the exact area to be
acquired when the staff of Land Acquisition Officer came
to the spot on 16.8.2020 for conducting demarcation
and put pillars over the land to mark the exact area. Only
then the petitioner could realize that the proposed
Highway is going to pass in the middle of the land of the
petitioner as a result of which, one big patch of
petitioner's land will be divided into small patches and
partly constructed buildings have to be completely
demolished and accordingly they would suffer huge
financial loss of Rs. 14.00 crores. Accordingly, on
17.8.2020 the partner of the farm through whom the writ
// 5 //
petition has been filed namely, Mohammed Rafi preferred
an objection against the proposed land acquisition with
regard to the land situated at village Kamra under
Annexure-4 to Tahasildar, Borigumma (opposite party
No.6). The Tahasildar, Borigumma conducted an enquiry
and recorded his observation that the petitioner is going
to suffer a lot if the alignment of the proposed highway is
not changed. This enquiry report which has been
addressed to the Land Acquisition Officer, Collectorate,
Koraput (opposite party No.7) has been annexed to the
writ petition as Annexure-5. There he indicated that the
project of the petitioner farm will suffer huge financial
loss, if the separation takes place due to the division of
the land. Thereafter, on 22.9.2020 the partner of the
petitioner farm submitted a representation/objection
under Annexure-6 to opposite party No.7 praying for
change of alignment to the extreme corner of the farm so
as to save the project from being destroyed. When there
was no response from the side of the authorities, the
// 6 //
present writ petition was filed on 6.10.2020 making the
above noted prayers.
3. A counter affidavit has been filed by opposite
party Nos. 2, 3 & 7. They have taken a stand that the
Notification vide Annexure-B/2 dated 18.7.2019
published in exercise of powers conferred by clause(a) of
Section 3 of the 'Act', by the Central Government in
Ministry of Road Transport and Highways authorized
Tahasildar-cum-Land Acquisition Officer, Borigumma to
act as the Competent Authority to perform the functions
of such authorities under "the Act" in respect of the
stretch of land from Km. 238.200 to Km. 363.320 of the
newly proposed highway for building (widening/four-
laning, etc.), maintenance management and operation in
the State of Odisha. With regard to this stretch of land
the earlier mentioned notification under Annexure-2 or
Annexure-A/2 was issued later. The notification under
sub-section(1) of Section 3A of the 'Act' which was
published under Annexure-2 made it clear that any
person interested in the lands indicated therein may
// 7 //
within 21 days from the date of publication of the
notification can object to the use of such land for the
aforesaid purpose under sub-section(1) of Section 3C of
the 'Act'. It also made it clear that every objection shall be
made to the Competent Authority namely, Tahasildar-
cum-Land Acquisition Officer, Boriguma in writing and
shall set out the grounds thereof and the Competent
Authority would give the objector an opportunity of being
heard, either in person or by a legal practitioner and may
after hearing all such objections and making such further
enquiry, if any, as the Competent Authority thinks
necessary, by order, either allow or disallow the
objections. The said notification while giving brief
description of the land to be acquired also made it clear
that the land plans and other details of the land to be
acquired under the notification are available and can be
inspected by the interested person in the Office of
Competent Authority i.e. Tahasildar-cum-Land
Acquisition Officer, Boriguma. Despite publication of this
notification in the newspaper i.e. 'Times of India' and 'The
// 8 //
Dharitri' on 23.1.2020 under Annexure-2, the petitioner
never cared to file its objection within time as indicated in
the notification and since the land has already vested in
the Central Government with publication of notification
under Section 3D of the 'Act' on 10.9.2020 under
Annexure-C/2 the petitioner has no legal right to
challenge the notification under sub-section (1) of Section
3A of the 'Act' at this stage. They have also taken a stand
that the public interest cannot be defeated to uphold the
private interest of the petitioner as the project deals with
Raipur to Visakhapatnam Economic Corridor. They have
further taken a stand that the notification under
Annexure-2 or Annexure-A/2 clearly contains a brief
description of the land. Therefore, the impugned
notification cannot be termed as illegal and by filing the
present writ petition, an effort has been made by the
petitioner to delay the project. With regard to the
averments made relating to existence of boundary wall
and construction of buildings and conversion of land
from Dongoro to non-agricultural category, their stand is
// 9 //
that all these will be taken care of/assessed at the
appropriate stage of proceeding as provided under
Section 3G of the "Act". With regard to map at Annexure-
3 filed in the writ petition their stand is that this is a map
prepared by the petitioner to satisfy its own vested
interest to disturb the proposed national highway and the
petitioner is estopped from raising all the issues as it
never filed objection as provided under law when the
notification under Annexure-2 was within his knowledge.
