IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.02.2007
CORAM:
THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN
W.P.Nos.1482 AND 1869 OF 2007
And
M.P.Nos. 2, 3, 1 and 4 of 2007
Shri Andal Alagar Kalyana Mandapam
Private Limited, Rep., by its
Managing Director Mrs.V.Prremalatha,
No.54-A, Kannammal Street,
Kannabiran Colony,
Chennai-600 093. .. Petitioner in WP 1482/2007
1.Mrs.V.Prremalatha
2.A.Vijayakant
3.Mrs.K.Amsaveni
4.Mrs.R.Radha
5.Mr.L.K.Sudhish
6.Mrs.Devaki Nagarajan .. Petitioners in WP 1869/2007
vs.
1.The Union of India rep., by its Secretary,
Ministry of Shipping, Road Transport
and Highways, Department of Road
Transport and Highways, New Delhi.
2.The Competent Authority and
Special District Revenue Officer (L.A.),
National Highway Schemes,
Kancheepuram and Tiruvallur Districts,
R.D.O. Office, Kancheepuram.
3.The Project Director,
National Highways Authority of India,
SPIC House, No.88, Anna Salai,
Guindy, Chennai-600 032.
4.Hon'ble Minister Mr.T.R.Balu,
Ministry of Shipping,
Road Transport and Highways,
Department of Road Transport and
Highways, New Delhi.
5.The Central Public Information Officer,
National Highways Authority of India,
Central Information Commission,
Old JNU Campus, Block-IV,
5th Floor, New Delhi-110 067. .. Respondents in both WPs
WP No.1482/2007:
Writ petition filed under Article 226 of the Constitution
of India praying for the issue of a Writ of Certiorarified
Mandamus, calling for the entire records of the first respondent
relating to the impugned Notification in S.O.No.1622(E), dated
18.11.2005 of the first respondent and the records relating to the
consequential award passed by the second respondent in
Rc.No.466/2005/NH dated 8.12.2006 in respect of the petitioner’s
Kalayana Mandapam situated on the lands comprised in T.S.Nos.14/1,
14/2, 14/3 and 15/2 in Block No.43 to an Plot area of 3642 square
metres at No.106, Koyambedu Village, Egmore-Nungambakkam Taluk,
Chennai District as referred in the impugned award and quash the
said impugned Notification in S.O.No.1622 (E) dated 18.11.2005 and
the consequential award in Rc.No.466/2005/NH dated 8.12.2006 and
consequently to forbear the official respondents from acquiring
the portion of lands wherein the superstructures are put up in
Survey Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 in Koyambedu
Village, Chennai District.
WP No.1869/2007:
Writ petition filed under Article 226 of the Constitution
of India praying for the issue of a Writ of Certiorarified
Mandamus, calling for the entire records of the first respondent
relating to the impugned Notification in S.O.No.1622(E), dated
18.11.2005 of the first respondent and the records relating to the
consequential award passed by the second respondent in
Rc.No.466/2005/NH dated 8.12.2006 in respect of the petitioner’s
land and building comprised in T.S.Nos.14/1, 14/2, 14/3 and 15/2
in Block No.43 to an extent of 2164.5 square metres at No.106,
Koyambedu Village, Egmore-Nungambakkam Taluk, Chennai District as
referred in the impugned award and quash the said impugned
Notification in S.O.No.1622 (E) dated 18.11.2005 and the
consequential award in Rc.No.466/2005/NH dated 8.12.2006 and
consequently to forbear the official respondents from acquiring
the portion of lands wherein the superstructures are put up in
Survey Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 in Koyambedu
Village, Chennai District.
For petitioners in both WPs : Dr.Rajeev Dhavan,
Senior Counsel for
Mr.S.Manimaran.
For Respondents-1&2 : Mr.V.T.Gopalan,
in WP 1482/2007 and Addl. Solicitor General
for Respondents 1to 3
in WP 1869/2007
For Respondents-3&4 : Mr.P.Wilson,
in WP 1482/2007 and Asst. Solicitor General
for Respondent-4 in
WP 1869/2007
COMMON ORDER
Under the National Highways Development Project Phase-I,
known as “Golden Quadrilateral”, the Government of India proposed
three Grade Separators, along National Highways 4, 45 and 205 in
the City of Chennai, in three major arterial junctions, viz.,
Kathipara (Guindy), Koyambedu and Padi, apart from a flyover in
front of Chennai Air Port.
2. By a notification of the Government of India, Ministry
of Shipping, Road Transport and Highways (Department of Road
Transport and Highways) bearing No.S.O.1130(E) dated 12.8.2005,
published in the Gazette of India, Extraordinary, Part-II, Section
3, Sub Section (ii) dated 12.8.2005, issued under Section 3-A (1)
of the National Highways Act, 1956, (hereinafter referred to as
the ‘Act’) the proposal to acquire several lands in Koyambedu
Village, Egmore-Nungambakkam Taluk, Chennai District was notified
as being required for the public purpose of construction of free
flow facilities along National Highway No.4. The substance of the
said notification was published in one English Daily and one
Vernacular Daily on 20.8.2005 and after considering the objections
raised by some of the land owners, with reference to the remarks
of the National Highways Authority of India, a declaration under
Section 3-D (1) of the Act was issued by way of a notification in
S.O.1622(E) dated 18.11.2005. The said declaration was also
published in the Newspapers on 15.12.2005 and an award was passed
on 8-12-2006.
3. The lands in New Survey Nos.14/1, 14/2, 14/3 and 15/2,
measuring 1582 sq.mtrs., 286 sq.mtrs., 165 sq.mtrs., and 1083.5
sq.mtrs., respectively, of Koyambedu Village, Egmore-Nungambakkam
Taluk, owned by six members of a family, formed part of the said
acquisition. These six members of the family have joined together
and filed a writ petition in W.P.No.1869 of 2007, challenging the
declaration issued under Section 3-D (1) as well as the Award
passed on 8.12.2006.
