WP/14333/2020 of Kolla Sambasivarao Vs THE UNION OF INDIA on 30 December 2022

ORDER:

HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

WRIT PETITION No. 14333 of 2020

This Writ Petition has been filed by the petitioner invoking the jurisdiction of this Court under Article 226 of the Constitution of India for the following relief:

“…to issue writ order or direction more particularly one in the nature of writ of Mandamus, declaring the action of the respondents in issuing notification No.S.O.3575(E), dated 26.09.2019, published in news papers dated 31.10.2019, without giving the proper description of the property sought to be acquired and trying to acquire part and parcel of the function hall bearing H.No.21-167, Pedakakani village & Mandal, Guntur District, even without giving opportunity and issuing endorsement dated 07.02.2020, refusing to consider objections of the petitioner, as arbitrary, illegal, contrary to the Article 300A of the Constitution of India and well settled principles of natural justice…..….”

2. The case of the petitioner, in brief, is that he is the absolute owner of the land in an extent of 2378 Sq.yards situated in Survey Nos.930/A and 930/B having purchased the same from rightful owners under different sale deeds and out of the said extent, the respondent authorities had acquired an extent of 193.75 Sq.yards in S.No.930/A for the purpose of road widening and possession of the said extent was handed over to the authorities and he has been in possession and enjoyment of the remaining extent and running a function hall therein. It is further case of the petitioner that, recently, having come to know that the respondent authorities proposed to acquire some more extent from out of his property for the purpose of providing an exit from the National Highway, he approached the authorities and made representations dated 03.02.2020 and 04.02.2020, but the authorities refused to consider them stating that they were not filed within 21 days from the date of publication of notice under Section 3-A of the National Highways Act, 1956. It is the further case of the petitioner that, 3-A notice published in news papers describes to the land sought to be acquired as a private dry land in an extent of 0.04050000 hectors in Survey No.930/A1 and it does not contain the petitioner’s name as owner of the land sought to be acquired. In fact, the property belongs to the petitioner is a function hall and the same was recorded as such in panchayat records and the same was assessed to tax and the petitioner has been paying property tax to the Nagar Panchayat and twelve persons own different extents in the said survey number, but there is no clarity as to whose property is sought to be acquired. It is the further case of the petitioner that the purpose of issuance of 3-A

notification mentioning the details is to enable the persons interested in the property sought to be acquired to file their objections. However, the subject 3-A notification is vague and as such the petitioner was unable to know that his property is sought to be acquired in the said notification and hence he could not approach the authorities in time to file objections. Therefore, the impugned endorsement refusing to consider the objections is unfair, illegal. Hence, the petitioner is constrained to file this Writ Petition.

3. The 5[th] respondent-competent authority (Land Acquisition)-cum- Revenue Divisional Officer filed counter affidavit, denying the averments of the writ affidavit, inter alia contending that, an extent of 3681 Sq.Mtrs. of land in R.S.No.447/2, 479/2 was proposed for acquisition for Exit/Entry ramps to N.H.16 in the village limits of Peddakakani village of Peddakakni Mandal and the petitioner’s land to an extent of 149 Sq.Mtrs. in R.S.No.930/A1B3 is also included in the proposed land for acquisition and a notification under Section 3A(1) of the National Highways Act, 1956 has been published in Gazette besides publishing the same in two newspapers on 31.10.2019 calling for objections from the persons interested. It is

further stated that the petitioner filed objections before the CALA/RDO, Guntur on 03.02.2020 to exempt his land from acquisition on the ground that if the land is acquired, the Kalyana Mandapam constructed therein will be affected. As the said objections are not filed within 21 days as per section 3C(1) of the National Highways Act, 1956, the CALA and RDO, Guntur issued endorsement vide Rc.No.1706/2019-M, dated 07.02.2020 informing that objection for exemption of the land from proposed acquisition is rejected. It is further stated that the petitioner’s land is inevitable for construction of Exit/Entry ramps to main carriage way to N.H.16 and hence the request of the applicant for exemption of his land from the acquisition cannot be considered and hence the objections submitted by the petitioner were rejected. It is further stated that, if at all the function hall is in the alignment of the land for acquisition, compensation will be worked out with 100% solatium on the valuation of the structure to be assessed by the R&B Department. It is further stated that, only the brief description of the lands proposed for acquisition will be notified under Section 3A(1) of the N.H.Act, 1956 and the owner of the land can be ascertained only after publication of the notification under Section 3A(1), at the time of survey and upon determination of land owner his name will be published in the Declaration to be published under Section 3D(1) of the Act. The petitioner did not utilize the opportunity of inspecting the land plans and other details covered by the notification under Section 3A(1) available in the office of the Competent Authority to know to whom the land under acquisition relates. Hence, rejection of the belated objection filed by the petitioner by an endorsement dated 07.02.2020 by the 5[th]respondent is justified. There are no merits in the writ petition and the same is liable to be dismissed.

