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Judgment
B.S. Patil, J.—In these writ petitions, petitioners are challenging the notifications dated 14.11.2007 and 05.11.2008 issued by the Union of
India, Ministry of Shipping, Road Transport and Highways u/s 3D of the National Highways Act, 1956 (hereinafter referred to as ''the Act'', for
short). Petitioners have also challenged the validity of the amendment brought to Section 2(1) of the Act and, have sought for striking down the
same as unconstitutional. Though by way of amendment, petitioners also sought for a declaration that Section 3A of the Act is unconstitutional
Counsel for the petitioners has submitted, during the course of arguments that this prayer is not pressed. Hence, it is unnecessary to examine the
constitutional validity of Section 3A of the Act.
Petitioner in W.P. No. 13047/2009 claims to be the purchaser of sites bearing Nos. 77 and 77/1 having khatha No. 204, New No. 779 carved
out of Sy. No. 31 admeasuring 2,919 sq. ft., situated at Krishnarajapuram village, under a registered sale deed dated 14.06.2006 from the original
owners Smt. Chethana S. Charan and Smt. S. Prameela.
Petitioners in W.P. No. 15175/2008 claim to be the purchasers of site bearing No. 101-A having khatha No. 565/A/101/A carved out of Sy.
No. 44 measuring 138 x 46 feet, situated at Battarahalli village under a registered sale deed dated 31.03.2003 from the original owner. Smt.
Puttamma.
Petitioner in W.P. No. 6302/2008 claims to be the owner of sites hearing Nos. 1 and 2 having khatha No. 180/47/1/2 carved out of Sy. No.
47/2 situated at Battarahalli village, having acquired the same under a partition deed dated 20.05.2002.
Petitioner in W.P. No. 4906/2009 claims to be the purchaser of site bearing No. 1B having khatha No. 565/44 carved out of Sy. No. 44
measuring east-west 70 feet, north-south 50 feet, situated at Battarahalli village under a registered sale deed dated 06.05.1999 from the original
owner Smt. Puttamma.
Petitioner in W.P. No. 15471/2009 claims to be the owner of site hearing No. 127 having khatha No. 698. House List No. 440 carved out of
Sy. No. 31 measuring east-west 65 feet, north-south 62 feet, situated at Krishnarajapura village, which was original acquired by his mother Smt.
K. Padmavathi under a registered sale deed dated 21.03.1983 from the original owner Smt. Varalakshmamma.
Respondent No. 1 has issued notifications dated 14.12.2006, 08.11.2007 and 14.12.2006 u/s 3A of the Act, proposing to acquire certain
lands including that of the petitioners for widening National Highway No. 4. Petitioners filed objections. Rejecting the objections, the respondent-
authorities issued notifications dated 14.11.2007 and 05.11.2008 u/s 31(1) and (2) of the Act notifying the lands as acquired. In the
circumstances, aggrieved by the notifications issued u/s 3A and 3D of the Act, petitioners have filed these writ petitions praying for the
aforementioned reliefs.
In order to appreciate the challenge made to the constitutional validity of the amendment to Section 2(1) of the Act as amended by Act. No. 16
of 1997 with effect from 24.01.1997, it is necessary to refer to the provisions of Section 2(1) of the Act as it stood before amendment. The said
provision to prior to amendment, read as under:
Section 2(1). Each of the highways specified to the Schedule ''except such parts thereof as are situated within any municipal area, is hereby
declared to be a national highway.
With effect from 24.01.1997, by the amendment Act No. 16 of 1997, the words ""except such parts thereof as are situated within any municipal
area"" as found in Section 2(1), have been deleted. In the result, those parts National Highways situated within municipalities, corporations and local
bodies or any other municipal areas could also be developed by the Central Government. Simultaneously, amendments are made to Sections 3 and
8 of the Act. The amendment Act No. 16 of 1997 deleted Section 8 of the Act, which provided for agreements to be entered into between the
Central and the State Governments or municipalities in respect of any municipal area in relation to the development or maintenance of the whole or
any part of a national highway situated within the State or the municipal area. Section 3A of the Act substituted by Act No. 16 of 1997, provides
for acquisition of land required for the building, maintenance, management or operation of a National Highway or part thereof. Section 3A(2)
requires that the notification issued proposing to acquire the land must give the brief description of the land. Section 3C provides for an opportunity
of being heard to be given to the owners and occupiers and Section 3D provides for issuance of notification acquiring the land, whereupon the land
vests in the Government.