With regard to the prayer of the petitioner for change of
alignment, their stand is that the same is not tenable as
prayed under Annexure-6. In this context they have
relied upon the decision of the Supreme Court in the case
of Union of India Vrs. Dr. Kushala Shetty and Others
reported in AIR 2011 S.C. 3210. Accordingly, their
stand is that the writ petition being without any merit,
should be dismissed.
4. The petitioner has filed a rejoinder affidavit
reiterating that the authorities are bound to provide brief
description of the land as required under sub-section(2)
// 10 //
of Section 3A of the 'Act' and since the details of the lands
were not published, the notification under Annexure-2 or
Annexure-A/2 is legally vulnerable. If the authorities
would have submitted the details, the petitioner could
have been able to file objection as per Section 3C of the
'Act'. It is also indicated in the rejoinder affidavit that
though the notification under sub-section(1) of Section
3A of the 'Act' was published on 27.12.2019 however only
on 2.1.2020 the Project Director, NHAI forwarded the
same to the Tahasildar-cum-Land Acquisition Officer,
Borigumma, which was received there as per Anneuxre-7
on 16.1.2020.
5. Mr.Goutam Mukherjee, learned Senior Counsel
appearing for the petitioner at the outset submitted that
the relevant plots for the purpose of the present case are
Plot No. 9 falling under Khata No. 108/468 and plot Nos.
10 and 11 falling under Khata No. 108/447 of Mouza
Kamara under Tahasil Borigumma whose R.O.Rs. have
been filed under Annexure-1 series. He submitted that
since the notification under sub-section(1) of Section 3A
// 11 //
of the 'Act' under Annexue-2 does not give a brief
description of the land as required under sub-section(2)
of Section 3A of the 'Act', such notification becomes
legally vulnerable. He also submitted that the said
notification does not contain the names of the owners
and which part of the land is going to be acquired.
According to him the notification under sub-section(1) of
Section 3A of the 'Act' should have contained a clear cut
identifiable description of the land including the things
which are present over the said land. In this context, he
relied on definition of land as contained in 3(a) of the
"Act". Placing reliance on the decision of the Supreme
Court in the case of Competent Authority Vrs.
Barangore Jute Factory and Others reported in (2005)
13 SCC 477, he prayed that the notification under
Anexure-2 should be quashed. He also submitted that
there has been total non-application of mind in issuing
the notification under sub-section(1) of Section 3A of the
'Act' under Annexure-2 in as much as by the time that
notification was issued the kisam of the lands have
// 12 //
already been changed from 'Dangar' to 'Gharabari' as
would be clear from the R.O.Rs. under Annexure-1 series
covering those plots. In such background also the
notification under Annexure-2 is legally vulnerable. He
also submitted that the gazette notification under sub-
section(1) of Section 3A of the 'Act' was published on
27.12.2019. On 2.1.2020 vide Annexure-7 the Project
Director, NHAI communicated the said notification to the
Tahasildar-cum-Land Acquisition Officer, Boriguma
which was received by him on 16.1.2020. By that time 21
days for submitting objection have already expired.
Accordingly, the petitioner has committed no mistake in
not filing the objection in time as such notification was
even not known to the Tahasildar-cum-Land Acquisition
Officer. In such background he submitted that the
objection under Annexure-4 ought to be treated as
objection to Annexure-2 under Section 3C of the 'Act' and
letter under Annexure-5 should be treated as an order
passed under Section 3C(2) of the 'Act'. He also
submitted that the notification under Annexure-2 was
// 13 //
legally vulnerable as it violates sub-section(3) of Section
3A of the 'Act' as it was not published in a local
newspaper having wide circulation in the area in which
lands proposed to be acquired were situated. In this
context with regard to the meaning of "Local Newspaper",
Mr.Mukherjee relied upon the decision of the Supreme
Court rendered in Diamond Sugar Mills Limited and
Others Vrs. the State of Uttar Pradesh and Others
reported in AIR 1961 SC 652 and the case of Phoenix
ARC Private Limited Vrs. Vishwa Bharti Vidya
Mandir and others reported in AIR 2022 SC 1045.
