Petitioners challenged land acquisition notifications for a highway deviation, alleging mala fides and procedural non-compliance. The Court held that the authorities acted bona fide for geometric improvements, found no mala fides, and dismissed the petition after ordering a temporary status quo.
Writ petition rejected; status quo maintained for six weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL 2022
BEFORE
THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.6862/2021 (LA RES)
BETWEEN :
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... PETITIONERS
(BY SRI. ANIL KUMAR SHETTY)
AND :
1 . UNION OF INDIA MINISTRY OF ROAD TRANSPORT AND HIGHWAYS TRANSPORT BHAWAN, 1 PARLIAMENT STREET NEW DELHI-110001 REPRESENTING BY ITS CHIEF SECRETARY
2 . THE SPECIAL LAND ACQUISITION OFFICER AND COMPETENT AUTHORITY THIRTHHALLI -UDUPI N H, PWD COMPOUND, K R CIRCLE BANGALORE-560 001
... RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, AAG A/W SRI. C.N.MAHADESHWARA, AGA FOR R1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION SECTION 3G NATIONAL HIGHWAYS ACT 1956 HAS BEEN PUBLISHED ON 01.01.2021 IN TIMES OF INDIA NEWS PAPER AT ANNEXURE-J UNDER
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NATIONAL HIGHWAY ACT 1956 SO FAR AS THE PROPOSED ALTERNATION IN PATH OF PROPOSED NATIONAL HIGHWAYS 169 A DEVIATING FROM EXISTING STATE HIGHWAYS PART AT 77TH KILOMETER IN KELA PARKALA IN THIRTHAHALLI - UDUPI IS CONCERNED.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
The petitioners, who are residents of Kela Parkala, Udupi Taluk and District and who own lands adjacent to National Highway 169A in this village, have impugned the notifications issued under the provisions of Sections 3A and 3D of the National Highways Act 1956 (for short, ‘the NH Act’ ). The petitioners contend that these notifications insofar as they provide for a deviation from the existing pathway on this National Highway 169A near their properties must be quashed.
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status quo as regards the petitioners’ lands on 05.04.2021, and this interim order is continued till this date. The second respondent – the Special Land Acquisition Officer, National Highways, PWD, Bangalore - has filed the application for vacating the interim order, but with the consent of the learned counsels for the parties, the petition is taken up for final disposal.
[i] The National Highway 169A was initially a District Main Road which is later notified as a State Highway and subsequently as a National Highway. The Building Line beyond the National Highway was marked way back in the year 2014, and notwithstanding the same while issuing the present impugned notifications, there is a deliberate deviation of the existing pathway
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near the petitioners’ properties [for short, ‘ the impugned Straightening’ ];
[ii] The petitioners, who rely upon certain undisputed factors to establish vested interest in notifying the impugned Straightening, can demonstrate malafides . The petitioners even otherwise, can demonstrate that the notification is not issued in compliance with the procedure contemplated under the provisions of the NH Act. Sri. Anil Kumar Shetty elaborates on these grounds as follows:
4. On malafides in notifying the impugned Straightening :
4.1 It is undisputed that a third party has commenced suit in O.S.No.476/2015 on the file of the Civil Judge, Udupi against the National Highway authorities. This plaintiff, as part of cause of action for this suit, has alleged that National Highway Authorities
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had issued notice stating that the plaintiff had commenced construction without necessary set back from the Building Line. The National Highway Authorities have filed written statement justifying such notice and thus these authorities have acknowledged the existing pathway and the associated Building Line. During the pendency of this suit, the plaintiff has completed a commercial building. If the National Highway is to be widened along this existing path, this plaintiff’s commercial property would have to be demolished, and to avoid this consequence the notifications are issued providing for the impugned Straightening affecting the petitioners’ properties. The malafides in exercise of power can be undeniably inferred and hence, the petitioners must succeed.
