BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/11/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P(MD)No.4377 of 2008 and M.P(MD)Nos.1 to 3 of 2008 Shanmugha Arts, Science, Technology and Research Academy (known as Sastra University), having its main campus at Shanmuga Campus, Tirumalaisamudram, Thanjavur - 613 402. represented by its Registrar, N.Anantharaman ... Petitioner Vs - 1.Union of India, represented by its Secretary to Government, Ministry of Shipping, Road Transport and Highways, "Transport Bhavan", No.1, Parliament Street, New Delhi - 110 001. 2.The Competent Authority and Special District Revenue Officer, (Land Acquisition - National Highways), Perambalur, Tirichirappalli, Pudukottai - Thanjavur Districts, Tiruchirappalli. 3.National Highways Authority of India, Project Implementation Unit, No.54, 1st Street, Natarajapuram North Colony, Medical College Road, Thanjavur - 613 004. represented by its Project Director. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records relating to the order issued by the second respondent dated 30.04.2008 in R.C.60/2007/Unit III/Thanjavur - Tiruchirappalli and quash the same. !For Petitioner ... Mr.G.Rajagopal, Senior Counsel for M/s.G.R.Associates. ^For Respondents... Mr.K.Ramakrishnan for R.1 Mrs.V.Chellammal, Special Govt. Pleader for R.2 Mr.A.Rajendran for R.3 Mr.G.R.Swaminathan for proposed respondent in M.P(MD)No.2 of 2008. * * * * * :ORDER
Animadverting upon the order passed by the second respondent dated
30.04.2008 in R.C.60/2007/Unit III/Thanjavur – Tiruchirappalli, this writ
petition is focused so as to get quashed the same, by issuing a Writ of
Certiorari.
2. The facts giving rise to the filing of this writ petition as stood
exposited from the affidavit accompanying the writ petition as well as from the
submissions made by the learned Senior Counsel for the petitioner, could
succinctly and precisely, tersely and briefly, be set out thus:
The third respondent intended to acquire the land for widening the
existing road connecting Trichy and Thanjavur and in that process, steps have
been taken. Wherefore the Central Government passed notification dated
17.12.2007 vide 3A(1) Notification published in GOI Gazette Special Publication
No.1550 S.O.No.2136 (E). Whereupon, the substance of the notification was
published in two local newspapers namely “Dhina Thanthi” and “The Hindu” dated
31.01.2008. Even before such paper publications, but after the Gazette
notification, the communication dated 10.01.2008 was sent by the third
respondent to the petitioner who submitted his objection on 21.01.2008. After
the publication in the newspapers cited supra, one other objection dated
19.02.2008 was submitted by the petitioner reiterating what was already put
forth before the third respondent. Whereupon, the second respondent, the
competent authority issued notice scheduling the date of enquiry as 13.03.2008
and on that date, the petitioner appeared along with his advocate. On the date
of hearing, a written submission in the form of supplication was also given by
the petitioner to the second respondent. Ultimately, the second respondent
served the copy of the impugned order dated 30.04.2008 on the petitioner,
thereupon only, the petitioner came to know that the objection filed by the
petitioner was communicated to the third respondent and obtained their remarks
and after referring to the objections of the petitioner as well as the remarks
thereon furnished by the third respondent, the second respondent passed the
impugned orders. However, the impugned order dated 30.04.2008 passed by the
second respondent is niggard and bereft of reasons for having rejected the
petitioner’s objections and for agreeing with the remarks furnished by the third
respondent. No copy of the remarks furnished by the third respondent as against
the objections filed by the petitioner, was served on the petitioner so as to
effectively put forth the case of the petitioner. As such, the principles of
natural justice have been violated in this regard. The second respondent
mechanically by simply narrating the objections filed by the petitioner and the
remarks furnished by the third respondent, agreed with the third respondent
without setting out reasons and hence, the impugned order passed by the second
respondent is liable to be set aside as it falls foul of the principles of
natural justice.
3. The plan prepared by the third respondent, a copy of it, which was
furnished to the petitioner, contains an artificial bend at the campus of the
petitioner and thereby, deprives the petitioner to run his institution. If the
road is laid as per the said plan, naturally the petitioner’s running of the
deemed University would be set at naught or it will be in doldrums; ultimately,
they would be put to irreparable loss. In the objections also, the petitioner
had set out as to how, if the proposed road was laid, it would cause noise
pollution and create various other difficulties in addition to resulting in
demolition of hospital building and other buildings of the University.
4. Per contra, the refutatory counter has been filed by the third
respondent denying and remonstrating, gainsaying and contradicting the
averments/allegations in the petition; the sum and substance, the pith and
marrow, the warp and woof of the same, could inter alia be set out thus:
The petitioner is having no right to invoke Article 226 of the
Constitution of India as per the decisions of the Honourable Apex Court. The
scope of the enquiry under Section 3-C of the National Highways Act is very
limited and no Court could go into the validity of any plan. On technical
aspects, the Court cannot interfere. Various buildings of other persons have
been demolished for the purpose of laying the road and only the petitioner is
objecting. The views obtained by the third respondent from the experts, are
found referred to in the impugned order which would speak by itself that the
plan is strictly in accordance with Indian Road Congress. If as suggested by
the petitioner, the alignment of the road is changed, it would be necessitate
other lands belonging to different persons may have to be acquired and various
buildings have to be demolished.
