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M/s. Texmo Precision Castings, Rep.by its Managing Partner Damayanthi Ramachandran v/s The Secretary, The Ministry of Road Transport & Highways, The Government of India, New Delhi & Others

    Writ Appeal No. 196 of 2019 & C.M.P. No. 2060 of 2019

    Decided On, 05 February 2019

    At, High Court of Judicature at Madras


    For the Appellant: P.M. Duraiswamy, Advocate. For the Respondents: Su. Srinivasan, Standing Counsel.

Judgment Text

(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order passed in W.P.No.19298 of 2018 dated 27.09.2018 on the file of this Court.)

N. Sathish Kumar, J.

1. This appeal has been filed against the order passed by the Learned Single Judge dismissing the Writ Petition, which has been filed to quash the Notification of the Second Respondent in Ref. No.1/2017/A1 dated --/03/2018 issued U/s.3A(1) of National Highways Act 1956, concerning acquisition of the Appellant's lands situated in S.F.No.111/1A, 55/3B 2A, 55/3B2B & 55/3B3 with total area of 491 sq mts of Mullapadi Village, Kinathukadavu Taluk, Pollachi Road, Coimbatore District, for the formation of 4/2 laning from Pollachi to Coimbatore Section and as well as the consequential order made in Ref.No.6/2017 dated 25.06.2018 on the file of the Second Respondent.

2. The case of the Appellant in brief is as follows:

2.(a) The Appellant is running an industry in the name and style of M/s.Texmo Precision Castings at Kovilpalayam, Pollachi Road, Coimbatore. Earlier, the Second Respondent issued a notice under Section 3G(3) of the National Highways Act stating that lands to an extent of 659 sq.mts in Survey Nos.111/1A, 55/3B 2A, 55/3B2B and 55/3B3 in Mullapadi Village, Kinathukadavu Taluk, Pollachi Road, Coimbatore District, were needed for a public purpose, namely, widening four lane, building, maintenance, management and operation of the National Highways No.209, in the stretch of land from 123-550 km to 150-400 km. The lands proposed to be acquired are abutting to the road measuring 306.6 mtrs length and 2.15 mts width. Even though the Appellant was affected by the said acquisition, they accepted the acquisition proceedings in the larger public interest and made a claim for a sum of Rs.7,91,65,726/- as compensation. When the above award proceedings is pending, once again, the Second Respondent issued another notification under Section 3A(1) of the National Highways Act, stating that another extent of 491 sq.mts in the above said survey numbers sought to be acquired for widening of the road and invited objections. The Appellant submitted their objection on 13.04.2018 on the ground that the acquisition of the land would greatly affect the industrial security and it will also affect the septic and sewage line system, security cabin, pathway access to approach the dining room. The above objection was forwarded by the Second Respondent to the Third Respondent inviting his remarks and after enquiry, the Second Respondent has passed the impugned order, thereby rejecting the Appellant's request for excluding the land.

3. The Third Respondent in their counter affidavit have stated that the up-gradation of Dindigul-Bangalore Road in NH-209 to four lane with paved shoulders in the State of Tamilnadu was taken up by the National Highways Authorities of India and the above project was transferred to State Highways Authority for implementation after finalisation of tender. After finalisation of tender, the agreement entered into between the National Highways Authority of India and the contractor. As per the agreement, there is a provision for construction of four laning Railway Over Bridge, and the four laning of the project is to be carried out with the existing Right of Way and acquisition for additional land to be carried out for the insufficient Right of Way available all along the stretch, and also for service Road, Truck Lay Bye, Bus Bays and Toll Plaza, etc. Accordingly, the additional land required as per the design and drawing for the above captioned project with service roads in habitation areas are arrived in addition to the existing Right of Way. Based on the area arrived a notification under Section 3(A)(1) of the National Highways Act has been published in respect of the land involved for acquisition and notice was also issued to the land owners, the representative of the Appellant appeared before the Second Respondent and the Second Respondent, after hearing the Appellant's objection, rejected the objection on the ground that the Appellant's lands were very much required for implementation of the project considering the alignment and width of the existing road.

3.(a) It is further stated that the existing right of way available near the proposed Railway Over Bridge Location is between 33.40 m to 38.00 m. As per the approved drawing of Railway Over Bridge by the Chief Bridge Engineer, Southern Railway Vide Lr.No. W.352/J/196 dated on 27.11.2017, the width of the Railway Over Bridge is 25 meters without service road, side drain and utility corridor. The existing road on this location is sharp curve and having skew to the existing Railway line. Considering all those facts, the Railway Over Bridge was designed with 36 degree skew to the LC line with only permissible radius as per the codal provision. It is further submitted that the available Right of Way(ROW) is 33.40m, the requirement of proposed Right of Way (PROW) as per design and drawing of Railway Over Bridge with the service roads, Utility Corridor, Drain etc. is 42.00m. Since insufficient land available in this location, additional land acquisition has been proposed to be made on both sides of the road to carry out the Railway Over Bridge work as per the design and drawings. It is also stated that as per the proposed service road is only 5.50m width (i.e) an intermediate line + 1m side drain + 1.5 m utility corridor which are essentially required. The 1.50m utility corridor is being utilised for E.B. Cable, Siruvaani Water Pipelines and Telephone Cable etc., by other department which are very essential. Hence, it is only a minimum width of 5.50m has been provided for service road and not 9.25m width as alleged by the petitioner.