4. Two out of the six land owners, are the Managing
Director and Director of a Private Limited Company by name Shri
Andal Alagar Kalyana Mandapam Pvt. Ltd., which owns a Kalyana
Mandapam constructed on the aforesaid lands. Therefore, as the
owner of the superstructure, the said Private Limited Company has
also filed a writ petition in W.P.No.1482 of 2007, challenging the
declaration dated 18.11.2005 issued under Section 3-D(1) as well
as the Award passed on 8.12.2006.
5. I have heard Dr.Rajeev Dhavan, learned Senior Counsel
appearing for the petitioners in both the writ petitions,
Mr.V.T.Gopalan, learned Additional Solicitor General and
Mr.P.Wilson, learned Asst. Solicitor General for Official
respondents in both the writ petitions.
6. Before getting into the rival submissions, it is
necessary to set out the list of dates and events, on which there
is no controversy. They are as follows:-
12.08.2005 Notification under section 3-A issued in
Government Gazette20.08.2005 Paper Publication of the substance of
Notification made12.09.2005 Competent Authority writes to Project
Director seeking for remarks on objections by land owners14.09.2005 Remarks sent by NHAI to Competent
Authority29.09.2005 Proceedings of DRO u/s 3(C)(2) of NH Act
18.11.2005 Notification under Section 3-D(1) issued in
Gazette20.12.2005 Publication in News Papers of the
declaration under Section 3-D(1)05.01.2006 One of the writ petitioners write to the
Competent Authority claiming that no
notice was issued and no sketch was
furnished and that therefore she was not
aware of the portion of the land sought to
be acquired.
By the said letter, the writ petitioner
seeks information regarding the portion of the land sought to be acquired, along with a field map or sketch. She also encloses copies of documents of title.
31.01.2006 Legal notice issued by the Counsel for the
writ petitioner reiterating her claim that
no notice was issued and no sketch was
furnished and that therefore she was not
aware of the portion of the land sought to
be acquired. Hence, the counsel also seeks
the field map and sketch.
19.02.2006 An interview allegedly given by the
fourth respondent (Minister) to the Press,
is published in a Tamil Daily Newspaper.
As per the Newspaper report, the fourth
respondent indicated that the Central
Government was prepared to reconsider
if an alternative proposal is submitted by
the petitioners.
03.03.2006 Representation submitted by one of the
writ petitioners along with an alternative
Plan and a Technical Opinion from a
retired Chief Urban Planner of the
Chennai Metropolitan Development
Authority.
01.11.2006 Alternative proposal of the writ petitioner
rejected by the Government of India
20.11.2006 Request made by the writ petitioner for
reconsideration of the matter
08.12.2006 Award passed by the Competent
Authority
11.12.2006 Letter of the Competent Authority
to collect the award amount
28.12.2006 Notice issued to Writ Petitioner u/s
3-E(1) of the Act by the Competent
Authority
03.01.2007 Petition for reconsideration also rejected
05.01.2007 Writ petitions filed
7. In the background of the events short listed above,
Dr.Rajeev Dhavan, learned Senior Counsel for the petitioners
contended that the whole sequence of events, could be dissected
into two parts, viz., (i) the events commencing from the
notification under Section 3-A(1) (dated 12.8.2005) and
culminating in a declaration under Section 3-D(1) (dated
20.12.2005); and (ii) the events starting from the request of the
petitioner for details, by her letter dated 5.1.2006 and her
proposal dated 3-3-2006 for an alternative Plan, culminating in
the rejection of the alternative proposal on 1.11.2006 and the
Award passed on 8.12.2006.
8. In so far as the first part of the sequence of events is
concerned, Dr.Rajeev Dhavan, learned Senior Counsel contended that
the notification under Section 3-A(1) as well as the declaration
under Section 3-D(1) are vitiated for two reasons, viz.,:-
(a) that the names of the owners of
these lands were wrongly mentioned in respect
of Survey Nos.14/1 and 15/2, though they were
correctly mentioned in respect of Survey
Nos.14/2 and 14/3; and
(b) that the precise details of the
lands sought to be acquired, with reference to
the sketch/field map and their portion as part
of the whole, were not mentioned in the
notification, reducing the opportunity of
submitting objections into an empty formality
and a mockery.
9. In so far as the second part of the sequence of events
is concerned, the learned Senior Counsel for the petitioners
contended –
(a) that there was a promissory estoppel
on the part of the respondents in respect of the
alternative proposal submitted by the
petitioners;
(b) that the petitioners developed a
legitimate expectation, in view of the promises
made by the fourth respondent that their Kalyana
Mandapam could be retained in tact;
(c) that the invitation for an
alternative proposal before the ensuing
Elections and the rejection of the alternative
proposal after the Elections, exposed the mala
fide intentions on the part of the fourth
respondent; and
(d) that even while exercising their
powers as administrative authorities, the
respondents are duty bound to adopt the least
invasive or least restrictive choice of
measures, so that there is “proportionality” and
“reasonableness” in the administrative action.
10. Per contra, Mr.V.T.Gopalan, learned Additional
Solicitor General contended –
(a) that the challenge to the
acquisition proceedings, having been made after
the property vested with the Central Government
under Section 3-D (2) and after the Award was
passed under Section 3-G, was not maintainable;
(b) that the proposal for an alternative
Plan itself, having emanated after the
declaration under Section 3-D(1) and after the
property having vested with the Central
Government under Section 3-D(2), could not have
been considered in the teeth of the provisions
of the Act;
(c) that the question of mala fides did
not arise in as much as the very proposal for
acquisition was mooted way back in the year 2004
with the preparation of a Detailed Project
Report, survey of the lands, floating of tenders
etc., while one of the petitioners admittedly
started a Political Party only in September,
2005 and that therefore no one could have
envisaged the future course of events at that
stage;
(d) that there was no promise and that
there could not have been a promise against
statutory provisions and hence the question of
promissory estoppel did not arise; and
(e) that the course of events showed
that there was no scope for legitimate
expectation.
Now let us consider the rival submissions one after another.