Mr.Mukherjee submitted that the action of the
authorities is malafide as though the petitioner has
shifted seven structures after coming to know about
Annexure-2 notification, again those lands to which such
shifting has taken place, have been earmarked for
acquisition in a fresh notification under Section 3A(1) of
the 'Act'. With regard to the prayer for separate
route/alignment, he stated that the prayer made under
Annexure-6 should be treated as an objection under
// 14 //
Section 3C of the 'Act' in the background of the enquiry
report under Annexure-5. Accordingly, the authorities in
the alternative should be directed to take a decision on
such objection.
6. Mr.U.C.Mohanty, learned counsel appearing
for opposite party Nos. 2, 3 & 7 assisted by Mr.A.Das,
learned counsel submitted that sub-section(2) of Section
3A of the 'Act' only reflects that the notification issued
under sub-section(1) shall give a brief description of the
land and nothing more and a perusal of Annexure-
2/Annexure-A/2 would clearly show that the brief
description of the land has been given. Further the said
notification makes it clear that land plans and other
details of the land to be acquired are available and can be
inspected by the interested persons in the office of the
Competent Authority. In such background he submits
that the notification under Annexure-2 cannot be held to
be in violation of sub-section(2) of Section 3A of the 'Act'.
With regard to submission of Mr.Mukherjee
that 21 days have expired prior to receipt of the
// 15 //
communication under Annexure-7 enclosing a copy of
notification under Annexure-2 by the Tahasildar-cum-
Land Acquisition Officer, Boriguma, he submitted that
the petitioner has itself averred at paragraph-5 of the writ
petition about the paper publication of the notification
being made on 23.1.2020 in 'Dharitri' newspaper, which
is a well circulated vernacular newspaper of the State.
Therefore the petitioner could have filed his objection as
he knew about such publication under Annexure-2
within 21 days from 23.1.2020 which it never did. With
regard to submissions of Mr.Mukherjee that the
notification was not published in the local newspaper
resulting in violation of sub-section(3) of Section 3A of the
'Act', he submitted that there exists no such pleading
either in the writ petition or in the rejoinder and
therefore, he should not be permitted to raise this issue
at this stage of hearing. Even otherwise he submitted
that the very fact that in paragraph-5 of the writ petition,
the petitioner refers to notification published in the daily
newspaper 'The Dharitri' on 23.1.2020, would make it
// 16 //
clear that the petitioner had knowledge about such
notification. With regard to the allegations of malafide
made by Mr.Mukherjee, he submitted that there exists no
pleading whatsoever either in the writ petition or in the
rejoinder filed by the petitioner on the same and
accordingly, such argument should be ignored. Further
with regard to submission of Mr.Mukherjee that the fact
that Plot Nos. 9, 10 & 11 covered by R.O.Rs. under
Annexure-1 series which are relevant for the purpose of
case, falling under village Kamra, were shown to be of
Dangara/2 kisam under Annexure-2 though by the time
of such notification, the kisam of said land had already
been changed to Gharabari shows non-application of
mind while issuing the notification under Annexure-2, he
submitted that such change as per the R.O.Rs under
Annexure-1 series only occurred on 11.10.2019 and the
impugned notification was published on 27.12.2019 and
this has occurred due to non-correction of revenue
records as collection of data with regard to land record
must have started immediately after notification dated
// 17 //
18.7.2019 under Annexure-B/2 was issued. Therefore
this should not be treated to be a serious issue. With
regard to the submission of Mr.Mukherjee that Annexure-
4 should be treated as the objection to Annexure-2 and
Annexure-5 to be treated as an order under Section 3C(2)
of the 'Act' as 21 days had expired on 17.1.2020,
Mr.Mohanty submitted that 21 days expired on
13.2.2020 as the paper publication was made as
admitted by the petitioner on 23.1.2020 in local
vernacular newspaper 'The Dharitri' and Annexure-4 was
submitted much after only on 17.8.2020 and therefore,
the same cannot be treated as an objection filed under
Section 3C of the 'Act' as the same was filed much
beyond the time and accordingly he submitted that
Annexure-5 cannot be treated as an order under Section