4.2 The purported reason for the impugned Straightening is to straighten a curve but it is indisputable that there are a number of curves along
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this National Highway which runs between Thirthahalli and Udupi via Agumbe. The respondents cannot dispute that there is another curve just about 200 metres from the petitioners’ properties. The authorities have not proposed straightening of these curves. Only a section of this Road [the impugned Straightening] cannot be identified for straightening. This further reinforces the petitioners’ case that the straightening of a curve as part of the National Highway is a ruse and is a decision to pick and choose to help a few, and is vitiated by malafides .
4.3 The Government has accorded approval on 10.07.2017 (Annexure-R2) for the impugned Straightening. However, the Consulting Agency engaged by the second respondent has submitted a revised drawing for the impugned Straightening as per sketch dated 02.09.2017 (Annexure-L). This is another
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circumstance that establishes malafides in notifying the impugned Straightening.
5. On non-compliance with the provisions of the NH Act :
5.1 A vague description of the properties notified for acquisition would not meet the requirement of Section 3A of the NH Act which contemplates that every notification under Section 3A(1) of the NH Act shall give a brief description of the lands proposed for acquisition. The description of the properties notified for widening is undeniably vague. If the description of the properties in the notification under Section 3A(1) is vague, as is in this case, the entire edifies of the acquisition proceedings would collapse as held by the Hon’ble Supreme Court in Competent Authority v. Barangore
Jute Factory and Ors1 .
1 (2005) 13 SCC 477
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5.2 If the notification under Section 3D of the
NH Act as regards the impugned Straightening is to prevail, the respondents, who in their statement of objections have perfunctorily stated that the petitioners’ objections have been considered and rejected but without furnishing any detail, will have to establish that an opportunity of hearing, as contemplated under Section 3C of the NH Act, is extended to the petitioner. This opportunity of hearing is mandatory before there could be issuance of notification under Section 3D of the NH Act. The respondents have not placed any material on record to establish that the petitioners are extended with due opportunity of hearing, a mandatory requirement and therefore, the petitioners must succeed in their challenge against the impugned Straightening.
5.3 The authorities under the NH Act are
empowered to undertake different tasks as mentioned under Section 3B of the NH Act which would include
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setting out boundaries, intended lines of marks and marking of levels and boundaries. The power in this regard must be exercised, as would be obvious from the provisions of Section 3B of the NH Act, only after notice under Section 3A(1) of the NH Act is issued. However, in the present case, the exercise in this regard is undertaken in the year 2014, which is borne out by the pleadings in the original suit. Notwithstanding the same once this jurisdiction is exercised, the authorities must adhere to the same. The authorities who have identified the boundary lines and the marks along the existing pathway in the year 2014 must adhere to the same.
counsel for the respondents, places on record a series of photographs to bolster his submission that the alignment work along the National Highway stretch is completed except the impugned Straightening, and this
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must receive due consideration given the purpose and object of the subject notifications. The photographs are taken on record, and are considered. Sri. Dhyan Chinnappa’s submissions are as mentioned hereafter.
7. On the grounds of colorable and arbitrary exercise of jurisdiction :
7.1 The State Highway was declared as a National Highway (Highway No.169A) in exercise of jurisdiction under Section 2(2) of the NH Act vide the notification dated 10.02.2014. The Building Lines may have been marked in 2014 immediately after the aforesaid notification dated 10.02.2014. The merits of the action taken by the authorities to ensure that Boundary Lines are adhered to by the corresponding owner i.e., the plaintiff in O.S.No.476/2015, must necessarily be considered in the light of the pleadings in that suit and the circumstances as they existed then. In any event those circumstances would be totally
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extraneous to the present proceedings which is begun for the first time with the issuance of notice under Section 3A(1) of the NH Act. The petitioner is not justified in either alleging either malafides or in alleging vested interests from the pleadings in the suit in O.S.No.476/2015.
7.2 The Ministry of Road Transport and Highway has accorded approval on 10.07.2017 for the proposed alignment, which includes the impugned Straightening. The alignment as approved by this order dated 10.07.2017 is being implemented with the current notification. It is only as a matter of executing the approved alignment, certain revisions are obtained by the consulting agency. The revisions, or working out the details, for execution cannot be relied upon to contend that the alignment is revisited to straighten the curve [the impugned Straightening] after the approval to accommodate any personal interest. In support of the
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submission that only the executing details are finalized after the approval on 10.07.2017, reliance is placed upon Annexure-R4 [ a sketch of the subject alignment When the existence of a curve is undisputed, there cannot be any inference of arbitrariness or colorable exercise in notifying the impugned Straightening.
