AL. Ramanathan vs The Government of India and The National Highways Authority of India

K. Chandru, J.—The petitioner is the land owner owning 18,000 Sq.feet of land in Town survey 249/1B. Old ward No. 3, New No. C,

Block No. 4, Srirankam at Trichirrappali Taluk. The said land belongs to the Indian Oil Corporation Ltd. He was given petrol and diesel oil

dealership and from the year 1983 he is running the retail out-let in the said survey No. Adjacent to the said petrol bunk, the petitioner owns lands

in T.S. No. 249/1A, 253/2A and 245/1B. The petitioner also had established a service station and constructed a two storied building in those

lands.

According to the petitioner the petrol bunk was located in the Highways in accordance with the distance norms prescribed by the I.O.C.

It is stated that the Government of India issued a notification u/s 3A(1) of the National Highways Act for acquisition of the land to improve the

National Highways No. 45 and the present land comes between kms 313/0 and 314/0 in (Padalur - Trichy Sector). The National Highways

Authority, the 4th respondent herein wanted to make the two lane road into a four lane road. Since the widening of the land was to be done on the

northern side, the plan affected the existing structures put up by the petitioner and his business.

The petitioner sent an objection dated 01.12.2004 to the first respondent. Thereafter, the second respondent, DRO, directed the petitioner to

appear on 09.12.2004. It is stated that he also gave a detailed objections. But without considering his objections, the second respondent, DRO,

Tiruchirappali, rejected the petitioner''s application dated 29.04.2004. Aggrieved by the said rejection, the petitioner filed W.P. No. 4449 of

2005. This Court allowed the writ petition by a judgment dated 29.04.2004 and directed the second respondent to consider the objections after

applying his mind.

Pursuant to the said order, the petitioner once again submitted his objections dated 30.06.2008. He was called for an enquiry by the DRO.

Remarks were called for from the 4th respondent. Accordingly, the 4th respondent offered remarks on the objections vide his proceedings dated

01.07.2008. Basing upon those objections, the second respondent, DRO, rejected the petitioner''s objections. All the 17 objections were rejected

by relying upon the report of the Project Director. By an order dated 04.07.2008 the second respondent, DRO came to the following conclusions:

Generally if any project is taken up for implementation by the Government, certain disadvantages have also been cropped up. Likewise there are

some inconveniences caused to the petitioner Thiru. AL. Ramanathan and his party by parting some portion of his lands and buildings which are

unavoidable in the project implementation.

I am of the opinion that the project of four laning road development from Tindivanam to Tiruchirappalli section is a great boon to the people of this

region and its developments. The benefit of the Road Development will go to all section of society. Moreover, the project should be completed

within the stipulated time. For land acquisition, the National High Ways Act 1956 is followed.

The enquiry was conducted on the orders and direction of Hon''ble Madurai Bench of Madras High Court in W.P. No. 4449 of 2005 dated

09.06.2008, on the objection petition filed by Thiru. AL. Ramanathan dated 20.12.2004 and re-enquiry conducted on 30.06.2008 u/s 3C(1) of

National High Ways Act 1956 in connection with acquisition of lands in T.S. No. 249/1A, 249/1B, 245/2B and 253/2A and total extent 1617

Sq.mts for four laning road formation in NH-45 and orders passed u/s 3C(2) of the National High Ways Act 1956 by rejecting all objections

raised by the petitioner A.L. Ramanathan as null and void.

It is this order, which is under challenge, in this writ petition .

The writ petition was admitted on 29.07.2008 and and interim-stay was also granted for three weeks on the same day. On behalf of the 4th

respondent, an application to vacate the stay in M.P.(MD) No. 3 of 2008 has been filed.

The petitioner also filed M.P.(MD). No. 1 of 2008 an appointment of a technical expert in the field of highways to make an on the spot of study

and to evaluate his objections and to give his report. When these matters for came up for hearing, with the consent of parties, the main writ petition

was taken up for disposal.

Mr. S. Parthasarathy, learned Senior Counsel submitted that the second respondent abdicated his jurisdiction in rejecting his objections and

merely relied upon the remarks offered by the Project Director. Therefore, his prayer in M.P.(MD). No. 1 of 2008 should be accepted and

technical expert should be appointed. This request of the petitioner cannot be accepted and it cannot be said that the Project Director of the 4th

respondent is not a technical expert.

A detailed counter affidavit dated 11.08.2008 has been filed by the fourth respondent dealing with all the objections raised by the petitioner.

The principal objection of the petitioner land owner was mainly based upon saving his own land from the acquisition and it shows his private

interest. He is not basically opposed to the widening of the National Highway. Therefore, in order to save his land, he has suggested a curve on the

southern side of the road.

