KRISHNAVENI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has come forward with this writ petition praying for a Writ of Certiorarified Mandamus calling for the records of the respondents 1 to 4 in connection with the four laning of Salem Coimbatore section of NH-47 from K. M. 1. 60 to K. M. 53. 00 (package 1) on Annuity Basis titled proposed inter-change at Kondalampatti and to quash the altered plan in job No. C-622 (drawing No. DRG No. SCPLB/c-622/p1/rh/jn-02/rev) made therein and consequently to direct respondents 1 to 4 to adhere to the original scheme finalised and approved for the said work.

(2.) MR. T. R. Mani, learned Senior counsel appearing for the petitioners submitted as follows:- The petitioners 1 to 5 are co-owners of the lands to an extent of (i) 18454 sq. ft. , in Survey No. 96/2a, Kandampatti/pallapatti Village, salem West (ii) 11546 sq. ft. , in Survey No. 39/1a, Annadhanapatti Village, Salem east and (iii) 5022 sq. ft. , in Survey No. 39/1a, Annadhanapatti Village, Salem east, measuring in all 35,022 sq. ft. , which are located abutting NH-47 of salem. The petitioners 1 to 5 have leased out the above said item Nos. (i) and (ii) of the properties to the 5th respondent/corporation under a registered lease deed dated 10. 03. 2004 for the purpose erecting petrol filling stations for a period of 30 years. The 6th petitioner was a dealer/licensee of the 5th respondent corporation, who has taken on lease the item No. (iii) mentioned above under a registered lease deed dated 20. 08. 2004 to construct a motel as required by the 5th respondent/corporation. The 5th respondent/corporation has also applied through the fourth respondent for issuance of No Objection certificate for laying approach road for access to the retail outlet exactly at kilometer 203. 727 to kilometer 203. 776 in the Bangalore-Salem-Madurai Section of NH-7. Under proceedings dated 08. 03. 2004, the fourth respondent recommended to the third respondent to grant No Objection Certificate and the proposal forwarded by the fourth respondent was returned by the third respondent by his proceedings dated 30. 06. 2004 pointing out certain technical error in the proposal, hence, the 5th respondent re-submitted the proposal and thereafter, the proposal for issuance of No Objection Certificate for laying the approach road was forwarded by the fourth respondent on 17. 08. 2004. The fourth respondent again re-commended for issuance of No Objection Certificate. The fourth respondent, by his proceedings dated 10. 03. 2005 addressed to the 5th respondent/corporation has stated that the proposal for laying approach road could not be considered by the second respondent as the same is deficient on a few technical counts and as the proposal interferes with the four laning of nh-47, location of the outlet needs to be reviewed. Non-consideration of the application for No Objection Certificate for forming of access road on the ground that the same would interfere with the four laning of NH-47 is wholly unjustified since four laning has already been finalised by the respondents 1 to 4 and the proposed access road no way interferes with the four laning so finalised, which is evident from the proceedings of the District magistrate-cum-District Revenue Officer dated 15. 04. 2004. The proposal for connecting NH-47 and NH7 has already been finalised and in the draft plan, the ramp road connecting NH-47 and NH7 was to be constructed behind the petroleum retail outlet of the 5th respondent corporation operated by the 6th petitioner. Much later, after the proposal for construction of the access road for the petroleum outlet had been recommended by the fourth respondent, a new plan has come to be prepared at the instance of certain vested interests namely 6th and 7th respondents. Under the altered plan, the proposed ramp road is to pass through the front side of the retail outlet facing NH-7 instead of at the rear. There is no need or justification for alteration of the original draft plan and in fact none is disclosed. The respondents 6 and 7 are politically well connected and at their bidding, the duly approved and finalised plan has been altered. The draft plan has been altered hurriedly which is evident from the fact that though the original plan was finalised after conducting necessary soil testing, water table testing and other required formalities, the alteration has now been proposed even without undertaking any of these tests. The procedure adopted is wholly arbitrary and whimsical and the respondents 1 to 4 ought not to be allowed to abdicate their duties and responsibilities with a view to please any vested interests, more so, when substantial public funds are to be invested in the project. The petitioners are seriously prejudiced by the second plan