@JUDGMENTTAG-ORDER
P.S. Narayana, J.
1.This Court ordered Notice before admission on 19.7.2007 and a counter-affidavit was filed.
This Court issued rule nisi on 11-9-2007.
2. The writ petition is filed for a writ of mandamus or any other appropriate writ, order or direction declaring the Notification SO. No. 1489(E)
dated 17.10.2005 and the consequential Notification SO. No. 1732(E) dated 9.10.2006 issued by the 1st respondent as illegal, arbitrary and
violative of Article 300-A of the Constitution of India and consequently to set aside the same and to pass such other suitable orders.
3. The petitioners made several averments in the affidavit filed in support of the writ petition. A counter-affidavit was filed by the 2nd respondent.
4. Sri Noushad Ali, the learned Counsel representing the writ petitioners had taken this Court through the respective pleadings of the parties and
also the specific rounds raised attacking the impugned notification and the consequential notification as well and would maintain that the impugned
notification is vague and no opportunity had been given to the petitioners to file their objections to the proposed acquisition of their lands. The
learned Counsel also would maintain that the impugned notification merely mentions the survey numbers and the extents of the lands proposed to
be acquired and the notification also merely mentions the type of land whether private or Government and the details which are vital for determining
the compensation had not been disclosed. The learned Counsel also pointed out that the Notification SO. No.l732/(E) dated 9.10.2006 issued u/s
3D of The National Highways Act, 1956, hereinafter in short referred to as ""Act"" for the purpose of convenience, is not sustainable in Law as the
same is continuation of the Notification No. SO. 1489(E) dated 17.10.2005 issued u/s 3A of the said Act. The learned Counsel also pointed out
that new entries had been brought with the names of the land owners, interested persons and the plot numbers and these new entries suffer from
several material defects. The Counsel also would maintain that the names of the petitioners 3 and 4 were not indicated at all in both the
notifications. In the case of the 5th petitioner her name was not notified in the notification dated 9.10.2006, but in stead the names of seven
unconcerned persons had been notified. Further, the learned Counsel pointed out that there is no necessity of acquiring this land at all since it is
faraway from the main road. The learned Counsel had explained several factual details in this regard. The learned Counsel also would submit that
when the notification itself is invalid, the mere passing of the award would not alter the situation and when once this Court is satisfied that the
notification is liable to be quashed, automatically the award also is liable to be quashed. The learned Counsel however would submit that if the
respondents are otherwise interested, in the event of this Court coming to the conclusion that no useful purpose would be served by acquiring the
impugned notification at this stage, let the writ petitioners be properly compensated taking the relevant date to determine the compensation as the
date when the possession of the land was taken by the respondents from the writ petitioners and let the claim of interest on amount of
compensation so determined be decided in accordance with Law by the appropriate authority. The Counsel also placed strong reliance on
Competent Authority v. Bangalore Jute Factory and Ors. (2006) CLT 108 (SC).
5. The learned Government Pleader for Revenue made certain submissions virtually adopting the stand taken by the 2nd respondent in the counter-
affidavit.
6. Sri S.S. Varma, the learned Counsel representing the 2nd respondent had pointed out to the relevant portion of the records produced before
this Court and had taken this Court through the different provisions of the Act and would maintain that these are notifications concerned with public
interest and because of the interim order made by this Court, the work is stalled. The learned Counsel also would submit that when once the award
is made, the question of challenging the notification would not arise and the same is impermissible. Even if the petitioners are entitled to higher
compensation, if any, the remedy is elsewhere and the petitioners may have to follow the procedure as specified under the provisions of the Act
and hence the reliefs prayed for in this writ petition cannot be granted. The Counsel also relied upon certain decisions.
7. It is averred in the affidavit filed in support of the writ petition that the 1st petitioner is the owner of land admeasuring 133.33 Sq. yards in Sy.