Learned Senior Counsel Sri Vijay Shankar contends that there is repugnancy between Section 2(1) of the Act as amended by Amendment
Act No. 16 of 1997 and Article 243W read with Schedule XII inserted by the Constitution 74th Amendment Act 1992 with effect from
01.06.1993. His contention is Section 2(1) of the Act will have to be read down so that Sections 503A and 503B of the Karnataka Municipal
Corporations Act (hereinafter referred to as ''K.M.C. Act'', for short), are not rendered ineffective. In other words, his submission is that Section
2(1) of the Act impinges on Sections 503A and 503B of the K.M.C. Act, which are incorporated in the State law pursuant to the Constitution
74th Amendment Act. Elaborating this contention, Sri Vijay Shankar submits that the object of Article 243W is to vest municipalities with such
power and authority as is necessary to enable them to function as institutions of self-government for performing functions and implementing
schemes including chose in relation to matters listed in Schedule XII of the Constitution. Drawing the attention of the Court to Schedule XII
inserted by Section 4 of the Constitution 74th Amendment Act, 1992 with effect front 01.06.1993, he contends that Entry-I mentioned therein
pertains to urban planning including town planning and Entry-4 relates to roads and bridges. He submits that prior to the amendment of Section
2(1) of the Act, such parts of the areas situated in any municipal area were excepted from being declared as National Highways and the State
Legislatures could make laws under Entry 5 of List-11 with respect to local Government for the purpose of local self-Governments. Parliament
recognizing the power of the State legislature to endow the local self-Governments with the functions of laying and maintaining roads within their
territorial jurisdiction, had excluded such areas forming part of municipal areas from being declared as National Highways. By the present
amendment, an area within the territory of a municipal area is declared as part of a National Highway which results in denuding the local self-
Governments of their powers of laying and maintaining roads within their territorial jurisdiction as regards such parts of Highway. In this connection
itself, he further emphasizes the intention of the Parliament in enacting Section 8 as per the unamended provision in the Act which made provision
of entering into an agreement by the Central Government with the State and also the local self-Governments in the matter of maintaining such roads
which were part of the municipal area.
It is also contended that pursuant to the provision made under Article 243W of the Constitution, the K.M.C. Act has been amended by
Karnataka Act No. 35 of 1994 with effect from 01.06.1994 and provisions such as Section 503A providing for preparation of development plan,
and Section 503B providing for constitution of metropolitan planning committees, are introduced.
On the facts of the case, learned Senior Counsel would submit that the properties of the petitioners are not required for the purpose stated in
the notifications. He further contends that no description of the land is given in the impugned notifications which has resulted in depriving the owner
of full and fair opportunity to file objections to the proposed acquisition. In this connection, he has placed reliance on the judgment of the Apex
Court in the case of Competent Authority v. Bangalore Jute Factory and Ors. (2005) 3 SCC 477. Dealing with the objects of the Constitution
74th Amendment Act, learned Senior Counsel has placed reliance on the judgment in ILR 2006 (1) Kar 318 in the case of Commissioner, BDA v.
State of Karnataka.
Learned Senior Counsel appearing for the respondents Sri Uday Holla contends that the amendment made to Section 2(1) of the Act, does
not suffer from illegality or unconstitutionality. He refers to Entry-23 of List-I and Entry-42 of List-Ill of the Constitution, to contend that in respect
of National Highways, power to make legislation vests with the Centre and even power to acquire the land having been specifically mentioned in
Entry 42 of List-Ill, the power of central Legislature overrides the power of the States in this regard. Referring to Article 243W of the Constitution,
he contends that the provisions in this Article are made subject to the other provisions of the Constitution. He further submits that the development
plan, roads and bridges in respect whereof the municipalities can be endowed with powers, functions and responsibilities by the Stale Legislature
do not relate to National Highways and the State Government has not enacted any such law to clothe the municipalities and corporations with any
right over the parts of National Highways passing through them. He also contends that Article 243W of the Constitution is only an enabling
provision, whereby the State can endow by law, the municipality with such powers and authority as may be necessary for the municipalities to
function as of self-Government which may contain provisions to vest the municipalities with powers and responsibilities as specified in Schedule
XII. But, the State has not made any law by virtue of the said Article. In support of his contention, he relies on the judgment in the case of Shanti
G. Patel and Others Vs. State of Maharashtra and Others, .
He also points out that the doctrine of pith and substance has an important role to play while deciding the scope of each of the entries in the
three lists in Schedule-VII to the Constitution as per Article 246(1). The bottom line of which is to look at the legislation as a whole and if it has a
substantial connection with the entry, the matter may be taken to be legislation on the topic. This is why due weightage should be given to the
words ""with respect to"" in Article 246 as it brings in the doctrine of ""pith and substance"" for understanding the scope of legislative powers. He
refers to the decision of the Apex Court in the case of All India Federation of Tax Practitioners and Others Vs. Union of India (UOI) and Others,
(Para 43).