I. CHALLENGE TO THE ACQUISITION ON THE GROUND OF
VAGUENESS AND LACK OF PARTICULARS:
11. Assailing the acquisition proceedings on the ground of
vagueness and lack of particulars, Dr.Rajeev Dhavan, learned
Senior Counsel for the petitioners, drew my attention to the
notification under Section 3-A(1) and pointed out that the
notification did not mention the names of the owners of any of the
lands sought to be acquired. In Column No.2 of the Schedule to the
notification, the Survey Numbers are mentioned with or without the
word “Part”, Column No.3 mentioned the type of land as “Private or
Government”, Column No.4 mentioned the nature of land as “Ryotwari
Manai” or “Village Natham” and Column No.5 mentioned the extent in
square metres. There were no details in the notification regarding
the portion of the land sought to be acquired, wherever only a
part of the land was sought to be acquired. Therefore, the land
owners, even if they had any notice regarding the acquisition,
they did not have any information regarding the portion of the
land sought to be acquired.
12. Section 3-A(2) of the National Highways Act, 1956,
hereinafter referred to as the ‘Act’, made it mandatory for every
notification to contain a brief description of the land. The
Section reads as follows:-
“3-A. POWER TO ACQUIRE LAND ETC.–
(1) .. .. .. ..
(2) Every notification under Sub
Section (1) shall give a brief description of
the land.”
13. In order to drive home the aforesaid contention, the
learned Senior Counsel for the petitioners, relied upon the
decisions of the Supreme Court in Munshi Singh and Others vs.
Union of India ((1973) 2 SCC 337)), State of Orissa vs. Sridhar
Kumar Mallik and Others ((1985) 3 SCC 697)), Om Prakash Sharma and
Others vs. M.P.Audyogik Kendra Vikas Nigam and Others ((2005) 10
SCC 306)) and Competent Authority vs. Barangore Jute Factory and
Others ((2005) 13 SCC 477)).
14. In Munshi Singh case, the Supreme Court found on facts
that the notification under Section 4(1) was vitiated by vagueness
and indefiniteness of the public purpose for which the land was
sought to be acquired. Therefore, the Supreme Court held in para-
9 that if the opportunity to file objections and participate in
the enquiry under Section 5-A has any purpose and if it has to be
given its full effect, the notification under Section 4(1) must
give some definite indication or particulars of the purpose. But
while holding so, the Supreme Court also gave reasons for such a
conclusion in the following words, in para-9:-
“In the absence of such specific or
particular purpose being stated the objector
cannot file any proper or cogent objections
under Section 5-A which he has a right to do
under that provision. We would accordingly
hold that owing to the vagueness and
indefiniteness of the public purpose stated
in the notifications under Section 4(1) and
in the absence of any proof that the
appellants were either aware of or were shown
the scheme or the Master Plan in respect of
the planned development of the area in
question the appellants were wholly unable to
object effectively and exercise their right
under Section 5-A of the Acquisition Act.”
Thus, the Supreme Court was convinced on facts in the said case
that the appellants therein were neither aware of nor shown the
scheme or Master Plan in respect of planned development of the
area in question.
15. In State of Orissa vs. Sridhar Kumar Mallik (1985 (3)
SCC 697), the Supreme Court was concerned with a proclamation
issued under Section 417-A (1-a) of the Orissa Municipal Act,
1950. The proclamation was intended to extend the Orissa
Municipality Act, 1950, to an area other than a Municipality,
leading to certain consequences such as the imposition of
different kinds of taxes. Therefore, the law laid down therein
that the proclamation must be precise and clear and must indicate
with sufficient accuracy, the area intended to be notified, cannot
be imported to a case of land acquisition.
16. In Om Prakash Sharma case (2005 (10) SCC 306), the
notification under Section 4(1) of the Land Acquisition Act, 1894,
was held to be invalid, on account of the fact that neither the
survey numbers nor the names of the land owners were furnished in
the notification. But in the present case, the survey numbers as
well as the extent are mentioned and hence it cannot be compared
with Om Prakash Sharma case.
17. Heavy reliance was placed by the learned Senior Counsel
for the petitioners, on the judgment in Competent Authority vs.
Barangore Jute Factory (2005 (13) SCC 477). The facts of the said
case come almost closer to the facts of the case on hand. That was
also a case under the National Highways Act, 1956. As in the
present case, the notification under Section 3-A(1) contained the
details of the survey numbers, extent of land, classification of
land etc. But many of the lands sought to be acquired in that case
were only part of the whole land in certain survey numbers.
Therefore, a contention was raised that when only a part of a
larger tract or larger chunk of land was sought to be acquired,
the land owners will not be in a position to know which part was
acquired and they would not be in a position to object to the
acquisition effectively. Considering the scope of the requirement
under Section 3-A(2) to give a brief description of land, the
Supreme Court held in para-5 of the said judgment as follows:-
“So far as the question whether the
impugned notification meets the requirement of
Section 3-A(1) of the Act regarding giving
brief description of land is concerned, we have
already shown that even though plot numbers of
lands in respect of each mouza are given,
different pieces of land are acquired either as
whole or in part. Wherever the acquisition is
of a portion of a bigger piece of land, there
is no description as to which portion was being
acquired. Unless it is known as to which
portion was to be acquired, the petitioners
would be unable to understand the impact of
acquisition or to raise any objection about
user of the acquired land for the purposes
specified under the Act or to make a claim for
compensation. It is settled law that where a
statute requires a particular act to be done in
a particular manner, the act has to be done in
that manner alone. Every word of the statute
has to be given its due meaning. In our view,
the impugned notification fails to meet the
statutory mandate. It is vague. The least that
is required in such cases is that the
acquisition notification should let the person
whose land is sought to be acquired know what
he is going to lose. The impugned notification
in this case is, therefore, not in accordance
with the law.”
18. Even in the present case, the notification under
Section 3-A (1) shows that in respect of a few survey numbers, the
entire land in the survey number is sought to be acquired and in
respect of a few survey numbers, only a part of the land is sought
to be acquired. The details of the portion of the land to be
acquired and the portion of the land left out, are not indicated
in the notification and hence the ratio laid down in the aforesaid
decision of the Supreme Court appears, on a cursory glance, to be
squarely applicable to the case on hand. But it is not so.
