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Judgment
P. Jyothimani, J.—In respect of an extent of 4172 square meters of land belonging to the writ Petitioner, the National Highways authorities
have initiated acquisition proceedings for the purpose of widening the national highways in Samayanallur. It is stated that the declaration of
acquisition proceedings u/s 3-D(1) of the National Highways Act 1956 was made on 19.01.2007 by way of notification. After publication was
made on 19.01.2007, the determination of amount payable by way of compensation was issued by way of public notice u/s 3-G(3) of the Act by
the second Respondent, the competent authority on 06.03.2007. Thereafter, on 15.05.2007, an award came to be passed and that award amount
is stated to have been deposited in the Sub Court, Madurai on 22.11.2007 by the competent authority.
Earlier, the writ Petitioner has approached this Court by filing W.P. No. 152 of 2008 for a Mandamus, to forbear the Respondents not to
demolish his building which containing power house consisting of generator. This Court by an order dated 22.09.2008 has dismissed the writ
petition on the ground that proceedings already initiated under the National Highways Act 1956 has not been challenged by the Petitioner.
It appears that in the said writ petition, there has been some undertaking given by the authority under the National Highways Act to remove the
generator and diesel tank at their cost since the possession has been taken on record. It was against the said order of the learned Single Judge, a
writ appeal in W.A. No. 618 of 2008 was filed and this Court by an order dated 30.09.2008,while considering the plea of the Petitioner that the
notice as required u/s 3-E for taking possession was not given, has directed the second Respondent to issue such notice as per the said Act.
It was, thereafter, pursuant to the direction issued by the Division Bench of this Court, the second Respondent has issued a notice u/s 3(E)(1) of
the Act for taking possession of the property as early as on10.10.2008. On receipt of such notice, the Petitioner has given his objection on
22.12.2008. The main objection being that the second Respondent National Highways Authority having given an undertaking before this Court in
the writ petition stated above to remove generator and diesel tank in the power house at their own cost have failed to do so. It was consequent to
the possession notice issued u/s 3(E)(1) of the Act, the Project Director of the National Highways Authority has issued the impugned notice dated
24.12.2008 stating that the possession pursuant to the notice u/s 3(E)(1) has been taken and in the said impugned notice, the Project Director has
stated that the National Highways authority is proposed to shift generator on 26.12.2008 or any other suitable date as fixed by the National
Highways Authority of India and directed the Petitioner to depute a responsible person to locate the site where the materials namely, the generator
is to be stored. He further stated that if such representative fails to turn up then the removed materials will be stored in any other place at the choice
of the authority. It is this communication of the Project Director which is challenged in this writ petition mainly on the ground that the Project
Director has no jurisdiction to issue such notice and also on the ground that non giving of physical possession is only due to the conduct of the
Respondent National Highways Authority in not acting as per the undertaking to remove the generator on its cost.
In the counter affidavit filed by the Respondents, it is stated that what is impugned in this writ petition is a notice given by the Project Director, is
only a consequence to the statutory notice issued for possession u/s 3(E)(1) of the National Highways Act, 1956 and therefore, the question of
jurisdiction does not arise. It is the communication by which one of the responsible officers of the National Highways Authority has requested the
Petitioner to depute a person so as to enable the execution of the undertaking given by the authority for removing of generator and therefore, the
jurisdiction question does not arise. It is also stated that the National Highways Authority is always prepared to act as per the undertaking given
earlier. The reason for the delay is attributable to the Petitioner since the Petitioner has not authorized any person to be present for the purpose of
removing of generator.
It is also the case of the Respondents as submitted by the learned Assistant Solicitor General that even in case where the Petitioner is aggrieved
by the amount of award passed as per the provisions of the Act, he has every right to file necessary application before the Sub Court for
enhancement of compensation.
On the face of the above said factual matrix which is not in much dispute, there is no difficulty to conclude that the order impugned is only the
consequence to the statutory notice issued u/s 3(E)(1) of the Act which reads as follows:
3-E. Power to take possession:-(1)Where any land has vested in the Central Government under Sub-section (2) of Section 3-D and the amount
determined by the competent authority u/s 3-G with respect to such land has-been deposited under Sub-section (1) of section 3-H, with the
competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who
may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorized it in this
behalf within sixty days of the service of the notice.
It shows that after following the various provisions of the Act, including as per Sections 3-D(2), 3-G, the competent authority shall issue notice in
writing to the owner to surrender and deliver possession.
Admittedly 3-E(1) was issued by the second Respondent which is authority competent to issue such notice. A reference to the notice issued u/s
3-E(1) shows that the authority competent has in fact followed the provisions of the National Highways Act 1956, before issuing such possession
notice. Therefore, there can be no illegality which can be attributable to the said statutory notice issued u/s 3-E of the Act. But as far as the
consequential notice issued by the Project Director as correctly submitted by the learned Assistant Solicitor General, it is only to give effect to the
statutory notice issued u/s 3-E of the Act, the Project Director being the responsible Officer of the National Highways Authority has only directed
the Petitioner to deputy responsible person so as to enable the National Highways Authority to remove the generator from the room as per the
earlier undertaking given by the Authority. Therefore, the point raised by the Petitioner as vehemently submitted by the learned Counsel for the
Petitioner that the consequential notice has no jurisdiction, has no meaning.
As far as the other point regarding the alleged fault committed by the Respondents in not removing the generator or shifting the generator room,
the Petitioner has not deputed any person as it is seen in the impugned consequential notice itself, the Project Director has stated that the National
Highways Authorities would remove and keep the generator in the place of its choice but the National Highways Authority has only waited till the
Petitioner deputed a responsible person to locate the site and that cannot be held to be any deliberate violation on the part of the National
Highways Authority in implementing its undertaking. It is now as submitted by the learned Assistant Solicitor General, the National Highways
Authority is ready and willing to remove the generator and cost has also been arrived after consulting proper authorities and the cost will be borne
by them. If so, I am of the considered view, the Petitioner cannot have any grievance at all. Further, if the Petitioner has got any grievance about
the quantum of compensation, it is always open to the him to approach the appropriate the forum for the purpose of enhancement of compensation
as per Section 3-G(5) of the Act which reads as follows:
3-G(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 the arbitrator to be appointed by the Central Government.
In such view of the matter, there is absolutely no illegality in the impugned notice issued u/s 3-E(1) of the Act as well as the consequential order
passed by the Project Director. The writ petition stands disposed of. However, liberty is granted to the Petitioner to approach the Arbitrator for
the purpose of enhancement of compensation, if so advised. Thereafter, the generator room and other machineries as per the undertaking given by
them are permitted to take possession at their cost within two weeks. It is made clear that as and when the third Respondent gives a letter to the
Petitioner indicating the date for execution of the said undertaking, the Petitioner shall depute one of its representative and in the absence of such
representative being present in spite of such notice having received by the Petitioner, it is always open to the third Respondent to execute its
undertaking and keeping the materials in the place of its choice by taking appropriate inventory. No costs. Consequently, connected miscellaneous
petitions are closed.