to re-locate the ramp between the national highway and the petroleum outlet. The averment that the petition is not maintainable as no notice under section 3-A of National Highways Act, 1956 has been issued is unsustainable since the respondents 1 to 4 have altered the plan and are proceeding with the execution of the work and a feeble attempt is made to justify the alteration, which is vitiated by malafide and colourable exercise of power only to favour the respondents 6 and 7. When colourable exercise of power is under challenge in the present writ petition and the proposal for 3-A notification has been finalised, certainly the writ petition is maintainable. The averment that considering technical feasibility, economic viability, social and environmental issues, the consultants have proposed the alternative arrangement by shifting the location slightly towards South considering the techno-economic, social and environmental consideration avoiding junctions with existing roads and hillocks posing gradient problems, huge costs towards rock cutting, settlements of economically weaker sections and the greenery of the hillock are false. The business house of the 6th respondent in the concerned locality is Cauvery Stone impact Private Limited, which name is also displayed in the factory, but the respondents 1 to 4 referred it as Gem Granite in the alternative plan. Erection of the pillars on the rock will be advantageous and would cost much less than digging the earth for laying foundation with concrete pillars. The averment that alteration is made to protect the economically weaker section is far from truth. The so-called economically weaker sections are encroachers of poromboke lands, who have put up pucca construction with RCC tiled roofs, which is disclosed in the plan itself. Poromboke lands are ironically left out solely with a view to serve the vested interests. The petroleum pump/hsd pump of the 6th petitioner has been commenced after complying with all the formalities and prayed for quashing of the impugned order.

(3.) IN support of this contention, the learned Assistant solicitor General appearing for the respondents 1 to 4, relied on the below mentioned decisions:- i) (Dr. J. N. Banavalikar v. Municipal Corpn. of Delhi and another) 1995 Supp (4) SCC 89 wherein inpara No. 21, it was held thus:- 21. IN the facts and circumstances of this appeal, it is not possible to hold that the impugned action in removing the appellant and appointing Dr Patnaik is unfair or unjust or irrational or arbitrary or tainted with any mala fide intention. The contention of the appellant that in order to accommodate a junior doctor as Medical Superintendent in I. D. Hospital, Dr patnaik had been moved out from the said hospital to replace the appellant as medical Superintendent of RBTB Hospital, is not only vague but lacks in particulars forming the foundation of such contention. Further, in the absence of impleadment of the junior doctor who is alleged to have been favoured by the course of action leading to removal of the appellant and the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i. e. "malice in fact" should not be countenanced by the court. This appeal therefore, fails and is dismissed without any order as to costs. ii) (Union of INdia and another v. Ashutosh Kumar srivastava and another) (2002) 1 SCC 188 wherein in Para No. 7, it was held thus:- 7. IN the first place, the Tribunal should have given a definite finding as to whether Shri Sanjai Mittal was related to Respondent 2 or not and, if that ground failed, it should not have allowed Respondent 1 to change his stance that somehow and in some other manner Shri Sanjai Mittal is connected with Respondent 2. The Tribunal should not have proceeded on line proving the moral indicated in one of Aesop"s Fables of the lamb and the wolf when the complaint was that the stream was being polluted by the l amb and if not by it, by any of its forefathers. The approach of the Tribunal in this regard is by no reason good enough to chastise the said Respondent 2 and condemn the proceedings conducted not only by him but other officers who are of equivalent rank. There is always a presumption in favour of administration that it exercises powers in good faith and for public benefit. The burden is on the individual to produce sufficient material to suggest of the mala fides of the authority concerned and it is not easy to discharge the same. iii) (Delhi Development Authority and another v. UEE electricals Engg. (P) Ltd. , and another) (2004) 11 SCC 213 wherein in Para-11 and 12, it was held thus: "11. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality" and the third "procedural impropriety'. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935 (commonly known as CCSU case ). 