5. Per contra, if the existing plan is implemented in stricto sensu, cost
wise it would be lesser and furthermore, it would enable free flow of traffic
vehicular at 100 Km/hr which is the object of laying the said road. At the
most, if the said plan is implemented, the petitioner will be loosing only the
building where a small hospital is being run and their compound wall and not as
aired by the petitioner in the affidavit accompanying the writ petition. The
entire running of the deemed University would not be hampered. It would not
cause noise pollution also. Accordingly, he prayed for the dismissal of the
writ petition.
6. Heard both sides.
7. The points for consideration are:
(i) Whether the petitioner has justifiably invoked Article 226 of the
Constitution of India in the facts and circumstances of this case?
(ii)Whether the allegations/averments as found set out in the objections
filed before the second respondent are within the purview of enquiry under
Section 3 C of the The National Highways Act, 1956? and
(iii) Whether the principles of natural justice have been adhered to in
this case before passing the impugned order by the second respondent?
8. All the above three points are inter-linked and entwined, interwoven
and interconnected with one another and accordingly, all these points are taken
together for discussion.
Point Nos.(i) to (iii):
9. The learned Senior Counsel for the petitioner, placing reliance on a
plethora of precedents, would develop his arguments to the effect that when the
principles of natural justice are violated by the quasi-judicial authority, the
Court could always interfere and it would be preposterous on the part of the
respondents to contend that the Court cannot interfere whenever the provisions
of the National Highways Act, 1956, is being implemented.
10. Whereas the learned Counsel for the third respondent would cite
various other decisions in support his contention that on technical matters,
such as alignment of road, noise pollution etc., the Court cannot interfere and
it has no jurisdiction. Citing the decision of the Honourable Apex Court in
Competent Authority v. Barangore Jute Factory reported in (2005) 13 SCC 477, he
would develop his argument that virtually the pleas as the ones raised by the
petitioner are beyond the scope of enquiry and consideration under Section 3-C
of the National Highways Act.
11. The learned Counsel for the petitioner also would put forth a
factually based argument to the effect that the third respondent is intending to
widen the existing road which is already having such curve in that locality and
it is not a new curve which could be labelled as a new artificial and motivated
curve. If the suggestion of the petitioner is accepted, various other buildings
of the private persons would have to be demolished which would not be just and
proper.
12. It is just and necessary to consider the decisions cited on either
side in seriatim.
13. The learned Counsel for the third respondent cited the decision of the
Honourable Apex Court in Competent Authority v. Barangore Jute Factory reported
in (2005) 13 SCC 477. An excerpt from it, would run thus:
“8.The absence of a plan also renders the right to file objections under
Section 3-C(1), nugatory. In the absence of a plan, it is impossible to
ascertain or know which part of the acquired land was to be used and in what
manner. Without this knowledge no objections regarding use of land could be
filed. Since the objection regarding use of the land had been given up by the
writ petitioners, we need not go any further in this aspect. We would, however,
like to add that unlike Section 5-A of the Land Acquisition Act, 1894 which
confers a general right to object to acquisition of land under Section 4 of the
said Act, Section 3-C(1) of the National Highways Act gives a very limited right
to object. The objection can be only to the use of the land under acquisition
for purposes other than those under Section 3-A(1). The Act confers no right to
object to acquisition as such. This answers the argument advanced by the
learned counsel for NHAI that failure to file objections disentitles the writ
petitioners to object to the acquisition. The Act confers no general right to
object, therefore, failure to object becomes irrelevant. The learned counsel
relied on the judgment of this Court in Delhi Admn v, Gurdip Singh Urban. In
our view, this judgment has no application in the facts of the present case
where the right to object is a very limited right. The case cited is a case
under the Land Acquisition Act, 1894 which confers a general right to object to
acquisition of land under Section 5-A. Failure to exercise that right could be
said to be acquiescence. The National Highways Act confers no such right. Under
this Act there is no right to object to acquisition of land except on the
question of its user. Therefore, the present objection has to be decided
independently of the right to file objections. Dehors the right to file
objection, the validity of the notification has to be considered. Failure to
file objection to the notification under Section 3-C, therefore, cannot non-suit
the writ petitioners in this case.”
14. Placing reliance on the aforesaid excerpt, the main thrust of the
argument of the learned Counsel for the third respondent, would be that the
scope of enquiry under Section 3-C of the Act is only to the limited extent of
considering the objections if any which could be focussed to the effect that the
proposed use of the land is for a purpose, other than the ones which are
contemplated under Section 3-A(1) of the said Act. Here, the purpose is to lay
down the road which is covered under Section 3-A(1) of the said Act and in such
a case, the writ itself is a misconceived one.
15. Whereas by way of torpedoing and pulverizing the arguments of the
learned Counsel for the third respondent, the learned Senior Counsel for the
petitioner would submit that paragraph No.8 of the Honourable Apex Court’s
judgment should not be read in isolation and it should be read in conjunction
with the observations made in paragraph No.5 of it, which is also extracted as
under:
“… 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 prices 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 stature 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 law.”
16. The learned Senior Counsel for the petitioner would develop his
argument to the effect that no part of the enactment should be rendered nugatory
and otiose as exemplified in the Honourable Apex Court’s precedent cited supra.