No. 411/1 and Sy. No.411/3 of Kallur Village and Mandal, Kurnool District. The said land is plot No. 49 as per the layout No. 223/72 approved
by the Kallur Gram Panchayat. The 2nd petitioner is the owner of land of an extent of 1379.07 Sq. yards in Sy.Nos. 411/1 and 411/3 of Kallur
Village and Mandal, Kurnool District and the said land is Plot Nos. 142, 143, 47, 48 and half in 49 as per Layout No. 223/72 approved by the
Kallur Gram Panchayat. The 3rd petitioner is the owner of land to an extent of Ac.0-4 cents in Sy. No. 328/2A of Kallur Village and Mandal,
Kurnool District. The said land is Plot No. 101 as per the approved layout L.P. No. 331/78 of the Director of Town Planning. The area is known
as Vanijya Nagar. The 4th petitioner is the owner of land to an extent of 100 Sq. yards in Sy. No. 328/2A of Kallur Village and Mandal, Kurnool
District. The said land is half of Plot No. 100 as per the approved layout L.P. No. 331/78 of Director of Town Planning. The area is known as
Vanijya Nagar. The 5th petitioner is the owner of land to an extent of 613.88 Sq. yards in Sy. No.430/C2, part of Kallur Village and Mandal,
Kurnool District. The said land is divided into plots bearing Nos. 3, 4, 13 and 14 as per revised L.P. No.l 18/87 approved by the Director of
Town Planning. It is further stated that the 1st respondent in order to acquire some land for widening N.H. No. 7 on the stretch of land from K.M.
203.002 to K.M.293.000 (Hyderabad-Bangalore Sec.) in Kurnool District appears to have issued a Notification SO. No. 1489(E) dated
17.10.2005 u/s 3A(1) of the National Highways Act, 1956. Under the said notification, the 1st respondent appears to have invited objections
from the persons interested in the land. The 2nd respondent had been designated as the Competent Authority for the said purpose. It is further
stated that in the aforesaid notification no details were given with reference to the owners/possessors of the lands whose lands were proposed to
be affected. Vague particulars were given indicating only survey numbers, type of land such as private or Government and the area proposed to be
covered. The area proposed to be covered in each survey number ranges from Ac.0.01 to Ac.8.51 cents. Inasmuch as the aforesaid notification
did not disclose the names of the persons who were likely to be affected and inasmuch as the notification was not published in prominent
vernacular local newspapers, the petitioners could not file their objections. The 1st respondent ultimately issued a Notification SO. No. 1732(E)
dated 9.10.2006 u/s 3D(1) and Section 3D(2) of the Act. Subsequently the 2nd respondent issued a Notification No. 2301/02/2006/PIV-ATP
dated 24.11.2006 published in Newspaper Vaartha dated 1.12.2006 calling upon the interested persons to appear before him on 5.12.2006
along with the documents to support their ownership. It is also further stated that the draft notification dated 17.10.2005 issued u/s 3A(1) of Act
did not contain details regarding the owners or the persons whose lands were proposed to be acquired on account of which the petitioners had no
knowledge that their lands would be acquired. Even otherwise, as per the said notification the land in Sy. No.411/lB and 411/3A was proposed to
be acquired. The petitioners 1 and 2 whose lands are situate in Sy. No.411/1 and 411/3 cannot be expected to imagine that their lands would in
fact be acquired. The petitioners 1 and 2 later came to know that there is no Sy. No.411/lB and 411/3A. Further, in Sy. No.411/1 the total extent
of land about Ac. 1.55 cents and the total extent of land in Sy. No.411/3 is about Acs.10-07 cents. In the notification it was shown that in Sy.Nos.
411/lB and 411/3A an extent of Ac.0.17 would be acquired but it was not shown which part of the total extent of land in each survey number
would be acquired. The said notification did not even contain plot numbers although the land had been divided into plots approved by the
concerned authorities. It is also further stated that in case of petitioners 3 and 4 Ac.0-08 cents was merely shown as private land and the survey
number shown is 328/2A3. The names of the petitioners 3 and 4 were not shown in the notification and petitioners 3 and 4 later came to know that
there is no Survey Number like 328/2A3. The total extent of the land in Sy. No.328/2A is Acs.2-87 cents and it was not shown which part of the
said total extent of land was proposed to be acquired. It is further stated that in the case of the 5th petitioner an extent of Ac.0-06 cents was
proposed to be acquired in Sy. No.430/C/2D, but the notification did not contain the name of the 5th petitioner. The total extent of land in Sy.
No.430/C/2D is Acs.2-53 cents and it was not shown which part of the land was proposed to be acquired out of the said total extent of the land.