19. After laying down the law in para-5 (as extracted
above), the Supreme Court, qualified the same with a rider in
paras-6 and 7 as follows:-
“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 levelled on the
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 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 anything 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 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 PWD
plan. PWD 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.”
20. Thus, the acquiring authority failed at two levels in
the said case before the Supreme Court, viz., (i) by failure to
append a plan to the notification and (ii) by failure to produce a
plan even at the time of hearing, so as to link the same with the
notification. But in the present case, the notification published
in the Gazette of India under Section 3-A (1) of the Act,
contained the following information, as part of the notification
itself, immediately before the schedule:-
“The land plans and other details of
the land covered under this notification are
available and can be inspected by the
interested persons at the Office of the
Competent Authority.”
21. The notification dated 12.8.2005 gave a time limit of
21 days for any person interested in the lands to raise objections
under Section 3-C (1) of the Act and admittedly, the petitioners
failed to avail the said opportunity. The petitioners did not
avail either the opportunity to file objections in response to the
notification dated 12.8.2005 or the opportunity to inspect the
land plans and other details at the Office of the Competent
Authority, despite an offer being made in the notification itself.
Therefore, on facts, I find that the law laid down by the Supreme
Court in Competent Authority vs. Barangore Jute Factory (2005 (13)
SCC 477), is not applicable to the case on hand. A similar view is
taken by the Division Bench of this Court in The General Manager
(Tech.) and Project Director, National Highways Authority of India
vs. Mrs.Sridevi and Others (2006 (5) CTC 634), whereby the
Division Bench distinguished the aforesaid decision of the Supreme
Court with reference to the specific statement made in the
notification itself to the effect that the land plans and other
details can be inspected by any person interested at the Office of
the Competent Authority.
22. In any event, the petitioners may not be entitled to
raise the issue of vagueness in notification, since the sequence
of events show that the petitioners have understood what portions
of the land are sought to be acquired. As observed by the Supreme
Court in para-8 of the aforesaid decision, the absence of a plan
renders the right to file objections, nugatory. As a necessary
corollary, clarity in the notification was always insisted, only
for the purpose of making the opportunity to file objections
meaningful. In this case, after having sent a letter dated
5.1.2006, followed by a legal notice dated 31.1.2006, feigning
ignorance of the details, the petitioners were able to submit an
alternative proposal on 3.3.2006, with an expert opinion from a
retired Chief Urban Planner of the Chennai Metropolitan
Development Authority. Thus, the petitioners appear to have
understood precisely, what portion of the land was going to be
acquired and what portion was going to be left out. Without such
an understanding, the petitioners could not have submitted an
alternative proposal with an expert opinion. Therefore, the
absence of precise details in the notification, had not prejudiced
the rights of the petitioners.
23. It is also pertinent to note that the petitioners have
not chosen to challenge the notification under Section 3-A(1)
dated 12.8.2005, but chosen to challenge only the declaration
under Section 3-D(1) dated 18.11.2005 and the Award passed on
8.12.2006. As a matter of fact, the petitioners have stated in
para-10 of the affidavit in support of W.P.No.1482 of 2007 that
they have no objection for the acquisition of their vacant portion
of land. After having said so, it is not open to the petitioners
to contend that the notification under Section 3-A(1) is vitiated
on account of vagueness.
24. As rightly contended by the learned Additional
Solicitor General, the notification under Section 3-A(1) was
issued on 12.8.2005, the declaration under Section 3-D(1) was
issued on 18.11.2005 and the substance of the declaration under
Section 3-D(1) was published in the Newspapers on 20.12.2005.
Consequently, the property vested with the Central Government by
virtue of Section 3-D(2) and the Award itself was passed on
8.12.2006. The petitioners chose to come to Court only in January
2007, after allowing the Award to be passed. The Supreme Court, in
Municipal Corporation of Greater Bombay vs. Industrial Development
Investment Co. Pvt. Ltd and Others ((1996) 11 SCC 501)), traced
the history of law relating to the maintainability of a challenge
to the acquisition proceedings, after the Award is passed, from
paragraph-23 onwards and held in para-29 that the Court should be
loath to quash the notifications, when there is inordinate delay
in filing the writ petition and when all steps taken in the
acquisition proceedings have become final.
25. In Municipal Council, Ahmed Nagar vs. Shah Hyder Beig,
2000 (2) SCC 48, the Supreme Court held in para-17 as follows:-
“17. In any event, after the award is
passed no writ petition can be filed
challenging the acquisition notice or against
any proceeding thereunder. This has been the
consistent view taken by this Court and in one
of the recent cases.”
26. Though the aforesaid view that no writ petition can be
entertained after the Award is passed, appears to have been
explained in the latest decision relied upon by the learned Senior
Counsel for the petitioners in Competent Authority vs. Barangore
Jute Factory (2005 (13) SCC 477), the same need not detain us for
long in view of the fact that the said decision is not applicable
to the facts of the present case, for the reasons stated in
paragraphs-20 and 21 above.
II. PROMISSORY ESTOPPEL:
27. Coming to the second part of the sequence of events,
commencing from the Newspaper report dated 19.2.2006, the learned
Senior Counsel for the petitioners contended that the very
invitation for an alternative proposal from the Minister concerned
(the 4th respondent herein), amounted to promissory estoppel.
Drawing my attention to the judgment of the Supreme Court in Union
of India vs. Godfrey Philips India Ltd (AIR 1986 SC 806), the
learned Senior Counsel contended that the doctrine of promissory
estoppel is well established in the Administrative Law of India.
It represents a principle evolved by equity to avoid injustice. In
para-9 of the said judgment, the Supreme Court explained the
doctrine in the following words:-
“The true principle of promissory
estoppel is that where one party has by his
word or conduct made to the other a clear and
unequivocal promise or representation which is
intended to create legal relations or affect a
legal relationship to arise in the future,
knowing or intending that it would be acted
upon by the other party to whom the promise or
representation is made and it is in fact so
acted upon by the other party, the promise or
representation would be binding on the party
making it and he would not be entitled to go
back upon it, if it would be inequitable to
allow him to do so, having regard to the
dealings which have taken place between the
parties.”