According to him, Section 3-C of the Act would clearly and categorically
highlight and spotlight the fact that during enquiry contemplated therein, the
petitioner as the owner of the land can very well object to the use of the land
and that includes his right to object to the way in which the proposed road is
going to be laid through the petitioner’s land.
17. Trite, the proposition of law is that even obiter of the Honourable
Apex Court is binding on the High Court. Here, whatever stated by the
Honourable Apex Court at paragraph No.8 is only obiter, nonetheless, it is
binding on this Court. As correctly pointed out by the learned Senior Counsel
for the petitioner, the entire judgment has to be read and on being read, it is
pellucid and palpable that in paragraph No.5 of the said judgment, the
Honourable Apex Court held that no part of the enactment should be rendered
nugatory or otiose. Here, conducting an enquiry under Section 3-C of the Act
should not be an ’empty formality’ and that is what the Honourable Apex Court
highlighted in the said judgment. For the purpose of the disposal of this case,
there is no necessity to delve deep into the legal principles envisaged in
Section 3-C of the Act and ponder over the broad proposition, as to what is the
actual scope and parameter of Section 3-C of the National Highways Act; suffice,
to consider whether the plea of artificial curve in the said plan as objected to
by the petitioner, could be gone into or not during enquiry under Section 3-C of
the Act. I am of the considered opinion that such objection could rightly be
taken as the one within the ambit of the enquiry under Section 3-C of the Act as
otherwise, there would be no purpose in conducting enquiry at all. Here, the
petitioner is not challenging as to whether the road should be laid or not, but
the challenge is limited to the said artificial curve and the consequential
proposal to demolish the buildings of the petitioner.
18. In the petitioner’s objection, they have stated that they are having
no objection for laying the road connecting Trichy and Thanjavur, but their main
objection is relating to the artificial curve that is found crept in the road
plan. Even though in very many words, they have not expatiated and delineated
as to the motive behind such curve, the learned Senior Counsel for the
petitioner would submit that such an artificial curve is borne out of some
ulterior motive only.
19. Be that as it may, now then, a mere perusal of the said plan would
clearly indicate and evince that in that proposed plan, there is a curve or bend
in the road at the property of the petitioner.
20. It is therefore obvious and axiomatic that the petitioner has got the
right to raise objections concerning the same which the District Revenue Officer
should have concentrated and given his objective reasons on that. The
ratiocination of the second respondent in respect of his dismissive attitude
towards the pleas of the petitioner is missing in the impugned order. At this
context, the non-furnishing of the copy of the remarks of the third respondent
to the petitioner’s objections before the passing of the impugned order gains
prominence and significance.
21. At this juncture, the learned Counsel for the third respondent would
argue that absolutely there is nothing in Section 3-C of the said Act on par
with Section 5-A of the Land Acquisition Act, that a copy of the remarks to the
objections filed by the petitioner, should be furnished to the petitioner.
22. I am at a loss to understand as to how such an argument could be
countenanced. No doubt, ex facie and prima facie, there is no version found
incorporated in Section 3-C of the National Highways Act that a copy of the
remarks furnished by the third respondent should be given to the petitioner.
Nonetheless, in this case, the second respondent did choose to furnish the
objection to the third respondent whereupon, the third respondent also furnished
their remarks with the help of an expert and it is a fait accompli, but the copy
of the remarks of the expert which the second respondent relied on in the
impugned order was not furnished to the petitioner so as to enable them to
challenge the remarks.
23. The learned Senior Counsel for the petitioner would rely on the Full
Bench decision of this Court in Pari, R. v. The Special Tahsildar, Adi-Dravidar
Welfare, Devakkottai reported in 2006 (4) CTC 609. An excerpt from it, would
run thus:
“18.Under the State Act, the statutory provisions in the shape of Section
4 and Rule 3 are silent regarding holding of any enquiry (either by the District
Collector or by the authorised officer). The statutory provisions merely
contemplate issuance of notice to show cause and the Rules only contemplate
issuance of notice in Form I. However, such Form I specifically contemplates
“the statement of objections, if any” received within the time stipulated will
be enquired into “at a particular place” on ” a particular date” at the office
of “a particular office”, to be specified in such notice. The Form-I further
contemplates that the person interested is at liberty to appear and to adduce
any oral and documentary evidence in support of his objection. It is no doubt
true that such a notice in the statutorily prescribed form can be considered as
part of the Rules. However, the procedure to be followed by the authorised
officer is not specifically laid down, save and except as contained in Section
4(3)(b). This clause only contemplates that the officer authorised shall make
report to the District Collector containing his recommendations on the cause so
shown for the decision of the District Collector. It further contemplates that
the District Collector may pass such orders as he may deem fit after considering
such report. The provisions contained in the Act, the Rules or in Form-I do not
specifically envisage as to which record will be placed before the District
Collector. Similarly the provisions are silent as to whether the copy of report
of the authorised officer is required to be furnished to the objectors. The
principles of natural justice regarding furnishing of copy of report can be
considered as super added to such provisions. It cannot be said that merely
because the Form-I does not specifically prescribe any further opportunity, such
opportunity is impliedly prescribed. Since the Central Act had specifically and
in detail made certain provisions, it is reasonable to conclude that the Central
Act has exhaustively laid down the manner in which and the extent of principles
of natural justice is required to be complied with and impliedly excluded any
other extension of principles of natural justice; whereas under the State Act
the statutory provisions and the Rules being silent, the scope and extent of
natural justice to be followed need not be confined to whatever has been
described in the Form-I.