3C(2). Further according to him Section 3C(2) mandates
that the Competent Authority shall give the objector an
opportunity of being heard and should either allow or
disallow the objections. A reading of Annexure-5 would
show that it only makes some observations and the same
// 18 //
never allowed the prayer of the petitioner. He also
submitted that much cannot be read to Annexures-4, 5 &
6 because Annexure-4 was never addressed to the
Competent Authority and it was only addressed to the
Tahasildar, Boriguma but not in his official designation
as Competent Authority. Similarly even if for a moment
Annexure-5 is accepted as an order under sub-section(2)
of Section 3C of the 'Act' but the same was never
communicated to the Central Government which issued
the notification under Annexure-2. Further, the same
was communicated to the Land Acquisition Officer,
Koraput by Tahasildar, Borigumma only as Tahasildar,
Bogirumma not as Competent Authority. With regard to
Annexure-6 he submitted that the representation under
Annexure-6 also cannot be treated as an objection as the
same was never addressed to the Competent Authority.
Therefore, the alternative prayer of the petitioner for a
direction to consider the objection under Annexure-6 for
realignment is without any merit. In this context he
submitted that the project has been prepared by the
// 19 //
authorities keeping various relevant factors in mind and
in larger public interest, prayer for realignment cannot be
permitted. In this context he relied on the decision of the
Supreme Court in Dr. Kushala Shetty and Others
(supra). Lastly he submitted that the petitioner has not
challenged the notification under Annexure-C/2 issued
under Section 3D of the 'Act'. Accordingly, he prayed that
the writ petition be dismissed. While concluding
Mr.Mohanty submitted that since there has been no
infraction of law in issuing notification under Annexure-
2, in larger public interest this Court should not interfere
in the matter and in this context he relied upon the
decision of the Supreme Court in the case of Ramniklal
N.Bhutta and another Vrs. State of Maharashtra and
others reported in AIR 1997 SC 1236 and an
unreported decision of the Court rendered by a Division
Bench in M/s. Narayani Motors Private Limited Vrs.
The National Highways Authority of India and
another in W.P.(C) No. 19970 of 2010 disposed of on
3.12.2010.
// 20 //
7. Heard Mr.Mukherjee, learned Senior Counsel,
Mr.U.C.Mohanty and Mr.A.Das, learned counsels
representing opposite party Nos. 2, 3 and 7.
8. The undisputed facts of the case are as
follows:-
On 18.7.2019 vide Annexure-B/2 the Central
Government authorized the Tahasildar-cum-Land
Acquisition, Officer, Boriguma to act as an Competent
Authority in respect of village Kamra in which the
relevant plots of the petitioner viz. Plot Nos. 9, 10 & 11
covered by the record of rights under Annexure-1 series
are situated. These plots which earlier belonged to kisam
Dangar/2 were converted to Gharabari kisam pursuant
to the orders passed in cases filed under Section 8-A of
the Orissa Land Reforms Act, 1960 and accordingly
R.O.Rs. were issued in favour of the petitioner on
11.12.2019 by the Additional Tahasildar, Boriguma. On
23.1.2020, the notification dated 27.12.2019 under sub-
section(1) of Section 3A of the Act was published in
"Times of India" and vernacular daily "Dharitri". Vide
// 21 //
Annexure-7, the Project Director, National Highways
Authority of India sent a copy of the above notification
dated 27.12.2019 to the Tahasildar-cum-Land
Acquisition Officer, Boriguma who happens to be the
Competent Authority. As indicated earlier on 23.1.2020,
the notification dated 27.12.2019 under sub-section(1) of
Section 3A of the 'Act' was published in the newspaper
i.e. "The Times of India" and "The Dharitri" under sub-
section(3) of Section 3A of the 'Act'. A copy of such
publication has been filed as Annexure-2 by the
petitioner itself making it clear that such publication was
made on 23.1.2020. The publication as under Annexure-
2 made it clear that objection if any should be filed within
21 days, for the purposes under sub-section(1) of Section
3C of the 'Act'. 21 days expired on 13.2.2020 but the
petitioner did not file any objection. The said notification
further made it clear that the land plans and other
details of the land to be acquired under the notification
are available and can be inspected by the interested
person at the aforesaid office of the Competent Authority.