In response to the said request, the 4th respondent''s counter affidavit contains averments in para Nos. 17 and 20 and the same may be

extracted:

It is submitted that for the contention in para:14, during 1959, land was acquired for the construction of bypass. Owning to the implementation

of project of four land in the NH standard acquisition of land should be done based on the alignment requirement and not as per the land

availability. If the petitions suggestion for laying road in the southern side, the present alignment will be zig zag and not straight and smooth. As per

IRC guidelines and Ministry specification a minimum land width of 60m has to be acquired for all the NHAI traffic growth. Especially, the said

disputed location falls immediately on the approach of Kollidam bridge and also in between the two major brides namely kollidam and cauvery

since these two major bridges are being widened on the LHS it is mandatory to widen in between road portion also on LHS and it is not possible

to design each and every curve in between as concentric or eccentric on any one side as the petitioner insisting. Further, the adjacent land on both

the sides of the petitioner has also been cleared and there is no impediment in implementing the project and the road works are in progress. Thus,

the road cannot be laid as per the choice of the petitioner at this juncture in the location. Then the alignment shift will actually fall on the existing

Kollidam bridge which may necessitate dismantling the existing bride fully and reorienting them to suit the alignment which is a costlier affair and not

desirable. Therefore, contention is not tenable on facts.

...

It is submitted that the averment in para:17 in compliance with the Hon''ble Courts order the SDRO after observing the required process of

law has passed orders on 04.07.08. The allegation that the second respondent has changed the parameters is not correct. The parameters were

improved in order to tune the design of the road by the consultancy with the stipulation of IRC specification. Both the parameters are meeting the

IRC guidelines IRC 38-1988. hence, there is no contradiction as averred by the petitioner. All action to implement the project is initiated in

conformity with the specification of MoRT&H and IRC. Thus, the contention is raised with vexation by the petitioner which is not maintainable by

facts.

The petitioner''s contention that the second respondent had relied upon the report of the Project Director and did not form any independent

opinion cannot be accepted by this Court. Though the second respondent is the competent authority and empowered to hear objections, he need

not be an expert on the said field. He can always rely upon the remarks furnished by the Project Director, who is an expert in this field. No motives

were attributed against the Project Director. This Court is not willing to go into the detailed submissions made by the counsel with reference to

technical details and data so as to direct the realignment the curve on the highways and so that the petitioner''s land can be saved. Even if there are

two views are possible, this Court is not inclined to prefer the view of the petitioner. It is also not the job of this Court to give alternative proposals

regarding the alignment of the road.

In this context, it is necessary to refer to the judgment of this Court in Shri Andal Alagar Kalyana Mandapam Private Limited v. Union of India

reported in 2007 (7) MLJ 1021 and the relevant passage found in para:53, is usefully extracted below:

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 Jutice V.R. Krishna Iyer in Dr. Jagadish Saran and Others Vs. Union of India (UOI), , 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.

This judgment was approved by a Division Bench of this Court to which this Court is a party (K.CHANDRU.J) and An SLP against the

Division Bench was also rejected by the Supreme Court.

Further R. Kumar and Ors. v. State of Tamil Nadu and Ors. reported in 2006 4 CTC 640 a Division Bench of this Court to which this Court

is a party (K.CHANDRU.J), the relevant passage found in paragraph nos:27 & 28 of that judgment may be usefully extracted below:

Mr. K.M. Vijayan, learned Senior Counsel appearing for the appellants, thereafter submitted that de hors all the above illegalities allegedly

done by the first respondent that the writ petitioners have not been shown equity and equal protection of law and they have taken sufficient steps to

prevent the demolition of the building of the writ petitioners which had come into existence strictly in accordance with law and as per the road

boundary statutorily fixed by the authorities and enforceable even today and they should have accommodated 3 to 4 feet in the existing building.

This exercise as to whether the writ petitioners'' building should be allowed to stand by providing 3 to 4 feet in front of the said building, has

already been done by the authorities more than once which was recorded by the learned Judge. In any event, as per the sketch shown by the

State, it is not the appellants'' building alone that had come under the acquisition. But hindrance of all the buildings are sought to be removed either

partially or fully for the purpose of widening the OMR Road.

In a matter of this magnitude, where the State has undertaken a mega project in providing a Express Highway comprising of six lane with a

view to make infrastructure development to IT companies, public interest requires that such an activity should be allowed to proceed and cannot

be stultified by the litigation indulged by the appellants, who have expressed their private interest in these Appeals. The learned Senior Counsel

appearing for the appellants fairly conceded that the power to acquire any land for public purpose is always available to the authorities and once

the compensation is given, the power is complete and that is the correct legal position. In the present case, there is no deviation or violation of any

procedure established by law and the appellants / writ petitioners cannot have any legal grievance.

In the light of the above, this Court is not inclined to entertain the writ petition. Accordingly, this writ petition will stand dismissed. No costs.

Consequently, connected miscellaneous petitions are closed.