39. It was submitted on behalf of the State Government that since specific
provisions had been in Section 4 and Rule 3 and particularly in Form I, it would
not be appropriate to incorporate any other principle of natural justice.
A similar contention had been repelled by the Supreme Court in the
decisions in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi,
AIR 1978 SC 851 and S.L.Kapoor v. Jagmohan and others, AIR 1981 SC 136. In the
later decision, relying upon the decision reported in Mohinder Singh Gill V. The
Chief Election Commissioner, New Delhi, AIR 1978 SC 851, it was observed:
“10. … We are unable to agree with the submission of the learned
Attorney General. It is not always a necessary inference that if opportunity is
expressly provided in one provision and not so provided in another, opportunity
is to be considered as excluded from that other provision. It may be a weighty
consideration to be taken into account but the weightier consideration is
whether the administrative action entails civil consequences. This was also the
view taken in Mohinder Singh Gill V. The Chief Election Commissioner, New Delhi,
AIR 1978 SC 851, where it was observed (at p.316):
“We have been told that wherever the Parliament has intended a hearing it
has said so in the Act and the rules and inferentially where it has not
specified it is otiose. There is no such sequitur. The silence of a statute
has no exclusionary effect except where it flows from necessary implication.
Article 324 vests a wide power and where some direct consequence on candidates
emanates from its exercise we must read this functional obligation.”
24. Over and above that, he would also cite one other decision in
Sundaravalli Ammal v. The Government of Tamil Nadu reported in 2008 (2) CTC 241,
which would reiterate the views expressed in the earlier Full Bench decision
cited supra. An excerpt from it, would run thus:
“11)We hold that having regard to the dictum of the Full Bench decision
reported in R.Pari -vs-Special Tahsildar, Adi Dravidar Welfare, Pasumpon
Muthramalinga Thevar District and another, 2006 (4) CTC 609: 2007 (2) MLJ 706,
the Division Bench ought to have applied the ratio laid down in the said
decision and disposed of the matter. If at all the Division Bench felt any
doubt as to the correctness of the said Full Bench decision, in all fairness
the Division Bench could have directed the registry to place the matter before
the learned Chief Justice for his consideration as to whether a further
reference is called for for referring the issue to a Larger Bench.
12)Since we have found as stated in paragraph-8 of this Order that the
conclusion of the Full Bench decision reported in R.Pari -vs-Special Tahsildar,
Adi Dravidar Welfare, Pasumpon Muthramalinga Thevar District and another, 2006
(4) CTC 609: 2007 (2) MLJ 706, has laid down the law appropriately and that
there is no flaw in the said decision, we hold that the order of reference to a
Larger Bench is uncalled for. The said Full Bench decision is therefore binding
on the Division Bench. We accordingly, direct the registry to place the matter
before the Division Bench to decide the Appeals on merits.”
25. It is therefore clear from the aforesaid two Full Bench decisions that
even though in the statute, there is no express provision for furnishing copy of
the said remarks referred to above, yet the principles of natural justice
warrant such furnishing of the copy of the remarks to the petitioner so as to
enable them to effectively put forth their case before the second respondent.
26. At this juncture, the learned Senior Counsel for the petitioner cited
paragraph No.37 of the aforesaid decision in Pari, R. v. The Special Tahsildar,
Adi-Dravidar Welfare, Devakkottai reported in 2006 (4) CTC 609 and it is
extracted hereunder for ready reference:
“37)The desirability of furnishing a copy of the report to enable the land
owner to make a further representation to the District Collector does not mean
that in every case, where such report has not been furnished, the ultimate order
passed by the District Collector deciding to acquire the land is automatically
vitiated. The scope for judicial interference in the matter relating to
acquisition of land obviously being very limited, the Court in each case is
required to find out whether non-furnishing of the report in any way has
prejudiced the person concerned. The object of furnishing the report and
affording further opportunity to the land owner to make a further representation
is obviously to pinpoint any deficiency in the report of the authorized offer.
If any particular aspect has been highlighted by the land owner and has not been
considered by the authorised officer, the land owner would get a further
opportunity to highlight such aspect before the District Collector. In other
words, if the authorised officer has considered the relevant because a copy of
such report is not furnished and no further opportunity is given to the land
owner, may not be a ground to quash the land acquisition proceedings. On the
other hand, if important aspects, which have been highlighted by the land owner,
have been ignored by the authorised officer, it may be reasonable to infer non-
furnishing of such report and non- offering of opportunity to make further
representation might have vitiated the ultimate decision of the District
Collector. These are matters to be considered on the basis of the facts and
circumstances in each acquisition and it should not be construed that as a
matter of law in every case where copy of the report has not been furnished and
opportunity of making further representation had been denied, it is sufficient
to quash such acquisition. Ultimately the Court has to judge the prejudice
caused to such person by keeping in view the facts and circumstances in
particular case.”