4. The Third Respondent also filed additional counter stating that originally the Highways Department of Tamilnadu, NH wing issued LOA to work for the project and thereafter, the project was transferred to National Highways Authority for implementation. As assessed by the NH wing of Highways Department, an extent of 2.348 ha. of land has to be acqired and to be handed over to the contractor. But on transfer of the above project to NHAI, NHAI has assessed the land requirement as 4.965 ha. instead of 2.348 ha. and thereafter, initiated fresh acquisition proceedings for acquiring the remaining land. The land sought to be acquired is mainly required for the construction of Service Road, Bus Bays, Toll Plaza, Utility Corridor etc., and there is no ulterior motive, mala fide intention or bias or favour in finalising the acquisition proceedings. The identification of lands and acquisition proceedings were made purely based on the requirements on the recommendation of the technical experts in the field of designing and constructing National Highways and the individual experts view given by the petitioner cannot be given importance.

5. We heard Mr.P.M. Duraiswamy, learned counsel appearing for the Appellant and Mr.Su.Srinivasan learned Standing Counsel appearing for the Respondents during the admission of this Appeal.

6. Learned Counsel for the Appellant submitted that though originally second respondent issued notice u/s.3G(3) of the National Highways Act for acquiring lands to an extent of 659 sq.mts. in Survey Nos.111/1A, 55/3B 2A, 55/3B 2B and 55/3B3 in Mullapadi Village, Kinathukadavau Taluk, Pollachi Road, Coimbatore District for widening four lane, building, maintenance, management and operation of the National Highways No.209, in the stretch of land from 123-550 km to 150-400 km. The lands proposed to be acquired are abutting to the road measuring 306.6 mtrs length and 2.51 Mts width. Though the Appellant was affected by such acquisition, in the larger public he accepted the acquisition proceedings and in the larger public interest and made claim for a sum of Rs.7,91,65,726/- as compensation. When the award proceedings are pending, once again, the Second Respondent issued another notification under Section 3A(1) of the National Highways Act for another extent of 491 Sq.mts in the above said Survey Numbers and invited objections. The Writ Petitioner filed their objections. Despite their objections dated 13.04.2018, Second Respondent passed the impugned order rejecting the objections of the Appellant.

7. According to the learned counsel for the Appellant, second notification is not permissible under law. Though the land is also available on the other side of the road, the acquisition made with mala fide intention without acquiring the vacant land. In fact, the Appellant were put into lot of hardship. The acquisition of the land would greatly affect the pipeline inside the campus, sewage and septic tanks in the premises. There is also discrimination towards the Appellant and second notification issued only at the instance of the contractor. Hence, submitted that the entire acquisition proceedings issued under the second notification for acquisition of an extent of 491 sq.mtr. is liable to be quashed.

8. It is not in dispute that earlier notification, the Appellant's lands have been acquired for the very same project viz., widening the National High Way. The above notification was not challenged by the Appellant. As per the original project the total requirement of land is 4.965 ha. The Highways Department of Government of Tamil Nadu originally initiated the land acquisition proceedings only for an extent of 3.4 ha. After verification of the design by the National Highway authorities and contractors further land was sought to be acquired. The very purpose of acquisition is for widening Highways, providing service roads, draining, and utility corridors. As per the IRC standard service road must be 7 meters. Whereas now the acquisition related to only 5.5 meters less than the IRC standard. Only the National Highways authorities and their experts have expertise in designing the project and also the extent which is required for such project. The counter affidavit filed by the Respondent clearly indicate that the project work has been designed by experts and there is no deviation. The Appellant alone is not targetted. There are various other land owners whose lands are also acquired. National Highway is widening the road from Coimbatore to Pollachi the entire stretch. Therefore, it cannot be contended by the Appellant that they alone are discriminated. Admittedly, objections were called for from the Appellant and the objection have been considered, thereafter orders have been passed. When the land sought to be acquired is an extent of only 491 sq.mtrs. i.e., 1.6 width of the Appellant's land are sought to be acquired for service roads. Lands are sought to be acquired for the purpose of service road with 5.50 mtr width and also EB cable, Siruvani water pipelines, cable etc., The Chief Bridge Engineer of Southern Railway has accepted the designs prepared by the experts.

9. It is well settled that the Court will not normally transgress into the field of policy decisions or the opinion of experts of the particular field. The Courts cannot make a rowing enquiry as to whether a particular public policy is wise and whether better public policy can be involved. In the absence of any mala fide or unreasonableness or unfairness, the decision of the authorities cannot be faulted at all. The Honourable Supreme Court in the case of Union of India vs. Kushala Shetty an

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d others reported in [2011] 12 SCC 69 held that National Highways Authority of India is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. In the absence of any arbitrariness on the part of the said authority, the Courts cannot interfere in the decision of NHAI, more so, when no error has been pointed out in the decision making process. Laying of roads, construction of service roads, corridor and other public utility the design which is to be prepared by the concerned experts and within their domain to carry forward for the public projects. Therefore, the Appellant cannot contend that there is a discrimination as other side of the lands have not been acquired. The Appellant being the company, they also have a social responsibility towards public projects. They cannot stall public project which is meant for benefitting larger public utility. We are of the view that the learned Single Judge has considered the entire aspect and dismissed the Writ Petition. We do not find any infirmity in the order passed by the learned Single Bench. The Writ Appeal deserves to be dismissed. 10. Accordingly, the Writ Appeal is dismissed. No costs. Consequently, connected C.M.P. is closed.