8. On the grounds of non-compliance with the provisions of the NH Act :
8.1 The notification under Section 3A (1) of the NH Act clearly indicates that the land plans and the other details of the lands to be acquired are made available for inspection by any interested person or the officer of the competent authority. This availability of the plan and the details mentioned in the notification dated 26.08.2020 would satisfy the requirement of Section 3A (1) of the NH Act as these details and the details as mentioned in the notifications would clearly establish the identity of the properties. Therefore, the
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submissions that the notification under Section 3A (1) of the NH Act is vague and the proceedings, including the impugned notification must collapse insofar as the petitioners’ properties cannot be accepted.
Authority Vs. Barangore Kite Factory and Ors ( supra ) has opined that the notification was vague because the authorities in that case could not place on record a plan that was linked to the notification and the impugned notification itself do not refer to any plan. If the notification refers to a plan and it is made known that it is available for scrutiny, the acquisition proceedings cannot be called in question on the ground of vagueness. In this regard reliance is placed on paragraph No.9 of the Hon’ble Surpeme Court’s decision in Competent Authority Vs. Barangore Kite Factory and Ors (supra).
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9. The petitioners, except for a bald statement
in the Memorandum of Writ Petition that they have been denied an opportunity of hearing, have not even urged non-compliance with this requirement. In meeting the allegation as set out in the writ petition, statement of objections are filed averring that objections have been considered and rejected. The petitioners are not serious in their ground that the requirements of Section 3C of the NH Act have not been complied with. Therefore, this Court must not intervene with the acquisition proceedings even on this ground.
Whether this Court must interfere with the impugned notifications insofar the impugned Straightening either on the ground of malafides or for non-compliance with the provisions of Section 3A (1), 3B and 3C of the KH Act.
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jurisdiction [ malice in law ] is based on the assertion that the impugned Straightening is to accommodate the interest of another and to safeguard the property of such other. The petitioners assert that with the notification dated 10.02.2014 the authorities have identified the boundaries and Building Line. When such exercise was undertaken one of the property owners, who would have been affected if the existing alignment is continued, has filed a suit in O.S.No.476/2015 for permanent injunction. The Highway Authorities had opposed construction of a commercial building by the plaintiff without the necessary set back of 21 metres from the center of the National Highway insisting on the existing alignment. But, the impugned Straightening saves this property. It is argued on behalf of the petitioners that these circumstances, given the clandestine nature of the understanding that could be between the officers and
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the third party, must be sufficient to find in favour of the petitioners on the grounds of malafide exercise of jurisdiction.
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private interests and is not in the public interests. The photograph is as follows:
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revisions are borne out by Annexure-R4. Further, the undisputed fact that a curve on a National Highway is straightened is a strong vindication of public purpose. The question of malafides must be examined in the light of these circumstances.
“Malafides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in
2 (2013) 1 SCC 524
3 1992 Supp (1) SCC 222
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fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
The action taken must, therefore, be proved to have been made malafide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.”
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Indian Oil Corporation Ltd4 . which is as follows:
“It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is “very heavy”. (vide E.P. Royappa v. State of T.N. (1974) 4 SCC 3) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility.”
10.02.2014 declaring the State Highway as a National Highway (Highway No.169A) in exercise of jurisdiction under Section 2(2) of the NH Act have taken measures to identify Building Line and enforce the same [ including 4 (2005) 7 SCC 764
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contesting the suit ], and if the authorities have later approved certain changes in the approved alignment because of geometric improvements after necessary survey and DPR including technical persons, this Court cannot reasonably opine that there is malafides in notifying the impugned Straightening. The contention that only the impugned Straightening is selected and not the other curves, in the absence of necessary details, does not enable the petitioners discharge the higher burden of establishing malafides .