27. Placing reliance on the aforesaid excerpt, the learned Senior Counsel
for the petitioner would develop his argument that the Court while scrutinizing
the records as well as the validity of the impugned order, could very well see
as to whether in a particular case involved such non-furnishing of the report is
fatal or not and it differs from case to case. However, according to him, so
far this case is concerned, such non-furnishing of such copy is fatal because
here the objection is relating to an artificial curve as well as the noise
pollution etc. and the expert allegedly gave his opinion and it was accepted by
the second respondent, but the copy of it was not given to the petitioner. I
could see considerable force in the submission of the learned Senior Counsel for
the petitioner that this is a case which warranted the furnishing of the said
report to the petitioner so as to enable him to meet the comments and remarks in
the report passed as against the objections of the petitioner.
28. The learned Senior Counsel for the petitioner also placed reliance on
decision of this Court in AL.Ranathan Amutha & Co, Indian Oil Dealer,
Tiruchirapalli -vs- Government of India, rep.by its Secretary Ministry of Road
Transport and Highways, New Delhi and others reported in 2008 5 MLJ 888. An
excerpt from it, would run thus:
“20)It is trite that any authority, particularly quasi-judicial authority,
who exercises his powers is required to spell out the reasons for his conclusion
irrespective of the fact whether the conclusion is subject to appeal, revision
or judicial review. The extent and nature of reasons would depend on particular
facts and circumstances and those reasons must be clear and explicit so as to
indicate that the authority concerned has given due consideration to the points
in controversy. More so, the need for recording reasons is greater in a case
where his order is based by an order of other authority. The requirement of
consideration of objection mandated in the Act is not an empty formality and as
such, the second respondent ought not to have rejected the petitioner’s
objections simply based on the technical opinion given by the Project Director.
To put it otherwise, the second respondent should have restrained himself from
considering the petitioner’s objections simply for the sake of doing. This is
because it is not sufficient if the rule of law is followed in letter and it
should be followed in spirit as well in a constructive manner. In addition to
relying on the Project Director’s technical opinion, the second respondent
should have also applied his mind and dealt with the petitioner’s objections one
by one and should have arrived at his conclusion with due reasoning in a
speaking manner. It has been held in a catena of decisions of the Supreme Court
and this Court that spelling out of reasons in an administrative decision is a
rule of natural justice. It is a well settled principle that reasoning is the
heartbeat of every conclusion becomes not only meaningless but also lifeless.
The object behind spelling out reasons is that the affected party should know as
to why the decision has gone against him. One of the fundamental principles of
natural justice is spelling out reasons for the order made even in rejecting the
objections. At this juncture, it would be very much appropriate to state that a
very recent judgment of the Supreme Court in the case of Director, Horticulture,
Punjab and Others -vs- Jagjivan Parshad 2008 AIR SCW 2858, adds strength to this
settled proposition of law and the relevant portions of which are extracted as
under:
“Reasons introduce clarity in an order. On plainset consideration of
justice, the High Court ought to have set forth its reasons, howsoever brief, in
its order indicative of an application of its minds, all the more when its order
is amenable to further avenue of challenge. The absence of reasons has
rendered the High Court; judgment not sustainable.
Reasons substitute subjectivity by objectivity. The emphasis on recording
reasons is that if the decision reveals the “inscrutable face of the sphinx”, it
can, by its silence, render it virtually impossible for the Courts to perform
their appellate function or exercise the power of judicial review in adjudging
the validity of the decision. Right to reason is an indispensable part of a
sound judicial system. Another rationale is that the affected party can know
why the decision has gone against him. One of the salutary requirements of
natural justice is spelling out reasons for the order made, in other words, a
speaking-out. The “inscrutable face of the sphinx” is ordinarily incongruous
with a judicial or quasi-judicial performance.”
29. The above excerpt would clearly highlight and spotlight that when an
authority under Section 3-C of the Act, wants to rely upon the view expressed by
the third respondent, then there should be reason set out in support of the
same. Here, the perusal of the impugned order does not reveal or demonstrate
that for what reasons, the views of the expert was accepted and the objections
of the petitioner was rejected.
30. At this juncture, it is just and necessary to extract certain excerpts
from the said impugned order:
“Objections:
1.The Objector stated that sufficient lands are available on the opposite
side adjoining the existing Highways. It is also stated that when free lands
without any building or construction are available for widening, there is
absolutely no need for acquiring the land belonging to the University.
2.That he stated that from the plan it is very apparent that instead of
following a straight path, the road takes a bend near the University and again
straightens after crossing the University. It is also stated that there is a
basic defect in the alignment of the highway and already representations have
been given with proof regarding the same.
3.That he stated that the reason for bending the road near the University
so as to enter into the University area is not clear at all. It is also stated
that the proposed design will seriously affect the functioning of the
University. Further it is stated that in these circumstances, the land
belonging to the University cannot be acquired.
4.That he stated that the proposed alignment as per the drawing obtained
from the National Highways Authority clearly evidences the curve towards the
University premises on the Vallam side at chainages of 98.8 and 100.2 on the
Trichy side, leaving a vast space on the other side of the proposed road.
5.That he stated that SASTRA is a University declared as a Deemed
University by the Central Government under Section 3 of the University Grants
Commission Act,1956. He also said that the Central Government has notified
SASTRA as Centre for excellence and the University has been conducting research
work in the joint venture of the Central Government, TIFAC-CORE in Advanced
Computing and Information Processing Centre for Nanotechnology & Advanced
Biomaterials, Centre for Advanced in Indian System of Medicine (CARISM),
National Facilities in Engineering and Technology with Industrial Collaboration
(NAFETIC) etc.”