12. Courts are slow to interfere in matters relating to administrative functions unless decision is tainted by any vulnerability such as lack of fairness in procedure, illegality and irrationality. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. " iv) (Syed T. A. Naqshbandi and others v. State of J&k and others) (2003) 9 SCC 592 wherein in Para-7 it was held thus:- "7. . . . . . As has often been reiterated by this court, judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions of administration of justice with which we are concerned in this case, by going into the correctness as such of ACRs or the assessment made by the Committee and approval accorded by the Full Court of the High Court. " v) (Union of INdia and another v. INternational Trading co. , and another) (2003) 5 SCC 437 wherein in Para No. 12, it was held thus:- "12. Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. INdisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. IN that context, it cannot be said that the respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been a mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible. vi) (National Buildings Construction Corpn. v. S. Raghunathan) (1998) 7 SCC 66 wherein in Para Nos. 20 and 21, it was held thus:- "20. Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service1985 AC 374 laid down that the doctrine of "legitimate expectation" can be invoked if the decision which is challenged in the court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn. 21. The INdian scenario in the field of "legitimate expectation" is not different. IN fact, this Court, in several of its decisions, has explained the doctrine in no uncertain terms. " vii) (P. T. R. Exports (Madras) (P) Ltd. v. Union of INdia) (1996) 5 SCC 268 wherein in Para Nos. 3 and 5, it was held thus:- "3. . . . . The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. IN matters of economic policy, it is a settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies. 5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. . . . . " viii) (Bannari Amman Sugars Ltd. v. Commercial Tax officer and others) (2005) 1 SCC 625 wherein in Para No. 19, it was held thus:- "19. IN order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the court. " ix) (Chief Conservator of Forests, Government of A. P. v. Collector and others) (2003) 3 SCC 472 wherein it was held in Para Nos. 14 thus:- "14. . . . . . . It is neither appropriate nor permissible for two departments of a State or the Union of INdia to fight litigation in a court of law. INdeed, such a course cannot but be detrimental to the public interest as it also entails avoidable wastage of public money and time. Various departments of the Government are its limbs and, therefore, they must act in coordination and not in confrontation. Filing of a writ petition by one department against the other by invoking the extraordinary jurisdiction of the High Court is not only against the propriety and polity as it smacks of indiscipline but is also contrary to the basic concept of law which requires that for suing or being sued, there must be either a natural or a juristic person. . . . . . " x) (Union of INdia and others v. Godfrey Philips INdia ltd. ,) (1985) 4 SCC 369 wherein in Para-13 it was held thus:- "13. . . . . . We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in motilal Sugar Mills case 3 and we find ourselves wholly in agreement with what has been said in that decision on this point. " xi) (Ramniklal N. Bhutta and another v. State of maharashtra and others) (1997) 1 SCC 134 wherein in Para No. 10 it was held thus:- 10. . . . . . Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice an d not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis- is the private interest while exercising the power under Article 226 " indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings. " xii) (MD, U. P. Land Development Corpn. and another v. Amar Singh and others) (2003) 5 SCC 388 wherein in Para No. 9, it was held thus:- "9. . . . . . The internal note and order of the corporation, which is made the basis for the claim that twenty-five posts were available on a regular basis, is itself not correct. At this stage we may observe that the internal note and order dated 2-11-1990 was prepared by the director of the Corporation for his own purpose, but strangely enough a copy of the same was produced by the respondents in the writ petition. We fail to understand how the copy of this internal note and order came into the hands of the respondents. Apart from the fact whether such an internal note itself could give any right to the respondents, the very reading of the same does not give an impression that it is indicated to create twenty-five posts on a regular basis. . . . . "