28. The learned Senior Counsel relied upon the decision in
Delhi Cloth and General Mills Ltd vs. Union of India (1988 (1) SCC
86), to drive home the point that it is not necessary to prove any
damage, detriment or prejudice to the party asserting the
estoppel. The Supreme Court held in the said case in para-24 as
follows:-
“24. The concept of detriment as we now
understand it is whether it appears unjust,
unreasonable or inequitable that the promisor
should be allowed to resile from his assurance
or representation, having regard to what the
promisee has done or refrained from doing in
reliance on the assurance or representation.”
29. The doctrine of promissory estoppel, according to the
learned Senior Counsel for the petitioners, took a leap forward,
in the decision of the Supreme Court in State of Punjab vs. Nestle
India Limited (2004 (6) SCC 465), where the Supreme Court held
that the principle would be applied even when the promise is
intended to create legal relations or affect a legal relationship
which would arise in future. In para-29 of the said judgment, the
Supreme Court made it clear that the Government was equally
susceptible to the operation of the doctrine, in whatever area or
field the promise is made – contractual, administrative or
statutory.
30. There is no doubt about the applicability of the
doctrine even to administrative or statutory functions of the
Government. But there are well known pre-conditions for the
applicability and the operation of the doctrine, which are spelt-
out in para-28 of the judgment in Nestle India case. They are as
follows:-
“(1) a clear and unequivocal promise
knowing and intending that it would be acted
upon by the promisee;
(2) such acting upon the promise by the
promisee so that it would be inequitable to
allow the promisor to go back on the promise.”
31. Applying the above two pre-conditions, I do not find in
this case that there was either a clear and unequivocal promise by
the respondents including the 4th respondent or such an acting on
the part of the petitioners as would make it inequitable to allow
the respondents to go back on the same. Even if we go by the
Newspaper report dated 19.2.2006, the statement that is attributed
to the fourth respondent is that the Central Government was
prepared to reconsider the matter, if any alternative proposal,
which would not affect the other land owners, was submitted. Even
if such a statement is taken to be a promise, by stretching it a
little in favour of the petitioners, I do not find that the
petitioners have acted on the promise in such a manner or altered
their position to such an extent, as would make it inequitable to
permit the respondents to go back on the same. All that the
petitioners have done in response to the said statement, is to
submit an alternative proposal. The position of the petitioners
did not get altered on account of the promise and their acting on
the promise and they did not become worse off on account of the
said statement and the submission of an alternative proposal.
There is no averment in the affidavits in support of the writ
petitions that the petitioners altered their position, on account
of the statement made by the fourth respondent, as reported in the
Press on 19.2.2006. Therefore, I am of the considered view that
there was neither a promise nor an estoppel in this case.
III. LEGITIMATE EXPECTATION:-
32. Dr.Rajeev Dhavan, learned Senior Counsel for the
petitioners contended that the promise made by the fourth
respondent in his Press interview as reported in the Newspaper on
19.2.2006, inviting alternative proposal, gave rise to a
legitimate expectation on the part of the petitioners, even if the
same is not taken to have conferred a legal right upon the
petitioners. Therefore, it is the contention of the learned Senior
Counsel that the respondents were obliged to give a due
consideration to the alternative proposal made by the petitioners
and that the respondents were duty bound “to treat the citizen
with fullest personal consideration”.
33. In Madras City Wine Merchants’ Association and Another
vs. State of Tamil Nadu (1994 (5) SCC 509), the Supreme Court
considered the doctrine of legitimate expectation at length, from
paragraph-43 onwards upto paragraph-48. In para-45 of the said
judgment, the Supreme Court extracted the meaning of the term
“Legitimate Expectation”, as it appears in Halsbury’s Laws of
England as follows:-
“A person may have a legitimate
expectation of being treated in a certain way
by an Administrative Authority even though he
has no legal right in Private Law to receive
such treatment”.
34. After pointing out that such expectation may arise
either from a representation or promise made by the authority, the
Supreme Court pointed out in the said decision that though there
is an analogy between the doctrines of legitimate expectation and
of estoppel, the two are distinct in that detrimental reliance
upon the representation/promise was not a necessary ingredient of
a legitimate expectation.
35. It is no doubt true that the requirement of “due
consideration” of a legitimate expectation forms part of the
principle of non-arbitrariness, which is a necessary concomitant
of the Rule of Law and the Government Departments are expected to
treat the citizen with fullest personal consideration. But as held
by the Supreme Court in Union of India vs. Hindustan Development
Corporation and Others (1993 (3) SCC 499), which is also quoted
with approval in Madras City Wine Merchants’ Association case:
“if a denial of legitimate expectation
in a given case amounts to denial of right
guaranteed or is arbitrary, discriminatory,
unfair or biased, gross abuse of power or
violation of principles of natural justice,
the same can be questioned on the well known
grounds attracting Article 14 but a claim
based on a mere legitimate expectation without
anything more cannot ipso facto give a right
to invoke these principles. It can be one of
the grounds to consider but the Court must
lift the veil and see whether the decision is
violative of these principles warranting
interference.”
36. The scope and ambit of the doctrine was again lucidly
spelt out in para-35 of the judgment of the Supreme Court in Union
of India vs. Hindustan Development Corporation (1993 (3) SCC 499),
in the following words:-
“It follows that the concept of
legitimate expectation is not the key which
unlocks the treasury of natural justice and it
ought not to unlock the gates which shuts the
Court out of review on the merits, particularly
when the element of speculation and uncertainty
is inherent in that very concept.”
37. In the light of the principles underlying the doctrine
of legitimate expectation as culled out from the decisions of the
Supreme Court, it is clear that the petitioners should establish
that there was no due consideration or fullest personal
consideration or that there was a violation of principles of
natural justice or that the action of the respondents was
arbitrary, discriminatory, unfair or biased or that there was
gross abuse of power, for enabling this Court to apply the
doctrine to the benefit of the petitioners.