31. The aforesaid excerpts in the impugned order summarised the objections
relating to the artificial curve and other objections raised by the petitioner
in the plan, for which the second respondent in page No.5 of its report would
observe thus:
“1)To the objections No.1 to 5:
The Project Director has stated that the present design has optimum
utilization of existing roadway with minimum load acquisition and the Project
Highway, is designed for 100 km/hr and the design in carried out as per IRC
specifications. He further stated that the proposed alignment is the most
feasible alignment in terms of financial and geometric considerations and
proposing a totally new alignment alternative is suggested will be costly and
will result in abandoning the existing roadway. This new alignment will also
result in additional land acquisition and additional cost implication to the
Government of India.”
32. As such, the above excerpt is the summary of the remarks filed on the
side of the third respondent, but the copy of the report was not given to the
petitioner. Ultimately, in the impugned order at page No.6, the second
respondent observed thus:
“1)With regard to the suggestion made by the petitioner for alternative
alignment, the Project Director, NAHI, Tiruchy has stated that the present
design has optimum utilization existing Roadways with minimum land acquisition.
The Project Highway is designed for 100 K.m/Hr and the design is carried out as
per IRC specifications. The alignment will not cause Fatal accidents. The
proposed alignment is the most feasible alignment in terms of financial and
geometrical consideration. Proposing a totally new alignment will be costly and
will result in abandoning of the existing Roadway. The new alignment will also
result in additional land acquisition and additional cost implication to the
Government of India.”
33. It is therefore clear from the aforesaid excerpts that the authority
simply accepted the view of the third respondent and rejected the objections of
the petitioner without citing any reason. At page No.6, it is simply found
stated as follows:
“I agree with the remarks of the Project Director, NHAI, Tanjore. Hence,
the objection made by the petitioner is negatived and also rejected.”
34. Put simply, without independently applying the mind, the second
respondent rejected the objections of the petitioner. As such, my above
discussion would exemplify and demonstrate that the second respondent without
adhering to the principles of natural justice, passed the impugned order which
warrants quashment on that ground itself.
35. With a view to highlight that non-furnishing of the copy of the
remarks furnished by the third respondent is material, I would like to observe
further thus:
The learned Senior Counsel for the petitioner would place reliance on the
fact that as per the proposed plan, the compound wall of the petitioner’s
premises would be the mid-line of the proposed road, whereas now the existing
road is far away from the compound wall and that itself is the indicative of the
fact that there is an artificial curve. While exercising the jurisdiction under
Article 226 of the Constitution of India, when such a glaring defect in the plan
is highlighted before this Court, this Court could visualize that the grievance
of the petitioner that there is an artificial curve, is not one fraught with
gobble de gook, gibberish, recondite, abstruse uncanny statements. The
contention of the petitioner that unless there occurs such an artificial curve
in the plan, the existing compound wall cannot constitute the middle line of the
proposed road., deserves deep scrutiny by the second respondent. However, I do
not finally decide that what the petitioner contended, is correct. The second
respondent should have necessarily applied his mind on that aspect and given a
finding either way. Had the proposition as put forth by the learned Counsel for
the petitioner was not at all factually correct, then that would have been
referred to in the impugned order itself by citing factual details. As pointed
out by the learned Counsel for the third respondent, if the proposal of the
petitioner is accepted, it would affect others obviously, than those facts
should have been detailed in the impugned order itself. De hors that even in
the counter, I could not see no such details about other persons and the owners
of the buildings who would be allegedly affected if the suggestion of the
petitioner is accepted. As such, without deciding factually, I would like to
observe that the impugned order is niggard and bereft of details and
accordingly, it falls foul of the principles of natural justice warranting
quashment as it was passed by the second respondent without au fait with law and
au curante with fact.
36.The learned Counsel for the third respondent also cited various
decisions as under:
(i) In Ramniklal N.Bhutta and another -vs- State of Maharashtra and others
reported in (1997) 1 SCC 134. An excerpt from it, would run thus:
“10.Whatever may have been the practices in the past, a time has come
where the courts should keep the larger public interest in mind while exercising
their power of granting stay/injunction. The power under Article 226 is
discretionary. It will be exercised only in furtherance of interests of justice
and not merely on the making out of a legal point. And in the matter of land
acquisition for public purposes, the interests of justice and the public
interest coalesce. They are very often one and the same. Even in a civil suit,
granting of injunction or other similar orders, more particularly of an
interlocutory nature, is equally discretionary. The courts have to weight the
public interest vis-a-vis the private interest while exercising the power under
Article 226-indeed any of their discretionary powers.
37. There could be no quarrel over the proposition of law as found
enunciated in the aforesaid decision as it is clear that the current trend of
thinking is that for the greater good of public, there should be sacrifice by
the individual. My mind is redolent and reminiscent of the famous maxim
“Privatorum conventio juri publico non derogat.”
38. But, here, the petitioner is in no way objecting to the laying of the
road, but what his objection is that there is an artificial curve in the
proposed plan which is actuated by ulterior motive and not by actual
requirements by any standard including Indian Road Congress.