Further, in the notification dated 9.10.2006 issued u/s 3D(1) and (2) of the Act, new entries had been brought showing the names of the land
owners/interested persons and the plot numbers. But these new entries are not free from material defects as some of the names of the actual
owners were not either shown or names of others who are not the owners were shown. The name of the 1st petitioner is not at all shown but the
name of the 2nd petitioner is shown as the owner of Plot No. 49. In the case of petitioners 4 and 5, their names are not at all shown in the
notification. It was merely mentioned as Vanijya Nagar Plot No. 100 and Vanijya Nagar Plot No. 101. Even in the notification dated 24.11.2006
issued by the 2nd respondent the names of the petitioners 3 and 4 were not shown. In the case of the 5th petitioner, her name was not at all shown
and in stead the names of seven other persons were shown. Even in the notification dated 24.11.2006 issued by the 2nd respondent, the name of
the 5th petitioner was not shown. Thus the aforesaid facts clearly disclose that both the notifications issued under Sections 3A and 3D of the Act
do not conform to the requirements of Law. The draft notification is vague without containing the names of the persons likely to be affected and did
not indicate which parts of the total extent of land in each Survey number was proposed to be acquired. The final notification issued u/s 3D and the
Notification issued u/s 3G by the 2nd respondent also either did not indicate the names of the affected persons or they were shown wrongly. The
petitioners therefore had no opportunity to submit their objections to the notification dated 11.10.2005 issued u/s 3A of the Act. In the meanwhile,
the respondents had started interfering with the possession and enjoyment of the lands of the petitioners and inasmuch as the action of the
respondents in this regard is not legal, the petitioners are constrained to file the present writ petition and certain Grounds also had been raised
attacking the notifications impugned in the writ petition.
8. In the counter-affidavit filed by the 2nd respondent it is stated that the development and maintenance of National Highway-7 was entrusted to
National Highway Authority of India as per National Highway Authority of India Act 1988. National Highway Authority of India had taken up the
widening of existing two lanes of National Highway-7 as part of North-South corridor. Extensive survey work had been carried out by the D.P.R.
Consultants M/s. DALAL MOTT MAC DONALD from K.M. 203.00 to K.M. 293.00 of Hyderabad-Bangalore section and proposed the
alignment based on the site consideration and also considering various technical aspects. Accordingly, National Highway Authority of India had
initiated land acquisition proceedings pertaining to the petitioners'' site abutting National Highway-7 of Hyderabad-Bangalore section which is
inevitable for four lane widening. It is also further stated that it is an admitted fact that Section 3A Notification dated 29.8.2005 under the Act was
got published in the prominent local Newspapers in vernacular language ""The Eenadu"" on 8.10.2005 and in the ""The Indian Express"" on
9.10.2005. Before issuing the Notification u/s 3A of the Act, a survey was conducted and stones were erected showing the extent of sites affecting
in widening of the road. The petitioners are well aware of the fact that their land is getting affected in widening of the road and acquisition of their
shops/sites by the National Highway Authority of India. It is also further stated that Section 3A Notification under the Act was issued in the
standard format adopted by the National Highway Authority of India as per the Act in which only survey numbers and extent of areas proposed to
be acquired are mentioned and hence there is no vagueness in the said notification. As per the notification, the petitioners were to file their
objections within a period of 21 days from the date of notification. It is also an admitted fact that the petitioners had not filed any objections with
regard to the acquisition of their property and therefore they cannot question the notification on flimsy grounds. The petitioners know about the said
notification, but could not submit their objections to the 2nd respondent within 21 days as required under the Act and the Notification u/s 3A of the
Act. The other persons who are interested in the land had submitted their objections within the time and the same had been disposed of by the 2nd
respondent after affording opportunity of hearing the objections. The petitioners land is abutting to the road side margin and it is not true to say that
the land of the petitioners is situate away from the main road. It is also further stated that the 2nd respondent had passed the Award with regard to
the land in Sy. Nos. 411/1, 411/3, 328/2A and 430/C2 of the petitioners. All the petitioners had participated in the Award enquiry and had
claimed the compensation. The petitioners had also given an indemnity bond on Rs. 100/- non-judicial stamp paper stating that there is no dispute
or there is no possibility of any dispute about the ownership or interest in the land acquired in Sy.Nos. 411/1, 411/3, 328/2A and 430/C2 of
Kalluru Village and hence the petitioners have no right to question the notification after passing of the Award on 16.6.2007 and after a long gap of
nearly two years. It is further stated that the contention of the petitioners that in the mentioned survey numbers the total extent of land is about Acs.