// 22 //
Much after, on 16.8.2020 when the staff of the National
Highways Authority came and demarcated the land of the
petitioner, it realized that the proposed economic corridor
is going to pass in the middle of its land by dividing the
same into two parts. Accordingly, on 17.8.2020 the
partner of the petitioner who is a resident of Gandhinagar
at Nabarangpur i.e. the district Headquarter through
whom the present writ petition has been filed, filed an
objection under Annexure-4 before the Tahasildar,
Boriguma much beyond 21 days. A perusal of Annxure-4,
would show that the petitioner did not raise any objection
with regard to description of the land under Annexure-
2/Annexure-A/2 even at that late stage nor did it give
any indication therein that the petitioner was not aware
of Annexure-2 and the paper publication made on
23.1.2020. Thereafter, vide Annexure-C/2 the Central
Government issued the notification under sub-section(2)
of Section 3D whereby major portion of plot Nos. 9,10,11
belonging to the petitioner under village Kamra vested
with the Central Government. It appears that pursuant to
// 23 //
the representation under Anneure-4, the Tahasildar
made a field enquiry and sent a report of the same to the
Land Acquisition Officer, Collectorate, Koraput on
21.9.2020 vide Annexure-5. It may be noted here that
Tahasildar Boriguma only in the capacity of Tahasildar,
Boriguma not in the capacity of Tahasildar-cum-Land
Acquisition Officer, who has been declared as Competent
Authority sent a letter under Annexure-5 to the Land
Acquisition Officer, Collectorate, Koraput (opposite party
No.7) who is another official distinct from Tahasildar. In
Annexure-5, the Tahasildar, Boriguma (opposite party
No.6) reflected his observations that major portion of
construction of godown, large sheds, office building, big
water tank, staff quarters are almost complete and the
proposed road passes almost in the middle of the farm as
a result of which the project is likely to be suffer huge
financial loss. He also noted that the petitioner has
already invested Rs.10 crores and he was requested by
the petitioner to shift the road so that their project will be
saved. Probably when nothing was done the petitioner
// 24 //
addressed another representation under Annexure-6 to
opposite party No.7, who is not the Competent Authority
praying for change of alignment. It is in such background
the present writ petition has been filed by making the
above noted prayers.
9. Mr.Mukherjee mainly attacked the notification
issued under sub-section(1) of Section 3A of the 'Act' on
the ground that the same does not give brief description
of the land either by stating the name of the owner or by
giving description of the exact portion of land which was
proposed to be acquired by the authorities. In this
context he relied upon the decision of the Supreme Court
in the case of Competent Authority Vrs. Barangore
Jute Factory and Others(supra) wherein the Supreme
Court after coming to a conclusion that as the
notification therein under sub-section(1) of Section 3A of
the 'Act did not clearly indicate as to which portion of the
land was going to be acquired, held that the impugned
notification failed to meet the requirement of sub-
section(2) of Section 3A of the 'Act' and accordingly
// 25 //
declared the notification bad in law. The Supreme Court
arrived at such a conclusion after scanning the
notification itself where from it found that there is
nothing in the notification which would make it clear that
the authorities are going to acquire which portion of the
land. While coming to such conclusion the Supreme
Court also noted that in the impugned notification
therein, there never existed any reference to any plan
which would have clearly reflected the area which was
intended to be acquired. In this context the discussions
made by the Supreme Court in Paragraphs 6 and 7 of
that judgment are quoted hereunder:-
"6 While dealing with the question of brief description of
land in the acquisition notifications, reference was
made to some judgments of this Court where
acquisition Notifications under Section 4 of the Land
Acquisition Act had come up for consideration on
account of challenge being leveled on ground of
vagueness of the Notifications. In most of these cases,
Plan of the area under acquisition was made part of
the notifications to show that the requirement of
description of land was met. This leads us to inquire
// 26 //
whether there was any site plan forming part of the
impugned Notification.