39. An excerpt from the decision in Krishnaveni and others -vs- Union of
India rep.by the Secretary to Government, Ministry of Road Transport & Highways,
New Delhi and others reported in 2007 6 MLJ 935, would run thus:
“23.The petitioners sought to challenge the veracity and correctness of
the detailed finalized plan of National Highways Authority of India, in my view,
the said submission is devoid of merits. The findings of expert bodies in
technical and scientific matters would not ordinarily be interfered with by this
Court in exercise of their power under Article 226 of the Constitution, followed
Akhil Bharat Gaseva Sangh -vs- State of Andhra Pradesh (2006) 4 SCC 162 wherein
in para-59, it was held thus:
“59. The appellant sought to challenge the veracity and correctness of the
figures given in the report of the Central Government as well as in the
quinquennial census. In our view, this submission is devoid of merit. It is
now well settled by various decisions of this Court that the findings of expert
bodies in technical and scientific matters would not ordinarily be interfered
with by the courts in exercise of their power under Article 226 of the
Constitution or by this Court under Article 136 or 32 of the Constitution..”
40. Placing reliance on the aforesaid decision, the learned Counsel for
the third respondent would develop his argument that the findings of the expert
bodies in technical and scientific matters would not ordinarily be interfered
with by this Court in exercise of their power under Article 226 of the
Constitution of India. There could be no second opinion over the aforesaid
decision. But, my above discussion supra would demonstrate and indicate as to
how in this case, the details are missing and there is no objectivity in
addition to the order having been passed without adhering to the principles of
natural justice.
41.The learned Counsel for the third respondent also cited the decision in
M.Haridass and others -vs- State of Tamil Nadu rep.by its Secretary to
Government, Industries Department, Chennai and others reported in 2008 5 MLJ
1174. An excerpt from it, would run thus:
“59.Therefore, it is made clear that a public notice in writing with the
signature of the officer concerned be made widely known in the locality by
affixing in the conspicuous public places or publishing the same by beat of drum
or by advertisement in a local newspaper, etc.,. It is significant to note that
as far as issuance of show cause notice to the owner or person interested in the
opinion of the Government, neither the Act nor the Rules prescribe any method to
be followed, which means that if such show cause notice is sent to the owner or
persons interested in any acceptable form, the same is certainly a proper method
of service. Even in this way service of show cause notice and public notice,
under Tamil Nadu Act 10 of 1999 is totally different from Section 4(1) of the
Central Act 1 of 1894 which contemplates the notification to be published in the
Official Gazette stating that it appears to the appropriate Government that such
land in the locality is needed for public purpose in addition to that, it is the
duty of the Government to publish the same in two daily newspapers circulating
in that locality of which at least one should be in regional language. In
addition to that, it is the duty of the District Collector to cause public
notice of substance of such notification at convenient places in the said
locality. Such stringent provisions is not available either under Section 3(2)
of Tamil Nadu Act 10 of 1999 or under Rules 3 and 4 of the Rules framed
thereunder.
60.The term “hearing” as contemplated under Section 3(3) of the Act cannot
be equated to the term “hearing of objections” under Section 5-A of the Central
Act 1 of 1894. Section 5-A(2) states as follows:
In the absence of any such stringent provision as it is seen in the
Central Act 1 of 1894 especially under Section 5(A)(2), in the Tamil Nadu Act
10 of 1999, there is no difficulty in coming to the conclusion that the
intention of the law makers in respect of Tamil Nadu Act 10 of 1999 while taking
into consideration the basis object of enacting such law, is not to have an
enquiry of the sort provided for under the Central Act 1 of 1894, but passing
orders after hearing and considering the objections.”
42. Placing reliance on the aforesaid decision, he would submit that the
petitioner cannot equate the enquiry under Section 5-A of the Land Acquisition
Act with that of the one under Section 3-C of the National Highways Act. In my
considered opinion, there is much of a muchness which could be seen in Section
5-A of the Land Acquisition Act as well as in Section 3-C of the National
Highways Act; however, verbatim both are not one and the same.
43.So far the adherence to the principles of natural justice, there is no
question of arguing that two different types of principles of natural justice
are found embedded under Section 5-A of the Land Acquisition Act vis-a-vis
Section 3-C of the National Highways Act.