Placing reliance on the observations made by the Apex Court in para 15 of the judgment in the case of Association of Natural Gas and Others
Vs. Union of India (UOI) and Others, , he submits that although Parliament cannot legislate on any of the entries in the State List, it may do so
incidentally while essentially dealing with the subject coming within the purview of the entry in the Union List. Conversely, the State Legislature also
while making legislation may incidentally trench upon the subject covered in the Union List and such incidental encroachment in either event need
not make the legislation ultra vires the Constitution. The doctrine of pith and substance is invoked to find out the nature and content of the
legislation. If there is an irreconcilable conflict between the two legislations, the Central legislation shall prevail. However, every attempt should be
made to reconcile the conflict. Sri Holla invites the attention of the Court to the following decisions of the Apex Court to support his contention that
Central legislation enacted over the subject, matter within its competence has overriding effect over the State legislation covering the same field.
(i) H. Anraj and Others Vs. State of Maharashtra, (Para 4);
(ii) T. Barai Vs. Henry Ah Hoe and Another, (Para 15):
(iii) Zaverbhai Amaidas Vs. The State of Bombay, (Paras 7 & 10).
He has laid emphasis on the decisions of the Apex Court in the case of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, ;
The Central Bank of India Vs. Their Workmen, ; and Bhaiji Vs. Sub Divisional Officer, Thandla and Others, , to contend that the statement of
objections and reasons only explain the reasons that promoted for introducing the Bill in the house and they are not admissible for restricting or
controlling the plain meaning of the language employed in the legislation.
On facts, he submits that Annexure-A notifications state that there is a plan showing details of the properties which are notified for acquisition
and hence the requirement of brief description of the lands while issuing notifications is complied with. In this regard, he invites of the attention the
Court to paras 6 and 7 of the judgment in the case of Competent Authority v. Bangalore Jute Factory and Ors. (2005) 3 SCC 477.
Having heard the learned Counsel for the parties and upon careful consideration of the materials on record, it is seen that Entry-23 of List I of
Schedule VII pertains to ""Highway declared by or under law made by Parliament to be the national highways"". Entry-42 of List III pertains to
Acquisition and requisitioning of property"". As per Article 246(1), parliament has exclusive power to make laws with respect to any of the matters
enumerated in List-I of Schedule VII of the Constitution. As regards the matters enumerated in List-III, the Parliament and the State Legislatures
have power to make laws with respect to any of the matters enumerated in List-III, as is clear from Article 246(2). It is also clear and is well-
established that if there is any repugnancy between the law made by the Parliament and the State Legislatures, the Central law will prevail over the
Stale law to the extent of repugnancy. National Highways so declared by or under law made by the Parliament, being shown in Entry-23 of List-I,
the Parliament has exclusive power to make laws with respect to the same. An entry found in the list has to be given full and wide meaning.
Keeping in mind this principle, if Entry-23 is understood, it would mean that the Parliament has exclusive power to declare a Highway as a
National Highway. Since Entry-42 pertaining to acquisition and requisition of property is in List-III (concurrent list). Parliament and the State
Legislatures are together entitled to make legislation on the same. It is thus clear that acquisition of land for the purpose of National Highway,
declaration of Highway as National Highway and exercising any other legislative power over the same lies within the domain of Central Legislature
particularly because amending Act has Inserted Section 3A to 3D providing for acquisition of land for the National highway.
The National Highways Act was enacted to provide for declaration of certain Highways to be National highways and for matters connected
therewith. It declared in Section 2 that each of the highways specified in the Schedule except such parts thereof as are situated within any municipal
areas is hereby declared to be a national highway. Thus, it is clear that Act No. 48 of 1956 excluded such parts of the national highways as are
situated within any municipal area from the purview of national highway. The Central Government was authorised to declare any other highway to
be a national highway by issuing notification and as and when such notification was issued, such highway would be deemed to be specified in the
Schedule. This is clear from Sub-section (2) of Section 2 of Act No. 48 of 1956. Section 8 as enacted as per Act No. 48 of 1956 provided that
as regards such parts running through the municipal area, the development of highways by the Central Government could be undertaken by
entering into an agreement with any State Government or with any authority entrusted with the control or management of any municipal area.