4. The 4[th] respondent while reiterating the contents of the counter-affidavit filed by the 5[th] respondent further stated that, the plea taken by the petitioner that Covid-19 pandamic incapacitated him from filing objections is not correct in view of the fact that the pandemic situation started in the month of March, 2020 only, whereas the petitioner has submitted his objections on 03.02.2020 and 04.02.2020 before the 5[th]respondent. It is further stated that the interim direction given by this Court on 19.08.2020 was received by the 4[th] respondent office on 21.09.2020 and the extension of interim orders dated 27.08.2020 was downloaded on 22.09.2020 and hence the 4[th] respondent is unaware of the interim orders granted by this Court till 21.09.2020. It is further stated that, pursuant to the proposals sent by the 5[th] respondent for publication of declaration under Section 3D of the Act vide reference dated 25.08.2020, Section 3D(1) declaration has been published in the Government of India Gazette No.2806 dated 15.09.2020 and after receipt of interim orders in this case on 21.09.2020, further publication of public notice under Section 3G(3) (Award enquiry) is kept pending with regard to the petitioner’s land is concerned. Hence, prayed to vacate the interim orders granted on 19.08.2020 and extended on 27.08.2020 and dismiss the writ petition with costs.

5. The petitioner filed reply to the counters filed by the respondent Nos. 4 and 5 reiterating the contents of the writ affidavit and further submitting that, in the notification dated 31.10.2019 published under Section 3A(1) of the act, the subject property is described as agricultural land, whereas the subject property is a part of function hall hearing House No.21-167 and thus the petitioner could not file objections pursuant to Section 3A(1) notification as the property sought to be acquired is not correctly described and as the petitioner has not been given an opportunity of personal hearing, all the subsequent proceedings including declaration published under Section 3D of the Act on 25.08.2020,are illegal, void and unenforceable. It is further stated that, part of the petitioner’s property was already acquired and he has converted the remaining land into a function hall and if the property proposed for acquisition is also acquired and that too without hearing the petitioner, he would be put to irreparable loss and hardship. Hence, prayed to allow the writ petition.

6. Heard Sri Ghanta Rama Rao, learned senior counsel, for Sri Ghanta Sridhar, learned counsel for the petitioner, and Sri S.S.Varma, learned Standing Counsel for National Highways Authority.

7. Sri Ghanta Rama Rao, learned senior counsel, while reiterating the contents of the writ petition, would submit that the notification is not in conformity with the provisions contained in Section 3A of the Highways Act and according to the said notification private dry land to an extent of 0.1000755 acre was to be acquired, whereas there are 12 persons owning different extents of land in the said survey number and that too the land belongs to the petitioner was covered with a function hall and thus the petitioner could not know that his property is going to be acquired and hence he could not submit his objections within 21 days from the date of publication of 3A notification. The learned senior counsel would further submit that, immediately after coming to know that his land is sought to be acquired, he made a representation to the authority, but the authority erroneously refused to consider the same, since filed beyond the period specified under the Act vide the impugned endorsement. Thus, the action of the respondent authority is arbitrary, illegal and in gross violation of principles of natural justice.

8. On the other hand, the learned Standing Counsel for 4[th]respondent National Highways Authorities of India would submit that, the notification issued by the authorities under Section 3(A) of the Act contained a brief description of the properties sought to be acquired, but the petitioner did not file objections within the stipulated period and only with a view to get over limitation, he has come up with a false theory as if he could not know that his land is sought to be acquired by the authorities. The authorities have rightly declined to consider the representation made by the petitioner giving a specific reason that the representation having not been filed within the period of limitation cannot be considered.

The learned Standing Counsel would further submit that the notification itself mentions that, the land plan and the other details of the land covered under the notification is available in the Office of the Competent authority and the party interested can inspect the plan. The learned Standing Counsel while relying on the decision in Union of India v. Dr. Kushala Shetty & others[1] has argued that when the plan is made part of the notification by making a reference of the same and allowing inspection by the interested parties, the notification is in conformity with the provisions contained under Section 3A of the Act, therefore, the Competent authority has rightly rejected the objections filed by the petitioner on the ground that they were not filed within the time stipulated under Section 3C of the Act and the impugned order does not call for any interference.

The learned Standing counsel would further submit that, pursuant to proposals sent by 5[th] respondent, Declaration under Section 3(D)(1) of the

1. AIR 2011 SC 3210

Act has been published in Government of India Gazette dated 15.09.2020 and as per Section 3(D)(4) of the Act the said declaration cannot be called in question in any Court and thus the Writ Petition filed by the petitioner is not maintainable and the same is liable to be dismissed.

The learned Assistant Government Pleader for Revenue while reiterating the contents of the counter, contended that no valid and justifiable grounds are raised in the present writ petition and hence prayed to dismiss the writ petition.

9. Perused the material available on record and considered the submissions made by the learned counsel. Sections 3-A, 3-C and 3-D of the Act, which are relevant for the present purpose, read as under:

“3-A.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.

(2) Every notification under sub-section (1) shall give a brief description of the land.

(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.