38. But a perusal of the records in this case shows that
none of the above principles underlying the doctrine, has been
violated. This is seen from the following sequence of events:-
(a) The petitioners submit an
alternative proposal on 3.3.2006, to the
Central Government, with a copy to the
Competent Authority and Special District
Revenue Officer (LA), National Highways
Schemes, Kancheepuram.
(b) The Competent Authority in turn,
forwards the proposal to the Project Director,
National Highways Authority of India, by a
letter dated 13.3.2006.
(c) The National Highways Authority of
India, forwards the proposal to the Tamil Nadu
Road Development Company Ltd., for an
examination of the proposal, “with reference to
the site conditions” and for submission of a
report.
(d) The Tamil Nadu Road Development
Company Ltd., which is actually a Company
promoted by the Tamil Nadu Industrial
Development Corporation Ltd., and
Infrastructure Leasing and Financial Services
Ltd., examines the proposal and issues a reply
on 9.5.2006 to the National Highways Authority
of India. The contents of the said reply are as
follows:-
“The Land Owner’s Alternate
Proposal does not contain geometric
details of loops and ramps. However,
based on the available details and the
provisions of relevant IRC Codes, the
following brief comments are offered on
the Alternate Proposal:
(a) No provision has been made
for Right turn from Parrys to Padi.
(b) Incorporation of Parrys to
Padi Right turn in the Alternate
Proposal will entail provision of
unacceptable high-grade. As per IRC 86-
1983 Clause 11.2, a max. grade of 4%
only is permissible.
(c) The horizontal geometric
alignment of the Southeast Loop and free
left from Parrys to Guindy do not
satisfy the Codal provisions of IRC 86-
1983. Clause 10.3 which require
provision of super elevation of 4% for a
design speed of 30 kmph.
(d) As per IRC 92-1985 Clause
15.2, the merging in/out length
(acceleration and deceleration lengths)
shall be 180 and 90 m respectively. The
separation between the points of entry
and exist from the Loops does not appear
to be as per this provision.
The objective of constructing this
Interchange at Koyambedu is to provide
free flow facilities to Chennai City
from NH-4. The Alternate Proposal does
not fulfill the objective and is
therefore not implementable.”
(e) The National Highways Authority of
India communicated the opinion of the Tamil
Nadu Road Development Company Ltd., to the
Competent Authority, by a letter dated
20.6.2006 and further pointed out that “the
objective of construction of grade separator at
Koyambedu Junction was to provide free flow of
traffic on all the four directions and that the
alternative proposal of the petitioners did not
fulfill the objectives for which the grade
separator has been proposed at the junction.”
(f) In view of the opinion tendered by
Tamil Nadu Road Development Company Ltd., and
the National Highways Authority of India, the
Central Government informed the petitioners, by
the letter dated 1.11.2006 that the alternative
proposal was found to be technically deficient
and that therefore, it was not possible to
change the layout plan of Koyambedu grade
separator at that stage.
(g) The petitioners sent another
representation dated 20.11.2006 for
reconsideration and the same was also rejected
by an order dated 3.1.2007.
39. The above flow of events shows that there has been a
due consideration of the alternative proposal. The proposal was
examined by an independent expert body namely Tamil Nadu Road
Development Company Ltd (promoted by the Tamil Nadu Industrial
Development Corporation Ltd., and Infrastructure Leasing and
Financial Services Ltd.). Therefore, the rejection of the
alternative proposal also does not appear to be arbitrary or
unfair or violative of the principles of natural justice. Hence, I
am unable to accept the contention that there has been a violation
of the doctrine of legitimate expectation.
40. Moreover, as held by the Supreme Court in Union of
India vs. International Trading Co. And Another (2003 (5) SCC
437):
“The doctrines of promissory estoppel
and legitimate expectation cannot come in the
way of public interest, which has to prevail
over private interest.”
As a matter of fact, the Supreme Court cautioned that “for legal
purposes, expectation is not the same as anticipation”. Therefore,
in my considered view, the petitioners have not made out a case
for the invocation of the doctrine of legitimate expectation.
IV. MALA FIDES:
41. In the affidavits filed in support of the writ
petitions, it is contended by the petitioners that a State
Political Party was formed by one of the writ petitioners in
September 2005 and that the popular support for the party was ever
growing as seen from the fact that even by contesting the Assembly
Elections independently without any alliance in May 2006, it
secured 8.33% of votes polled in the State. It is stated in the
affidavits that on account of the impact created by the Party, the
rival Political Parties decided to throttle and crush the Party
floated by the petitioners even at the threshold. Taking cue from
those averments, the learned Senior Counsel for the petitioners
contended that the invitation for an alternative proposal was made
by the fourth respondent on 19.2.2006, the General Elections to
the State Assembly were held in May 2006, the Elections to the
Local Bodies were held in October 2006 and the rejection of the
alternative proposal submitted by the petitioners was made on
1.11.2006. From this sequence of events, the learned Senior
Counsel wanted to draw an inference that the rejection of the
alternative proposal amounted to mala fide exercise of power in as
much as there was a long gap of about eight months in considering
the alternative proposal and communicating the decision thereon.
It is only during this period of eight months from 3.3.2006 (date
of submission of alternative proposal) to 1.11.2006 (date of
rejection of the same) that the Assembly Elections were held in
May 2006 and Local Body Elections were held in October 2006.
Therefore, the learned Senior Counsel for the petitioners
contended that the reasons for rejection of the alternative
proposal were obvious.
42. In support of his contention about the alleged mala
fide exercise of power, the learned Senior Counsel for the
petitioners relied upon the decisions of the Supreme Court in
S.Partap Singh vs. State of Punjab (AIR 1964 SC 72) and C.S.Rowjee
vs. State of Andhra Pradesh (AIR 1964 SC 962).
