The Project Director vs Santha

R.K. Agrawal, C.J. and K. Ravichandra Baabu, J.—The above Writ Appeal is filed against the final order made in W.P. No. 18082 of 2013 dated 31.7.2013. The Appellant is the third party in the Writ Petition and obtained leave of this Court to file this Writ Appeal. The First Respondent herein as the Writ Petitioner filed the above Writ Petition for a Mandamus directing the Respondents 2 & 3 therein (Respondents 3 & 4 herein) to acquire the land under the Fast Track Project to constitute District Level Purchasing Committee under National Highways Act and follow the procedures as laid down under the Guidelines issued by the Government of Kerala vide Order No. 37940/B1/09/RD dated 25.8.2009 and to pay reasonable and adequate Compensation to the land owners taking into account the prevailing market rate within a time frame.

The case of the Writ Petitioner before the Writ Court is as follows:

She is the owner of the land situated in R.S. No. 74/1 of Pallor having an extent of 4.30 ares and is residing with her family in the said property. The National Highways Department decided to form a bypass road connecting NH-17 for a total length of 421 KM and accordingly the Government of Pondicherry initiated Land Acquisition proceedings under the Land Acquisition Act by issuing Notification under Section 4(1) of the said Act to acquire the land situated at Pandakkal, Chalakkara and Palloor Revenue Villages in Mahe Region. The bypass road is passing through 18 KM in the State of Kerala and part of Mahe Region. Though declaration under Section 6 of the Land Acquisition Act was issued and thereafter an Award came to be passed in the month of August and September 2009 in respect of those three villages separately, the land owners refused to receive the Compensation and resorted to various forms of agitations since the value fixed under the said Award was far below the prevailing market rate. A decision was taken by the Government to drop the Land Acquisition proceedings and resort to acquire the land under the National Highways Act, 1956 as done by the State of Kerala, wherein Compensation was paid at Rs. 1,40,000/- per cent by resorting to a procedure called "Fast Track Project" by constituting a District Level Purchase Committee and State Level Empowered Committee. The Government of Kerala issued the Guidelines for accelerating the land acquisition on 25.8.2009. Accordingly, the Central Government issued Land Acquisition proceedings under the provisions of the National Highways Act and the District Collector (Revenue), Mahe was appointed as the Competent Authority to perform the functions of Land Acquisition Officer under Section 3(a) of the National Highways Act by issuing a Notification dated 14.2.2011. Objections from the land owners were called for as contemplated under the National Highways Act and thereafter declaration under Section 3-D of the said Act was published on 28.3.2012. The Government of Kerala, in order to accelerate the land acquisition for the other portion of the very same NH-17, constituted District Level Purchase Committee to determine the land value and State Level Committee to approve the land value proposed by the District Level Purchase Committee. The land owners in Mahe region also wanted constitution of similar Committees for determination of the Compensation for their lands and early payment of the same. They submitted several representations to the Authorities and as there was no response and the Government of Puducherry was reluctant in the matter, the Writ Petitioner approached the Writ Court with the relief as stated supra.

The learned Single Judge by considering the fact that formation of the bypass road connecting NH-17 for a total length of 421 KMS falls to a stretch of 18KM in the State of Kerala and part of Mahe region of Puducherry Government; that the acquisition proceedings initiated under the Land Acquisition Act came to be withdrawn in view of the fact that the Compensation fixed was far below the prevailing market rate; that subsequent Acquisition proceedings were initiated under the National Highways Act as has been done at Kerala also in respect of the remaining part of the bypass road; that in order to accelerate the Land Acquisition proceedings the Kerala State formulated a Fast Track Project by forming District Level Purchase Committee to determine the land value and State Level Empowered Committee to approve the land value and that the Chief General Manager, National Highways Authority of India through his communication dated 9.4.2013 agreed with the suggestion made by the Government of Puducherry for constitution of such Committees for assisting the Competent Authority in determining the Compensation, passed an Interim Order on 11.7.2013 by directing the Chief Secretary, Government of Puducherry to constitute a District Level Purchase Committee and State Level Empowered Committee to determine the Compensation payable to the land owners taking into account that similar Committees were constituted by the Government of Kerala. Accordingly, the Government of Puducherry, constituted District Level Purchase Committee and State Level Empowered Committee in G.O.Ms. No. 7 dated 25.7.2013. Consequent upon formation of such Committees and informing the said fact before the learned Single Judge, the Writ Petition was allowed on 31.7.2013 by directing the Respondents 2 & 3 therein to complete the entire process of determination of Compensation and payment of the amount to the concerned land owners on or before 29th November 2013.