4-50 cents and Acs.2-50 cents and whereas in the notification the extent shown is as small as ranging from Ac.0.03 cents to Ac.0.20 cents is not
correct. The petitioners are liable to be put to strict proof of their contention. The petitioners are well aware of the acquisition while participating in
the Award enquiry and after participating in the Award enquiry the petitioners are estopped from contending that they do not have knowledge of
acquisition of their lands. The land in survey number may have Acs.4.00 or above but in the notification the notified extent is exact to the survey
number with sub-division and it means the notified extent exclusively belongs to the persons whose names were shown in the notification u/s 3D of
the Act and the subsequent notification u/s 3G of the Act. Hence, there is no confusion either in the notification issued u/s 3A of the Act or in the
subsequent notifications. On the other hand, the petitioners had participated in the Award enquiry and as such they cannot question any of the
notifications on flimsy grounds that they do not know about the notifications or on any other ground. The extent of land in each survey number
under acquisition is shown in Square Meters which is equivalent to acres and cents even after conversion in terms of 40 Sq. meters. = 1 cent.
Hence, there is no variation in the extent furnished in the notifications u/s 3A dated 17.10.2005 and or u/s 3D dated 9.10.2006 of the Act. It is
also further stated that the alignment was approved based on the D.P.R. Consultants proposals and the DPR Consultants had followed the norms
while designing the Highway. The radius of curve in front of the land of the petitioners is 2000m whereas as per IRC radius more than 500m is
permitted and hence there is no technical fault in the design. It is further stated that the authorities had taken all steps to reduce the cost of widening
of the road either by paying compensation or construction of bridges wherever necessary. The estimation of the petitioners for widening of the road
at their place is hypothetical and not based on any merits. It is also further stated that after following the procedure, a notification u/s 3D(1) of the
Act was got published on 9.10.2006. As per the Act, u/s 3D(2), on the publication of the declaration u/s 3D(1), the land shall vest absolutely in
the Central Government free from all encumbrances. As such, the land of the petitioners shall vest with the Central Government and the petitioners
are entitled for compensation from the 2nd respondent. Further specific stand is taken that the alignment proposal was fixed by D.P.R. Consultants
keeping in view the geometries of the road, road safety during construction and after construction etc., and as such the change of alignment for the
benefit of an individual cannot be considered. The entire procedure for acquisition of the land in question had been followed under the Act. It is
further stated that as per the direction of this Court in W.P. No. 15211/2007 work in progress was stalled which involves huge loss to the public
exchequer and unless this Court vacates the said interim directions granted on 19.7.2007, irreparable loss and damage would be caused to the
public money and the public at large would suffer for non-progress of the widening of the road at the petitioners place.
9. The Act, Act 48/1956 is an Act to provide for declaration of certain highways to be national highways and for matters connected therewith.
Section 3 of the Act deals with Definitions and Section 3(a) defines ''competent authority'' as ""In this Act, unless the context otherwise requires
''competent authority'' means any person or authority authorized by the Central Government, necessary notification in the Official Gazette, to
perform the functions of the competent authority for such area as may be specified in the notification"". Section 3B of the Act deals with Power to
enter for survey, etc. Section 3C of the Act deals with Hearing of objections. Section 3D of the Act deals with Declaration of acquisition. Section
3E of the Act deals with Power to take possession. Section 3F of the Act deals with Right to enter into the land where land has vested in the
Central Government. Section 3G of the Act is another important provision which deals with Determination of amount payable as compensation and
the said provision reads as hereunder:
(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.
(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the
owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an
amount calculated at ten per cent of the amount determined under Sub-section (1), for that land.
(3) Before proceeding to determine the amount under Sub-section (1) or Sub-section (2), the competent authority shall give a public notice
published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be
acquired.
(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a
legal practitioner referred to in Sub-section (2) of Section 3C, before the competent authority, at a time and place and to state the nature of their
respective interest in such land.
(5) If the amount determined by the competent authority under Sub-section (1) or Sub-section (2) is not acceptable to either of the parties, the
amount shall, on an application by either of the parties, be determined by an Arbitrator to be appointed by the Central Government.
(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration
under the Act.
(7) The competent authority or the Arbitrator while determining the amount under Sub-section (1) or Sub-section (5), as the case may be, shall
take into consideration--
(a) the market value of the land on the date of publication of the notification u/s 3A;
(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from
other land;
(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously
affecting his other immovable property in any manner, or his earnings;
(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable
expenses, if any, incidental to such change.