44. The learned Advocate for the third respondent as well as the learned
Advocate for the proposed fourth respondent (in M.P(MD)No.2 of 2008), would in
unison put forth the plea to the effect that quite contrary to the time limit of
21 days contemplated under section 3-C of the Act, the petitioner filed the
objections belatedly. According to them, the Central Government Gazette was
dated 17.12.2007; whereas the objection was filed only on 21.01.2008, obviously
after 21 days. By way of torpedoing the arguments as put forth by the learned
Advocates for the third respondent and the proposed fourth respondent, the
learned Senior Counsel for the petitioner would invite the attention of this
Court to Section 3-A as well as Section 3-C of the Act and develop his argument
that mere notification in the Gazette would not meet the requirements of Section
3-A of the Act as Section 3-A(3) of the Act would contemplate the publication of
the substance of the notification in two local newspapers as a condition
precedent for coming into force of the notification. As such, from the date of
publication of the substance of the notification in the newspapers, the period
of 21 days should be calculated and if calculated, in this case, the objection
filed by the petitioner was in time. He would also correctly draw the attention
of this Court that in “The Hindu” Newspaper, the substance of the notification
dated 17.12.2007 was published on 31.01.2008 and even before such publication in
the newspapers, on 21.01.2008 itself, in response to the communication sent to
the petitioner by the third respondent, objection was filed by the petitioner
and after such publication in the newspapers on 19.02.2008, another objection
reiterating the earlier objection, was filed by the petitioner. Hence, by no
stretch of imagination, it could be stated that the objection filed was not
within time. However, the learned Advocates for the third respondent as well as
the proposed fourth respondent, would try to interpret Section 3-C of the Act to
the effect that the period of 21 days should be calculated from the date of
notification in the Gazette and not the date of publication of the substance of
the notification in the newspapers. In fact, Mr.G.R.Swaminathan, learned Counsel
for the proposed fourth respondent, would place reliance on the following words
” … from the date of publication of the notification under sub-section (1) of
Section 3-A, …” in Section 3-C of the Act and develop his argument that in
Section 3-C of the Act, there is no reference to Section 3-A(3). In my opinion,
such an interpretation cannot be countenanced for the reason that the words
“notification under sub-section (1) of Section 3-A, …” is by way of describing
the notification and not the term ‘publication’. The word ‘publication’ refers
to the publication under Section 3-A(3) of the Act as correctly pointed out by
the learned Counsel for the petitioner. As such, in this view of the matter,
the contentions raised on the side of the third respondent cannot be
countenanced as correct. At this context, the maxim “Ut res magis valeat quam
pereat”, could be recollected. In regard to this maxim, the fruitful discussion
could be seen in the famous treatise “Maxwell on The Interpretation of Statutes”
(Twelfth Edition by P.St.J.Langan at page No.45) as under:
“If the choice is between two interpretations, the narrower of which would
fail to achieve the manifest purpose of the legislation, we should avoid a
construction which would reduce the legislation to futility and should rather
accept the bolder construction based on the view that Parliament would legislate
only for the purpose of bringing about an effective result. “Where alternative
constructions are equally open, that alternative is to be chosen which will be
consistent with the smooth working of the system which the statute purports to
be regulating; and that alternative is to be rejected which will introduce
uncertainty, friction or confusion into the working of the system.”
In accordance with these principles, the court should avoid
interpretations which would leave any part of the provision to be interpreted
without effect; will not narrow enactments designed to prevent tax evasion; may
sometimes find it necessary to depart from the principle that mens rea is an
essential ingredient of criminal offences; and may give a wide sense to words in
a penal statute.”
Over and above that, the principle of bonam partem also could be cited in
support of the interpretation referred to by me supra.
45.The learned Counsel for the third respondent would cite the decision
in Dr.S.Ajay Venkatesh -vs- Union of India rep.by its Secretary to Government,
Ministry of Shipping Road Transport and Highways, New Delhi-1 and others
reported in 2007 (3) CTC 431. An excerpt from it, would run thus:
“7)Therefore there is no scope for the Competent Authority under the
National Highways Act, to act otherwise than in accordance with the provisions
of the Act. If a Statutory Authority is obliged to perform a function in a
particular manner by the Statute, he shall perform the same only in accordance
with the Statute and not otherwise. Hence, there cannot be a direction to the
respondents to provide lands to the petitioner in lieu of compensation, since
there is no provision in the Act for the respondents to do so. …
10.Therefore, the question as to whether there are any standard norms and
whether such standard norms are actually exceeded, is not a subject matter for
judicial review. The acquisition of a land for National Highways can be
objected to only on certain well established principles. No standard norms are
prescribed either by the Act or by any Executive Instructions issued in
pursuance of the provisions of the Act. Therefore the standard norms, even if
there are any, cannot be enforced through a Court of law, as they confer no
right upon the individual whose lands are sought to be acquired.”
46.Absolutely, there could be no difference of opinion over this decision
also. In fact, as per Section 3-C of the Act, the second respondent was
expected to adhere to the principles of natural justice in stricto sensu for the
reasons already cited supra, but he failed to so.
47.In view of the aforesaid reasons, Point No.(i) is decided to the effect
that this Court has got jurisdiction in the facts and circumstances of the case
to entertain the writ petition under Article 226 of the Constitution of India
and point Nos.(ii) and (iii) are decided to the effect that the principles of
natural justice have been violated in passing the impugned order by the second
respondent, which warrants interference.
48.In the result, while allowing the writ petition, I would like to pass
the following direction:
On receipt of a copy of this order, the second respondent shall do well to
see that he is furnishing to the petitioner a copy of the remarks/report
furnished by the third respondent as against the objections filed by the
petitioner, within a period of one week, whereupon, within a week thereof, the
objections could be filed by the petitioner before the second respondent and
thereupon, the second respondent within a period of fifteen days shall pass
orders after giving due opportunity of being heard to the petitioner and the
third respondent. The petitioner shall co-operate with the second respondent in
complying with this order in letter and spirit. Consequently, the connected
Miscellaneous Petitions are also closed. No costs.
rsb/gsr
TO
1.The Secretary to Government,
Ministry of Shipping, Road Transport and
Highways,
“Transport Bhavan”,
No.1, Parliament Street,
New Delhi – 110 001.
2.The Competent Authority and
Special District Revenue Officer,
(Land Acquisition – National Highways),
Perambalur, Tirichirappalli,
Pudukottai – Thanjavur Districts,
Tiruchirappalli.
3.The Project Director,
National Highways Authority of India,
Project Implementation Unit,
No.54, 1st Street,
Natarajapuram North Colony,
Medical College Road,
Thanjavur – 613 004.