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the case on hand before the Hon’ble Supreme Court in Competent Authority v. Barangore Jute Factory and Ors ( supra ) where the authorities had not referred to any plan in the notification, and had failed to produce, even before the Court a copy of the plan that could be associated with the notification. The Hon’ble Supreme Court in this decision in paragraph No. 9 has observed
as:
“The availability of a Plan would have made all the difference. If there is a Plan, the area under acquisition becomes identifiable immediately. The question whether the impugned Notification meets the requirement of brief description of land under Section 3A(2) goes to the root of the matter. The High Court rightly observed : ".it is just not possible to proceed to determine the necessity of acquisition of a particular plot of land without preparation of a proper Plan." The Appendix to the impugned Notification shows that in many cases small parts of larger chunks of land have been notified for acquisition. This is not possible without preparing a Plan. But where is the Plan? The Notification in question makes no reference to
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any Plan. Our attention was drawn to averments in pleadings by Writ Petitioners and replies thereto of the acquiring authority. The Writ Petitioners have pleaded that there was no Plan. Replies are vague and by way of rolled up answers. There is no specific reply. It is obvious that there was no Plan and therefore none was referred to in pleadings nor any thing was produced before Court at the hearing.”
“ The power to take possession is only in accordance with 3E after determination of the award amounts and accounting of quantum by the Authority appointed under 3G and after the quantum is deposited in 3H. But the authorities are threatening to take possession by force. After compliance with 3D and 3H the authority is bound to serve notice for the delivery of the possession to the owners within 60 days which is admittedly no complied. The plantation and crop on subject lands are basis of livelihood of the Petitioners. Hence it is
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just and necessary to maintain status quo in respect of the subject properties of the petitioners pending consideration of the writ petition on merits.”
the second respondent have failed to consider the prevailing facts have not set out the details to make out a case and in the absence of the material to substantiate a ground as above, this Court cannot opine that there is any failure in extending the opportunity as contemplated under provisions of Section 3C of the NH Act. Therefore, the writ petition stands rejected. The authorities are directed to maintain status quo for a period of six [6] week from today so that the petitioners have a reasonable opportunity, if they are so advised, to pursue their further remedy.
SD/JUDGE
RB
3 issues framed by the court
Whether impugned notifications under the National Highways Act for straightening a highway curve are attended by mala fides.
Whether the petitions succeed on grounds of non-compliance with Sections 3A, 3B, and 3C of the National Highways Act 1956.
Whether the writ petition for quashing the land acquisition notification should be allowed.
Colour shows how this judgement treated each authority
Competent Authority v. Barangore Jute Factory and OrsDistinguished¶49
Competent Authority v. Barangore Jute Factory and Ors (2005) 13 SCC 477 · Who else cites this
Ratnagiri Gas & Power (P) Ltd. v. RDS Projects LtdFollowed¶91
Ratnagiri Gas & Power (P) Ltd., v. RDS Projects Ltd (2013) 1 SCC 524 · Who else cites this
State of Bihar v. P P SharmaExplained¶91
State of Bihar v. P P Sharma 1992 Supp (1) SCC 222 · Who else cites this
E.P. Royappa v. State of T.N.Explained¶99
E.P. Royappa v. State of T.N. (1974) 4 SCC 3 · Who else cites this
Ajit Kumar Nag v. Indian Oil Corporation LtdFollowed¶99
Ajit Kumar Nag v. Indian Oil Corporation Ltd (2005) 7 SCC 764 · Who else cites this
4 provisions across 2 enactments
RAMANANDA NAYAK S/O LATE KOGGA NAYAK
SHRINIVAS NAYAK S/O RAMAKRISHNA NAYAK
SADANANDA NAYAK S/O RAMAKRISHNA NAYAK
SADHU SHETTY S/O LATE GOWVARDHAN SHETTY
DAYANANDA SHETTIGAR S/O LATE NAGAPPA SHETTIGAR
MALATHI DEVI D/O LATE RANA KRISHNA NAYAK
B. M. SHYAM PRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