***

3-C.Hearing of objections.—(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of Section 3-A, object to the use of the land for the purpose or purposes mentioned in that sub-section.

(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.

Explanation.—For the purposes of this sub-section, ‘legal practitioner’ has the same meaning as in clause (i) of sub-section (1) of Section 2 of the Advocates Act, 1961 (25 of 1961).

(3) Any order made by the competent authority under sub-section (2) shall be final.

3-D.Declaration of acquisition.—(1) Where no objection under sub- section (1) of Section 3-C 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 3-A.

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

(3) Where in respect of any land, a notification has been published under sub-section (1) of Section 3-A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:

Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of Section 3-A is stayed by an order of a court shall be excluded.

(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.”

10. Section 3D(4) of the Act envisages that declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority. In the case on hand, it is the contention of the respondents 4 and 5 that the Central Government has published declaration under Section 3D(1) of the Act and thus the notification issued under Section 3A(1) cannot be called in question in this writ petition.

11. It is relevant here to note that this Court, on 19.08.2020, granted interim direction staying all further proceedings pursuant to impugned notification and the same is being extended from time to time and the same is in force as on today. The declaration under Section 3D(1) was published on 15.09.2020 i.e. say after all further proceedings were stayed by this Court. Thus, the contention of the respondents that since declaration was published the acquisition proceedings cannot be called in question has no force.

12. The objections filed by the writ petitioner were rejected. For clarity, the impugned endorsement is extracted hereunder:

“With reference to your letter in the reference cited it is to inform you that the 3A(1) under NHAI Act 1956 was published in the daily News papers “The Hindu” and “Sakshi” on 31.10.2019 and there are no objections received in this regard to be filed within 21 days as per 3C(1) of NH Act, 1956.

Therefore, your application in the reference cited requesting for exemption of acquisition the land in RS.No.930/A1, of Pedakakani village is hereby rejected.”

13. Thus, it shows that the objections filed by the petitioner were rejected on the sole ground that they were not submitted within 21 days as stipulated in Section 3C(1) of the Act.

14. Section 3A(2) of the Act stipulates that a brief description of the land has to be given. The learned Standing counsel for respondents justifies the notification contending that it did contain brief description of the land to be acquired and the impugned notification meets that requirement. Whereas, the learned counsel for the petitioner lays emphasis on the classification of the land and though about 12 persons own land in that survey number, there is no clarity in the notification regarding whose land is sought to be acquired.

15. The 3A(1) notification shows that an extent of Ac.0-1000755 of dry land is sought to be acquired in Survey No.930/A1. The contention of the petitioner that the petitioner’s land sought to be acquired is a part and parcel of a function hall, but not an open land as described in the notification, is not denied by respondents 4 and 5 in specific terms. There is also no challenge from the respondents to the contention that as much as 12 persons own different extents in Survey No.930/A1. Hence, there is force in the contention of the petitioner that since the land sought to be acquired in the notification is shown as an open land and as there is no clarity as to whose land out of the land owned by 12 persons in the said survey number is sought to be acquired and he was unable to know that his land is sought to be acquired.

16. Thus, though a brief description of the property sought to be acquired is sufficient to be mentioned in the notification, the subject notification is vague regarding the classification of the land so far as it relates to the petitioner and it did not accurately specifies that the land belonging to the petitioner is going to be acquired. Therefore, there is justification for the petitioner is not filing objections within the time stipulated under Section 3C(1) of the Act and this Court finds some force in his contention that soon after coming to know that his property is sought to be acquired, he filed objections before the 5[th] respondent. Though there is no dispute regarding principle of law laid down in the decision relied on by the learned Standing counsel, however the facts of the case on hand are different and peculiar and they stand on a different footing. Hence, the decision relied on by the learned standing counsel is not applicable to the facts of the case. No doubt the notification mentions that plan is available with the competent authority. However, since the classification of the land is wrongly mentioned in the notification as an open land instead of mentioning it as a part of the function hall, there is justification for the petitioner to contend that he was unable to know that his land is sought to be acquired under the notification.

17. In view of the above, the action of the 5[th] respondent-Competent authority in rejecting the objections filed by the petitioner on the sole ground that they were not filed within the stipulated time, is unsustainable and the same is liable to be set aside.

18. Accordingly, the writ petition is disposed of, setting aside the impugned endorsement dated 07.02.2020 in Rc.No.1706/2019-M passed by the 5th respondent and the 5[th] respondent-Competent authority is

directed to consider the objections filed by the petitioner on 03.02.2020 and 04.02.2020 as if they were filed within the period stipulated under Section 3C(1) of the Act and pass a reasoned order by following the procedure contemplated under Section 3C(2) of the Act, within in a period of two (02) months from the date of receipt of copy of this order and further consequential steps afresh. There shall be no order as to costs.

As sequel thereto, miscellaneous petition, if any, pending shall stand closed. Interim orders, if any, shall stand vacated.

30[th] December, 2022

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JUSTICE RAVI CHEEMALAPATI

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HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

WRIT PETITION No.14333 of 2020

30[th] December, 2022

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