The Appellant is the Project Director, NHAI. Mr. P. Wilson, learned Additional Solicitor General appearing for the Appellant after inviting our attention to various provisions of the National Highways Act, 1956, has submitted as follows:

Only the Competent Authority as contemplated under Section 3(a) of the National Highways Act, 1956, is empowered to determine the Compensation payable as contemplated under Section 3-G of the said Act and therefore the Committees constituted by the Puducherry Government are not only outside the scope of the Act and also not empowered to determine the Compensation payable. The decision of the Kerala Government and constitution of similar Committees are illegal and such action is outside the purview of the National Highways Act, 1956 and therefore, the said illegality cannot be perpetuated. Consequently, Article 14 of the Constitution of India cannot be pressed into service. Necessary parties viz., the Competent Authority and National Highways Authority were not made as parties in the above Writ Petition and therefore, the Writ Petition ought to have been dismissed for non-joinder of necessary parties. The National Highways Authority has not consented at any point of time for formation of the said Committees. The Competent Authority is ready to pass the Award shortly and therefore, there is no necessity for exercise of the role of those two Committees. In support of his submissions the learned Counsel relied on the decisions reported in Chief Conservator of Forests, Govt. of A.P. Vs. The Collector and Others, ; U.P. State Road Transport Corporation and another Vs. Mohd. Ismail and others, and Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, .

Mr. AR.L. Sundaresn, learned Senior Counsel appearing for the first Respondent/Writ Petitioner would submit as follows:

The purpose of constituting the Committees is for paying the just and proper Compensation to the land owners and to assist the Competent Authority. Since the National Highways Authority has filed this Writ Appeal and submitted their submissions, the matter need not be remitted back to the Writ Court for deciding the issue afresh by taking note of the fact that the payment of Compensation is already delayed. The Competent Authority himself is a member in the Committee. Therefore, no prejudice is caused. In respect of the very same project viz., formation of bypass road connecting NH-17, the National Highways Authority accepted the Fast Track Project and the constitution of similar Committees by the Kerala Government and paid the Compensation also. Thus, the same benefit cannot be denied to the rest of the Land Acquisition proceedings at the Mahe Region. There cannot be any discrimination like this. The learned Single Judge considering all the facts and circumstances has exercised his discretion and rendered justice and therefore, no interference is called for in this Writ Appeal.

Mrs. N. Mala the learned Government Pleader appearing for the Puducherry Government submitted as follows:

The Committees were constituted based on the Letter issued by the Chief General Manager of the National Highways Authority of India dated 9.4.2013 and therefore, the Appellant cannot question the formation of such Committees. Notification for acquiring the land under National Highways Act was issued only by the First Respondent in the Writ Petition and therefore, necessary parties were already there before the learned Single Judge.

We have heard the learned Counsels appearing on either side and perused the materials placed before us.

The First Respondent is the Writ Petitioner whose land along with others was subjected to Land Acquisition proceedings for the formation of a bypass road connecting NH-17. The said bypass road was passing with a stretch of 18 KMS in the State of Kerala and part of Mahe Region of Union Territory of Puducherry. Originally, the acquisition proceedings were initiated under the Land Acquisition Act 1894, which also culminated up to passing of the Award in the year 2009. However, the said proceedings were withdrawn by issuing a Notification under Section 48(1) of the Land Acquisition Act, on 3.12.2010, since the land owners refused to receive the Compensation as the same was below the prevailing market rate. It is also not in dispute that subsequently the Authorities decided to proceed to acquire the lands under the provisions of the National Highways Act, 1956. Up to this level there is no quarrel between the parties.