7. The availability of a Plan would have made all the
difference. If there is a Plan, the area under acquisition
becomes identifiable immediately. The question
whether the impugned Notification meets the
requirement of brief description of land under Section
3-A(2) goes to the root of the matter. The High Court
rightly observed : "...It is just not possible to proceed to
determine the necessity of acquisition of a particular
plot of land without preparation of a proper Plan." The
Appendix to the impugned Notification shows that in
many cases small parts of larger chunks of land have
been notified for acquisition. This is not possible
without preparing a Plan. But where is the Plan? The
Notification in question makes no reference to any
Plan. Our attention was drawn to averments in
pleadings by the Writ Petitioners and replies thereto of
the acquiring authority. The Writ Petitioners have
pleaded that there was no Plan. Replies are vague and
by way of rolled up answers. There is no specific reply.
It is obvious that there was no Plan and therefore none
was referred to in the pleadings nor any thing was
produced before the Court at the hearing. Learned
counsel for the Competent Authority tried to submit
before us that there was a Plan at the time of issue of
the notification and the Writ Petitioners ought to have
inspected it, if they so desired. He further submitted
that the Plan was produced before the High Court. We
find that both these submissions are not sustainable
// 27 //
as they are not correct. A reference to the impugned
Notification shows that there is no mention of any
Plan. Without this how can anybody know that there
was a Plan which could be inspected and inspected
where? We are inclined to accept that there was no
Plan accompanying the impugned Notification. During
the course of hearing we were shown a Plan which we
are unable to link with the impugned Notification. This
was a 1996 P.W.D.Plan. P.W.D. is a department of the
State Government. The impugned Notification is by the
Central Government. NHAI is established under
a Central Act. The Competent Authority under Section
3 of the Act is appointed by the Central Government.
Therefore, this State Government Plan of 1996 (the
impugned Notification is of 1998) is of no assistance.
The impugned judgment of the High Court emphasises
the need for a Plan. It is clear from the judgment of the
High Court that no Plan was produced before it. The
absence of any reference to a Plan in the impugned
Notification and in fact non-availability of any Plan
linked to the Notification, fortifies the argument that
the description of the land under acquisition in the
impugned Notification fails to meet the legal
requirement of a brief description of the land which
renders the Notification invalid."
But in the present case a perusal of the
notification under Annexure-2 clearly shows that the
notification itself clearly refers to the land plan and
// 28 //
makes it clear that the land plans and other details of the
land to be acquired are available and can be inspected by
the interested person in the office of Competent
Authority. Therefore, the facts of the present case are
different from the fact of the case in Competent
Authority Vrs. Barangore Jute Factory and
Others(supra). If the partner or any authorized agent of
the petitioner would have perused the land plan and the
details which were available with the Competent
Authority, this Court is sure, he would have known the
details of the proposed acquisition. Further the language
of sub-section(2) of Section 3A of the 'Act' speaks of "brief
description" not detailed description and on perusal of
notification under Annexure-2, it is clear that there exists
brief description of the lands which are going to be
acquired and the petitioner despite having knowledge of
the same being published on 23.1.2020 in the vernacular
newspaper 'The Dharitri' never chose to inspect the land
plan and the details nor filed any objection. In this
context the submission of Mr.Mukherjee that the
// 29 //
notification under Annexure-2 is legally vulnerable as it
did not point out the details of land which includes the
benefits arising out of the land and things attached to the
land permanently to the land as per the definition of the
land at Section 3(a) of the 'Act' cannot be accepted as
details of the land to be acquired along with the land
plans were available in the office of Competent Authority.