Section 3H of the Act deals with Deposit and payment of amount. Section 3J of the Act dealing with Land Acquisition Act 1 of 1984 not to apply
specifies ""Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act"". It is needless to say that though Section 3A of
the Act may be to some extent akin to Section 4 of the Land Acquisition Act, on a careful examination of the language, this provision is not in pari
materia or exactly the same as that of the corresponding provision under the Land Acquisition Act. Sub-section (2) of Section 3A of the Act
simply says ""Every notification under Sub-section (1) shall give a brief description of the land"". Sub-section (3) of Section 3A says ""The competent
authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacidar language "".
10. In State of Haryana and others Vs. Dewan Singh and others, , the Apex Court while dealing with the Award made by the Collector under the
Land Acquisition Act held that after the Award is made by the Collector under the Land Acquisition Act, the notification u/s 4 of the Land
Acquisition Act or declaration u/s 6 of the said Act after making the Award cannot be challenged since the same is impermissible. Reliance also
was placed on Mohanji and Anr. v. State of U.P. and Ors. JT 1995(8) SC 599, wherein the Apex Court while dealing with the Award made
under the Land Acquisition Act observed that in view of the fact that no piecemeal Award by making a subsequent Award after the expiry of two
years is contemplated in Law, the Award must be construed as the whole Award made u/s 11 awarding compensation for the entire area of
Ac.0.99 cents with no compensation awarded for the building and the appellants could claim compensation for the building by seeking a reference
u/s 18 of the said Act. No doubt, these decisions are under the Land Acquisition Act.
11. The relevant provision of the non-applicability of Land Acquisition Act to the acquisition under The National Highways Act, 1956, i.e., Section
3J of the Act, already had been referred to supra. However, it was contended by the learned Counsel representing the 2nd respondent that the
same principle is applicable even in the case of acquisition under this Act. The learned Counsel representing the writ petitioners placed strong
reliance on the decision of the Apex Court referred in Competent Authority v. Bangalore Jute Factory and others (supra), wherein the Apex Court
while dealing with the provisions of the Land Acquisition Act and also the provisions of the Act in question in the present case observed at Para
15:
Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land.
There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted
the date of notification so that the land owners are adequately compensated. Reference may be made to: (a) Ujjain Vikas Pradhikaran Vs. Raj
Kumar Johri and others, , (b) Gauri Shankar Gaur and Others, etc. Vs. State of U.P. and Others, , (c) Haji Saeed Khan and Others Vs. State of
U.P. and Others, . In that direction the next step is what should be the crucial date in the facts of the present case for determining the quantum of
compensation. We feel that the relevant date in the present case, ought to be the date when possession of the land was taken by the respondents
from the writ petitioners. This date admittedly is 19th February, 2003. We, therefore, direct that compensation payable to the writ petitioners be
determined as on 19th February, 2003, the date on which they were deprived of possession of their lands. We do not quash the impugned
notification in order not to disturb what has already taken place by way of use of the acquired land for construction of the national highway. We
direct that the compensation for the acquired land be determined as on 19th February, 2003 expeditiously and within ten weeks from today and
the amount of compensation so determined be paid to the writ petitioners after adjusting the amount already paid by way of compensation within
eight weeks thereafter. The claim of interest on the amount of compensation so determined is to be decided in accordance with law by the
Appropriate Authority. We express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free
to exercise the same, if available. The compensation as determined by us under this order along with other benefits, which the respondents give to
parties whose lands are acquired under the Act should be given to the writ petitioners along with what has been directed by us in this judgment.
12. In the light of the respective stands taken by the parties, the provisions of the Act referred to supra and also the language employed in Section
3A of the Act and on a careful scrutiny of the notifications issued, this Court is of the considered opinion that the notifications as such do not suffer
from any legal infirmity warranting any interference by this Court under Article 226 of the Constitution of India and hence the said notifications are
not liable to be quashed. However, in the light of the ratio laid down by the Apex Court in the decision referred in Competent Authority v.
Bangalore Jute Factory and Ors. (supra), which had been decided in the context of the Act and the notification u/s 3A of the Act, though the
impugned notifications are left untouched, it is made clear that the relevant date to determine the compensation to be taken as the date when
possession of the land had been taken by the respondents from the writ petitioners and the claim of interest on the amount of compensation so
determined to be decided in accordance with Law by the Appropriate Authority.
With the above directions, the writ petition is disposed of. No order as to costs.