As already found, admittedly, part of the project of forming the bypass road lies within the State of Kerala. As there was delay in completing the Acquisition proceedings and paying the Compensation to the landowners therein, it appears that the Kerala Government, in order to accelerate the Land Acquisition proceedings, resorted to invoke "Fast Track Project" by formulating certain Guidelines. Those Guidelines are extracted by the learned Single Judge at Paragraph 12 of his Order and therefore, we are not reproducing the same once again herein. As per the said project, the Kerala Government constituted the District Level Purchase Committee for arriving at the Market value and forwarding its recommendations to the State Level Empowered Committee. The said Empowered Committee is to consider and approve the land value proposed by the District Level Committee. The Competent Authority will verify the title deeds, etc., and other relevant records of each parcel of land to be purchased. The payment of the land price will be made to the title holder through issuance of Bank cheque by the NHAI. It is also seen that the committee constituted by the Government of Kerala fixed the land value for the lands adjoining the Mahe region at Rs. 1,40,000/- per cent. Taking note of these developments at Kerala in respect of the very same project, the land owners at Mahe region also wanted the Puducherry Government to constitute such Committees and approached this Court. Consequently, they were constituted in pursuant to the Interim Order passed by the learned Single Judge on 11.7.2013. Such constitution of Committees are challenged on several grounds.

Let us first consider the preliminary objection of the Appellant that the Writ Petition is not maintainable on the ground of non-joinder of necessary parties. The leaned Additional Solicitor General Mr. P. Wilson, appearing for the Appellant relied on the decision of the Apex Court reported in Chief Conservator of Forests, Govt. of A.P. Vs. The Collector and Others, , in support of such contention. No doubt, the Competent Authority and the National Highways Authority of India were not made as parties in the Writ Petition. However, the fact remains that the present Appeal has been filed by the Project Director, National Highways Authority of India by obtaining leave of this Court. Now we have also heard the matter on merits by considering the contentions of the parties in full and therefore, we are of the view that we ourselves can decide the merits and contentions in the Writ Petition, instead of remitting the matter back to the learned Single Judge, in view of the fact that the payment of Compensation to the land owners is delayed for several years. This leads us to consider the objections of the Appellant on the merits of the matter.

The core contention of the learned Senior Counsel for the Appellant is that under the National Highways Act only the Competent Authority contemplated under Section 3(a), has to decide and determine the Compensation payable to the land owners and the Committees constituted by the Puducherry Government have no role to play as they are outside the scope of the said Act. The second submission is that constitution of the Committees by the Kerala Government is illegal and therefore such illegality cannot be perpetuated. In support of his contention, the learned Senior Counsel relied on the decision of the Apex Court reported in U.P. State Road Transport Corporation and another Vs. Mohd. Ismail and others, it has been observed as follows:

The Court cannot dictate the decision of the Statutory Authority that ought to be made in the exercise of discretion in a given case. The Court cannot direct the Statutory Authority to exercise the discretion in a particular manner not expressly required by law. The Court could only command the Statutory Authority by a Writ of Mandamus to perform its duty by exercising the discretion according to law.

It is not in dispute that for the very same project and in respect of the part of the other lands lying at Kerala State, proceedings were initiated under the National Highways Act to acquire those lands for the formation of the said bypass road and in respect of such acquisition of lands, the Government of Kerala, in order to accelerate the Land Acquisition proceedings, formulated a project called Fast Track Project and formed the District Level Purchase Committee and State Level Empowered Committee. Such formations of the Committees as a result of the said Fast Track Project was never opposed nor challenged by the National Highways Authority at any point of time and on the other hand by accepting those formations paid the Compensation to the land owners at Kerala, which is evident from the proceedings of the Special Thasildar, Land Acquisition, (NH) No. II, Thalassery and the Competent Authority, dated 10.5.2011. A copy of the said proceedings is placed before this Court by the learned Senior Counsel appearing for the First Respondent. The relevant portion of the said proceedings is extracted hereunder:

The Govt. of Kerala, vide ref. (vi) cited, nominated the acquisition of land for widening of NH-17 as Fast Track Project in Kerala and as per the ref. (vii) cited Govt. of Kerala issued modified Guidelines for accelerating land acquisition for 4/6 planning of NH-17. As per the Guidelines, the land value will be determined by the District Level Purchase Committee after holding negotiation with the project affected persons and forward recommendations to the SLEC for approval. Accordingly, the DLPC meeting held at Collectorate, Kannur on 15.3.2010 decided the land value as Rs. 1,40,000/- (Rupees One Lakh forty thousand) per cent for Garden land (''A ''category of land) and Rs. 54,000 (Rupees Fifty four thousand) per cent for wet land (''B'' category of land) after negotiating the land value with the land owners in the DLPC. The value fixed by the DLPC is the value of land including the improvements except structures. The recommendations of DLPC were forwarded to the State Level Empowered Committee for its approval.

As per the ref. (x) and (xi) cited, the Gov. of Kerala have directed to pass Awards for the land acquired for NH-17 in Kodiyeri Village considering the DLPC recommendations and District Collector, Kannur issued direction accordingly. Hence, in cases where the land owners have consented to accept the DLPC rate and given undertaking relinquishing their right for arbitration under NH Act and admitting to accept the conditions of the Fast Track Project, the amount decided in the DLPC will be paid as Compensation and in other cases the basic land value mentioned above will be awarded. In this case, the land owner has accepted the DLPC recommendations and given consent in writing.

... ... ...

As per the provisions under Section 3-G(1) of NH Act, 1956 and considering the DLPC recommendations, the value of the land is determined at the rate of Rs. 1,40,000/- per cent ( Rs. 3,45,80,000 per Hect.) for Garden land and Rs. 54,000/- per cent ( Rs. 1,33,38,000 per Hect.) fort wet land. Thus, the total Compensation in this case is worked out as detailed below.

Thus, it is manifestly clear that the very same Appellant has accepted such formation of Committees under the Fast Track Project at Kerala State in respect of the very same project and paid the Compensation as per the recommendations of the Committees. Thus, the Appellant by their own conduct is totally estopped from raising objection for formation of similar Committees in respect of the other part of the lands of the very same project lying within the Union Territory of Puducherry, viz. at Mahe region. Certainly there cannot be two yard sticks for paying the Compensation in respect of the very same project in respect of two different adjoining states.

It is further seen from the proceedings of the Chief General Manager of National Highways Authority of India dated 9.4.2013 that the Compensation for the land acquired in Kodiyeri Village in Kerala State was paid based on the directions of the Hon''ble High Court of Kerala. Therefore, it is clear from the proceedings that such formation of Committees by the Kerala Government was never opposed and on the other hand, the payment of Compensation was made to the land owners as per the Committees'' recommendations. Further, from the very same letter, it could be seen that the said Authority had also expressed that NHAI will have no objection to the constitution of similar Committees for assisting the Competent Authority for determination of Compensation in respect of the lands in dispute at Mahe region. Therefore, it is not correct to contend that the National Highways Authority of India has never agreed for constitution of the Committees by the Union Territory of Puducherry. Considering all these facts and circumstances, we are of the view that constitution of such Committees cannot be termed as illegal.

It is true that the submission of the learned Senior Counsel for the Appellant that such constitution of the Committees are beyond the scope of the National Highways Act has some force. It is true that determination of the amount payable as Compensation has to be done only by the Competent Authority and therefore, the said Committees cannot determine and make payment to the land owners.