43. In Partap Singh’s case, after holding that indirect
motive or purpose or bad faith or personal ill-will is not to be
held established except on clear proof thereof, the Supreme Court
accepted that it is obviously difficult to establish the state of
a man’s mind. Therefore, the Supreme Court concluded in para-8 of
the said judgment that bad faith can be inferred from proved
facts, in the following words:-
“We must, however, demur to the
suggestion that, mala fide in the sense of
improper motive should be established only by
direct evidence that is that it must be
discernible from the order impugned or must be
shown from the notings in the file which
preceded the order. If bad faith would vitiate
the order, the same can, in our opinion, be
deduced as a reasonable and inescapable
inference from proved facts.”
44. After holding so in Partap Singh’s case, the Supreme
Court also added a word of caution in C.S.Rowjee’s case, on the
following lines:-
“It is true that allegations of mala
fides and of improper motives on the part of
those in power are frequently made and their
frequency has increased in recent times. It is
also somewhat unfortunate that allegations of
this nature which have no foundation in fact,
are made in several of the cases which have
come up before the Supreme Court and other
Courts and it is found that they have been made
merely with a view to cause prejudice or in the
hope that whether they have basis in fact or
not, some of it at least might stick.
Consequently it has become the duty of the
Court to scrutinise these allegations with care
so as to avoid being in any manner influenced
by them, in cases where they have no foundation
in fact.”
45. The above note of caution appears to have percolated
down in all subsequent decisions of the Supreme Court. In
E.P.Royappa vs. State of Tamil Nadu (1974 (4) SCC 3), the Supreme
Court held that the burden of establishing mala fides is very
heavy on the person who alleges it. In para-92 of the said
decision, the Apex Court held that “the allegations of mala fides
are often more easily made than proved and the very seriousness of
such allegations demands proof of a high order of credibility.”
46. Again in para-25 of its decision in State of Punjab vs.
V.K. Khanna (2001 (2) SCC 330), the Apex Court held in no
uncertain terms, as to what would constitute “mala fide” in the
following words:-
“The expression “mala fide” has a definite
significance in the legal phraseology and the same
cannot possibly emanate out of fanciful imagination
or even apprehensions but there must be existing
definite evidence of bias and actions which cannot
be attributed to be otherwise bona fide – actions
not otherwise bona fide, however, by themselves
would not amount to be mala fide unless the same is
in accompaniment with some other factors which would
depict a bad motive or intent on the part of the
doer of the act.”
47. In the backdrop of the law laid down by the Supreme
Court on the issue relating to mala fides, if we examine the
pleadings of the petitioners, the documents available on record
and the circumstances surrounding the examination of the
alternative proposal submitted by the petitioners, it is clear
that there has been no mala fide exercise of power. If we again
look into the sequence of events, at the risk of repetition, the
project for construction of “grade separators” for “golden
quadrilateral”, was mooted in 2004 and the notification under
Section 3-A(1) itself was issued on 12.8.2005, one month before
one of the petitioners floated the Political Party on 14.9.2005.
Even before the strength of the said Political Party could become
known in terms of popular support, the declaration under Section 3-
D(1) was issued on 18.11.2005. Therefore, the property actually
vested with the Central Government, by virtue of Section 3-D(2),
immediately after the publication of the declaration under Section
3-D(1). The Press statement attributed to the fourth respondent is
dated 19.2.2006 and the alternative proposal was submitted on
3.3.2006. Thus it is clear that there is no and there cannot also
be, any allegation of mala fides, upto the stage of publication of
the declaration and the vesting of the property in the Central
Government.
48. Coming to the events after the submission of the
alternative proposal, it is seen from the scheme of the Act that
there is no provision in the Act either for divesting or for
reconveyancing, of a land which vests with the Central Government.
While under the Land Acquisition Act, 1894, the Government is
given liberty to withdraw from the acquisition, of any land, of
which, possession has not been taken, under Section 48(1) of the
Act and there is also a provision for reconveyance under Section
48-B of the Act, in so far as the State of Tamil Nadu is concerned
(by virtue of Tamil Nadu Amendment Act 16 of 1997), there is no
similar provision in the National Highways Act, 1956. In order to
remove any doubt about the possible invocation of the provisions
of the Land Acquisition Act, 1894, the National Highways Act,
1956, makes it clear under Section 3-J that “nothing in the Land
Acquisition Act, 1894, shall apply to an acquisition under this
Act”.
49. In the light of the scheme of the National Highways
Act, 1956, and the absence of any provision for divesting or
reconveyancing, I am unable to see how far the respondents
including the fourth respondent could have gone, in considering
the alternative proposal submitted by the petitioners, after the
land vested with the Central Government. Interestingly, there is
not even a provision in the National Highways Act, 1956, akin to
Section 11-A of the Land Acquisition Act, 1894, whereby the
acquisition proceedings would lapse for the failure of the
Collector to pass an Award within a prescribed period. The only
provision in the National Highways Act, 1956, by which the
proceedings shall lapse, is found in Section 3-D(3). It prescribes
that if a declaration under Section 3-D(1) is not published within
one year of a notification under Section 3-A (1), the notification
shall cease to have effect.
50. In this case, the declaration under Section 3-D(1) was
published on 18.11.2005, within one year the notification under
Section 3-A(1) dated 12.8.2005 and hence the land vested in the
Central Government after the publication under Section 3-D(1).
Since the alternative proposal itself was made only on 3.3.2006
after the vesting took place, the acquisition proceedings could
not even have been allowed to lapse, either by not passing an
Award under Section 3-G or by not taking possession under Section
3-E.
51. If the allegation of mala fide exercise of power is
tested in the context of the absence of any provision for
divesting or reconveyancing or for allowing the proceedings to
lapse, the conclusion is inevitable that the fourth respondent
could have done nothing in favour of the petitioners. As a matter
of fact, if the respondents had done anything in favour of the
petitioners, by considering the alternative proposal favourably,
the same might have come under attack from other land owners, as a
mala fide exercise of power in favour of the petitioners. It is
seen from the orders passed under Section 3-C(2) of the Act by the
Competent Authority that even at that stage, many other land
owners came up with alternative proposals for a “realignment of
the grade separator” so as to avoid or minimise the impact of
acquisition. All those proposals for realignment were rejected by
the Competent Authority in his order under Section 3-C (2).