Even otherwise the petitioner never objected to such
description even in his representations under Annexures-
4 and 6 highlighting absence of brief description of land
under Annexure-2. With regard to the submission of
Mr.Mukherjee that there has been non-application of
mind while issuing the notification under Annexure-2 as
the relevant plots were indicated as Dangara/2 kisam
instead of Gharabari kisam, it may be noted here that
while the corrected record of rights were issued on
11.12.2019 and the impugned notification was published
in the gazette on 17.12.2019 after a gap of 16 days. As
Mr.Mohanty submitted the process of collection of data
relating to land records must have been initiated after
// 30 //
publication of notification dated 18.7.2019 under
Annexure-B/2. Therefore, it will be reasonable to come to
a conclusion that since the required information relating
to the land must have been collected much prior to the
issuance of R.O.Rs. on 11.12.2019 under Annexure-1
series after issuance of notification of Competent
Authority under Annexure-B/2 on 18.7.2019, the
incorrect description of land cannot be accepted as a
serious error in issuance of the notification so as to
attract violation of sub-section(2) of Section 3A of the
'Act'. Further if the petitioner would have checked the
details of land and the land plans as indicated under
Annexure-2 in the Office of Competent Authority, there
was every possibility that these informations may have
been available in that office relating to change in kisam.
For all these reasons the first submission of
Mr.Mukherjee fails.
With regard to his second submission that
since the copy of gazette notification dated 27.12.2019
under sub-section(1) of Section 3A of the 'Act' was
// 31 //
forwarded to the Tahasildar-cum-Land Acquisition
Officer, Boriguma vide Annexure-7 by the Project
Director, National Highways Authority of India on
2.1.2020 which was received by the said officer on
16.1.2020 and since by that time, the time period for
filing objection vis-à-vis the notification had already
expired, the petitioner was deprived of an opportunity to
file his objection, the said submission also cannot be
accepted for the following reasons. The petitioner itself
has admitted that the paper publication of the
notification was made in local newspaper i.e. "The
Dharitri" on 23.1.2020 under Annexure-2 and has not
disputed about such publication in Times of India of
same date. Thus, the paper publication was made much
after receipt of gazette notification under sub-section(1) of
Section 3A of the 'Act' by the Tahasildar-cum-Land
Acquisition Officer on 16.1.2020. Accordingly, the
petitioner could have easily filed its objection by
13.2.2020, which it did not do.
// 32 //
With regard to the third submission of
Mr.Mukherjee that there has been violation of sub-
section(3) of Section 3A of the 'Act' as the notification was
not published in locally circulated newspaper, this Court
is of the view that such submission cannot be accepted
as there exists no pleading in the writ petition on this
issue. Further the petitioner itself has indicated at
paragraph-5 of the writ petition that the notification
under sub-section(1) of Section 3A was published in daily
newspaper i.e. 'The Dharitri' on 23.1.2020 and it is
common knowledge that the said vernacular newspaper
enjoys a good circulation in the State. More over from the
affidavit portion of the writ petition it is clear that the
partner through whom the writ petition has been filed
lives at Gandhinagar of Nabarangpur, which itself is the
district headquarter. Further it is no where the
requirement of law that a newspaper in order to be a
'local newspaper' should have circulation in the area in
which the plots are situated. This Court cannot give such
a narrow interpretation to the phrase "local newspapers"
// 33 //
used in sub-section(3) of Section 3A of the 'Act'. In this
context, Mr.Mukherjee has relied upon two decisions of
the Supreme Court, both of which according to us are not
relevant and are factually distinguishable. In Phoenix
ARC Private Limited Vrs. Bishwa Bharati Vidya
Mandir & Others (supra) there does not exist any
discussion relating to the interpretation of the phrase
"local newspaper". It deals mainly with the
maintainability of the writ petition with regard to action
taken under Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest At,
2002. With regard to Diamond Sugar Mills Limited and
Others Vrs. the State of Uttar Pradesh and Others
(supra), there the question involved was around the
interpretation of the phrase "local area" appearing in
Entry 52 of the State list of the 7th Schedule of the
Constitution of India and there the question was whether
the premises of a factory would come within the definition
of "local area" and it was held there that such premises
will not come within the "local area" as appearing in
// 34 //
Entry 52 of the list II. There the Supreme Court made it
clear that the proper meaning attached to the words
"local area" of entry 52 of the State list of the
Constitution would be an area administered by a local
body like municipality, a district board, a local board, a
union board, a Panchayat and the premises of a factory
cannot therefore be a local area. Thus the said case no
where deals with the meaning of the phrase "local
newspaper" which has been used in sub-section(3) of
Section 3A of the 'Act' and its circulation. In such
background submission of Mr.Mukherjee relating to the
violation of sub-section(3) of Section 3A of the 'Act'
cannot be accepted.