But, at the same time, it is to be noted that though the Constitution of the Committees is outside the scope of the Act, sill the role to be played by such Committees is not against the object and intent of the Act. There cannot be any dispute that just Compensation is to be paid to the land owners. Such being the object, if the Committees so formed, even though outside the purview and scope of the Act, are only going to facilitate the object sought to be achieved without loss of further time and such recommendations are only going to assist or help the Competent Authority in determining the Compensation amount as contemplated under Section 3-G(7) of the said Act, in our considered view, such constitution of the Committees, more particularly, under the facts and circumstances of the present case, cannot be construed as illegal as contended by the Appellant. It may be an improper formation. But so long as, if such formation of the Committees, though appears to be improper, is not going to defeat the object of the Act, we find that there is no necessity for this Court to interfere with such formation of Committees by taking a different view. No doubt, there are some deviations. When such deviations are allowed to take place only for rendering substantial justice, mere technical objections cannot be permitted to stand in the way of achieving the ultimate object of rendering substantial justice.

At this juncture, we would like to refer to the recent decision of the Apex Court reported in Laxmibai (Dead) thr. L.Rs. and Another Vs. Bhagwantbuva (Dead) thr. L.Rs. and Others, , wherein at Paragraph No. 49 the Hon''ble Supreme Court has observed as follows:

49..... When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the Courts may in the larger interest of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best.

Further, in the decision reported in Union of India (UOI) and Others Vs. Ex-GNR Ajeet Singh, , the Hon''ble Supreme Court has observed at Paragraph 24 as follows:

The expression "failure of justice" would appear, sometimes, as an etymological chameleon. The Court has to examine whether there is really a failure of justice or whether it is only a camouflage. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. Even the law bends before justice. The Order of the Court should not be prejudicial to anyone.

The above decisions of the Hon''ble Supreme Court, thus would show that even if there is an irregularity or slight breach of law, the same cannot stand in the way of rendering substantial justice. Therefore, the formation of the Committees has to be treated only as a guiding factor or force to the Competent Authority for determination of the Compensation and disburse the same at the earliest to the land owners.

It is further to be seen that under sub-section (5) of Section 3-G of the said Act an Arbitrator to be appointed by the Central Government is empowered to determine the Compensation, if the amount determined by the Competent Authority is not acceptable to either of the parties. Thus, the formation of the Committees can also be viewed as minimising the time for determination of the Compensation as we found that such formation of Committees is only to assist the Competent Authority to determine the Compensation. Thus, we find that the contention of the learned Senior Counsel that illegality cannot be perpetuated is unsustainable.

Further sub-section (7) of Section 3-G of the said Act contemplates what are the facts to be taken into consideration while determining the Compensation either by the Competent Authority or by the Arbitrator. Thus, the Committees constituted have to assist the Competent Authority in determining the Compensation in accordance with Section 3-G(7).

Further, as it is admitted that the very Competent Authority himself is a member in the District Level Purchase Committee, we find that no prejudice is caused to the Appellant in any manner. In other words, the Competent Authority is only having the assistance of other members of the Committee in determining the Compensation. Since we hold that there is no illegality in the formation of the Committees, we reject the contention that illegality is being perpetuated. Accordingly, the decision relied on by the learned Senior Counsel reported in Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, , in this aspect has no application to the facts and circumstances of the present case.

It is also made clear that constitution of the Committees in this case by the Puducherry Government is applicable only to the present case alone by taking into consideration of the facts and circumstances of this case and cannot be treated or construed as a precedent for constitution of such Committees to any other Land Acquisition proceedings. In fact, G.O.Ms. No. 7 dated 25.7.2013 constituting such Committees by the Puducherry Government has also made it clear that such constitution of Committees shall not be applicable to any other Land Acquisition proceedings.

No doubt the Order of the learned Single Judge at Paragraph 25 directed the Respondents 2 & 3 therein to complete the entire process of determination of Compensation and payment of the amount to the concerned land owners. We make it clear that such determination of Compensation and payment of the amount to the concerned land owners shall be made only by the Competent Authority who in turn will take into account all the recommendations of the District Level Purchase Committee as approved by the State Level Empowered Committee while arriving at the quantum of Compensation. Such exercise shall be done by the Competent Authority within a period of six weeks from the date of receipt of copy of this Order. With these observations and directions, the Writ Appeal is dismissed. Consequently, the connected M.P. is closed. No costs.