Therefore, if the alternative proposal submitted by the
petitioners after the declaration under Section 3-D(1) had been
considered favourably, the other land owners would have come up
with a challenge to the entire proceedings, on the same grounds on
which the petitioners have now come, with the only difference that
their case might be on a stronger footing in view of the absence
of any provision in the Act for divesting or reconveyancing or for
allowing the proceedings to lapse. Therefore, I am unable to
countenance the challenge of the petitioners to the acquisition
proceedings, as well as to the rejection of the alternative
proposal, on the ground of mala fides.
V. PROPORTIONALITY:
52. Dr. Rajeev Dhavan, learned Senior Counsel for the
petitioners contended that a time has come for the Courts to test
administrative action, on the basis of the doctrine of
proportionality, to find out if the Administrative Authorities
could have adopted the least invasive or least restrictive choice
of measures. Relying upon a passage from the book on
“Administrative Law” by Sir William Wade, the learned Senior
Counsel contended that “the Wednesbury doctrine is now in terminal
decline, but the coup de grace has not yet fallen, despite calls
for it from very high authorities”. Contending that the Wednesbury
test is moving closer to proportionality, the learned Senior
Counsel drew my attention to paragraph-46 of the decision of the
Supreme Court in Teri Oat Estates (P) Ltd vs. U.T. Chandigarh and
Others (2004 (2) SCC 130), which reads as follows:-
“46. By proportionality, it is meant
that the question whether while regulating
exercise of fundamental rights, the appropriate
or least restrictive choice of measures has been
made by the legislature or the administrator so
as to achieve the object of the legislation or
the purpose of the administrative order, as the
case may be. Under the principle, the Court will
see that the legislature and the administrative
authority
“maintain a proper balance
between the adverse effects which the
legislation or the administrative order
may have on the rights, liberties or
interests of persons keeping in mind the
purpose which they were intended to
serve”.”
53. The bone of contention of the learned Senior Counsel
for the petitioners, on this aspect, is that if the respondents
had applied the test of proportionality, the Kalyana Mandapam
erected on the land sought to be acquired at a huge cost, could
have been saved, especially since the petitioners were willing to
give alternative land. Though the said contention of the learned
Senior Counsel is appealing at first sight, I am unable to fall in
love with the same, for the reason that the technical experts in
the field viz., the Tamil Nadu Road Development Company Ltd and
the National Highways Authority of India had examined the proposal
and found it to be technically not feasible. They have also
recorded the reasons for such a conclusion, in their communication
to the Competent Authority. In the alternative plan shown to me by
the learned Senior Counsel for the petitioners, it is seen that
they have adopted a mirror image of the clover-leaf on the North
East, to the South East. But such an adoption is stated to involve
certain difficulties as per the Codal provisions of IRC 86-1983
and 92-1985. It appears that the alternative proposal submitted by
the petitioners would also involve acquisition of the lands or the
additional lands from other persons. Therefore, what could have
been a least restrictive or least invasive choice of measures, for
the petitioners, would have actually become the most restrictive
or invasive choice of measures for another person. Therefore, the
Courts would do well to keep their hands off, when experts form an
opinion. The restraint to be exercised in such cases, is aptly
stated by Justice V.R.Krishna Iyer in Dr.Jagadish Saran and Others
vs. Union of India (1980 (2) SCC 768), in the following words:-
“Judges should not rush in where
specialists fear to tread. .. .. To doubt is
not enough to demolish.”
Therefore, in my considered view, even the doctrine of
proportionality will not go to the rescue of the petitioners.
54. Relying upon the decision of the Supreme Court in
Jnanedaya Yogam and Another vs. K.K.Pankajakshy and Others (1999
(9) SCC 492), the learned Senior Counsel for the petitioners
contended that the Courts have favoured alternative lands for
passages and roads, whenever the original proposal involved
demolition of a superstructure. But I am afraid that the facts in
the said case are on different footing. In the case before the
Supreme Court, the land of the respondent was sought to be
acquired for the purpose of providing passage to Pallivetta
procession of Sree Jagannath Temple, Tellicherry. It involved the
demolition of a shop belonging to the respondent and the
respondent contended that a little diversion of the road may save
her shop without in any way hindering the procession from reaching
the destination. Since the enquiry under Section 5-A had been
dispensed with in the said case, the Supreme Court considered the
alternative proposal and found it to be fair. The only objection
of the appellant, to the alternative proposal was that the
original proposal was considered to be a sanctified route as per
the advice of Astrologers. Therefore, the Supreme Court concluded
that the acquisition cannot be on the basis of sentimental
approach of the authorities and that no valid acquisition under
the Act can be based on Astrologers’ satisfaction only. But in the
present case, the alternative proposal submitted by the
petitioners, was considered by an expert body, which has also
furnished technical reasons for rejecting the same. Therefore, the
same cannot be placed on par with the satisfaction that the
Authorities reached in the case before the Supreme Court.
55. In fine, I am unable to sustain any of the grounds on
which the petitioners have assailed the acquisition proceedings as
well as the rejection of their alternative proposal. Consequently,
both the writ petitions are dismissed. No costs. Connected
miscellaneous petitions are also dismissed.
Svn
To
1.The Secretary,
Union of India,
Ministry of Shipping, Road Transport
and Highways, Department of Road
Transport and Highways, New Delhi.
2.The Competent Authority and
Special District Revenue Officer (L.A.),
National Highway Schemes,
Kancheepuram and Tiruvallur Districts,
R.D.O. Office, Kancheepuram.
3.The Project Director,
National Highways Authority of India,
SPIC House, No.88, Anna Salai,
Guindy, Chennai-600 032.
4.Hon’ble Minister Mr.T.R.Balu,
Ministry of Shipping,
Road Transport and Highways,
Department of Road Transport and
Highways, New Delhi.
5.The Central Public Information Officer,
National Highways Authority of India,
Central Information Commission,
Old JNU Campus, Block-IV,
5th Floor, New Delhi-110 067.