With regard to his submission of malafide
activities of the authorities, it has been rightly pointed
out by Mr.Mohanty that there exists no averment either
in the writ petition or in the rejoinder affidavit filed by the
petitioner on this. Therefore, we are not inclined to accept
the submission of Mr.Mukherjee on this score.
// 35 //
Mr.Mukherjee further submitted that
Annexure-4 should be treated as an objection to
Annexure-2 under sub-section(1) of Section 3C of the
'Act' and Annexure-5 should be treated as an order under
Section 3C(2) of the 'Act'. Again we are constrained to
point out that there exists no pleading on such
submission. Be that as it may, even otherwise we cannot
accept such submission because sub-section(1) of
Section 3C of the 'Act' makes it clear that the objection
will have to be filed within 21 days from the date of
publication of notification under sub-section(1) of Section
3A of the 'Act'. Here the notification as admitted by the
petitioner itself at paragraph five of the writ petition was
published in vernacular daily newspaper i.e. "The
Dharitri" on 23.1.2020 and the so called objection under
Annexure-4 was filed much after on 17.8.2020 even
without taking the plea that the petitioner was not aware
of Annexure-2. There also, as indicated earlier the
petitioner has not raised any objection relating to the
description of the land. With regard to his submission
// 36 //
that Annexure-5 should be treated as an order under
Section 3C(2) of the 'Act', the same cannot be accepted
because sub-section(2) of Section 3C of the 'Act'
presupposes that the objection should be filed in tune
with sub-section(1) of Section 3C of the 'Act' and under
the said sub-section, the Competent Authority is required
to give an opportunity of being heard and thereafter
either allow or disallow the objection. Here admittedly the
objection was not filed in tune with sub-section(1) of
Section 3C of the 'Act' and vide Annexure-5 the
Competent Authority has neither allowed nor dismissed
the objection. Further under Annexure-5 the Tahasildar,
Boriguma has not passed any order in his capacity as
Competent Authority. He has only recorded his
observation in Annexure-5 and in fact by no stretch of
imagination Annexure-5 can be described as an order.
From the subject matter it is clear that it is a report.
Therefore, the said submission of Mr.Mukherjee also
fails.
// 37 //
The last submission of Mr.Mukherjee that
since the report of the Tahasildar, Borigumma under
Annexure-5 clearly pointed out the difficulties of the
petitioner, therefore the representation/objection filed by
the petitioner under Annexure-6 on 22.9.2020 praying for
realignment of Highway should be directed to be disposed
of by the Land Acquisition Officer, Collectorate, Koraput,
cannot be accepted because the Land Acquisition Officer,
Koraput has no authority in such matter. Further as per
the decision of the Supreme Court in the case of Union of
India Vrs. Kushala Shetty and Others (supra) it has
been made clear that the National Highways Authority of
India prepare and implement the project relating to
developments and maintenance of highway after
thorough study by experts in different fields. The detailed
project reports are prepared keeping in view the various
relevant factors including intensity of heavy vehicular
traffic and public interest at large. The Courts are not at
all equipped to decide upon the viability and feasibility of
the particular project and whether the particular
// 38 //
alignment would sub-serve the larger public interest. In
such background also the prayer for a direction to the
authorities to consider the prayer for realignment of
highway cannot be acceded to. Further in M/s. Narayani
Motors Private Limited (supra) this Court has made it
clear that when the case is of right of an individual
versus public interest, individual right must yield to
public interest.
10. For the reasons indicated above, we do not find
any reason whatsoever to interfere with the impugned
notification under Annexure-2 or to issue a direction to
the authority to dispose of the representation under
Annexure-6 praying for realignment. Accordingly, the writ
petition is dismissed. There would be no order as to
costs.
...................................
Biswajit Mohanty, J.
I agree
.................................
Savitri Ratho, J.
Orissa High Court, Cuttack
The 26th July, 2022 /Kishore