By the amendment Act No. 16 of 1997, the Parliament has included such parts of highway passing through the municipal areas as national
highways, as the exclusionary clause is deleted. The resultant position is with effect from the date the amendment came into force, the National
Highways as specified in the Schedule to the Act encompass and include even such parts that passed through the municipal area. The contention of
the petitioner is that such inclusion of the parts of national highways passing through the municipal area impinges on the powers of municipal
authorities of the local bodies as endowed by the State Legislature under the provisions of the K.M.C. Act Investing them with the power to carry
out urban planning, town planning and development of roads and bridges within the area of their jurisdiction. Article 243W finds place in Part-IXA
in the Constitution of India, which is inserted by the Constitution (74th Amendment) Act, 1992 with effect from 01.06.1993. It reads as under:
243W. Powers, authority and responsibilities of Municipalities. Etc.-Subject to the provisions of this Constitution, the Legislature of a State may,
by law, endow.-
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-Government and such
law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified
therein, with respect to--
(i) the preparation o� plans for economic development and socialjustice:
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in
Schedule XII:
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them
including those in relation to the matters listed in Schedule XII.
It is clear from the provisions of Article 243W that the State Legislature is enabled to enact any law giving power and authority for preparing
plan for their economic development and for implementation of schemes including in relation to matters listed in Schedule-XII, such as urban
planning, town planning, roads and bridges, regulation of land use, construction of buildings etc. In fact, the State Legislature has enacted K.M.C.
Act, which already contains certain provisions in Sections 265, 266, 267 and 270 regarding construction of streets, maintenance thereof and allied
matters. Sections 503A and 503B of K.M.C. Act are introduced by way of amendment with effect from 01.06.1994 by Karnataka Act No. 35 of
1994. They speak about preparation of development plan and constitution of metropolitan planning committees, respectively. No doubt these two
provisions (Sections 503A and 503B of K.M.C. Act) are referable to the object contained in Article 243W which enables the State Legislature to
endow the municipalities with such powers. It is relevant to note that if such parts of the national highways passing through the municipal area is
taken out of the purview of the jurisdiction of the municipalities, then the concerned municipalities will be deprived of preparation of development
plan and carrying out development activities including construction of roads and bridges for such areas. But, this, by itself will not render the
amendment made to Section 2(1) by the National Highway Laws (Amendment) Act No. 16 of 1997, unconstitutional on the ground that it violates
the mandate of Article 243W of the Constitution. ''The opening sentence of Article 243W commences with the expression ""Subject to the
provisions of this Constitution"", the Legislature of a State may, by law, endow the Municipalities with such powers and authority.... It is, therefore,
clear that the power given to the Legislature of the State to make laws to endow the municipalities with powers and authority to prepare
development plan for urban area or for the town is made subject to the other provisions of the Constitution.
Article 246(1) confers exclusive power on the parliament to make laws in respect of matters enumerated in the Union List and Entry-23 of the
Union List deals with national highways. Therefore, if the parliament makes any law in exercise of its powers on subjects enumerated in the Union
List, Entry-23 in the instant case, its validity cannot be doubted only on the ground that it may incidentally encroach upon the field enumerated for
the State Legislature to make laws to clothe the municipalities with power to carry out development within the area of their jurisdiction. This is so
because Article 243W itself is made subject to other provisions of the Constitution which means Article 243W has to be read subject to Article
246(1) and Entry-23 of the Union List. Secondly, even assuming that Section 2(1) of the Act as amended by Amendment Act No. 16 of 1997
encroaches upon the field reserved by the State Legislature to make laws enabling the municipalities of local self-Government by carrying out
development activities within the area of their jurisdiction. Such encroachment is only incidental as the Central legislation made within its
competence would override State legislation covering the same field. Such incidental encroachment will not make the Central legislation i.e., the
Amendment Act No. 16 of 1997 ultra vires the Constitution. The doctrine of pith and substance can be usefully invoked to find out the nature and
content of the legislation. It can be said in respect of highways passing through the municipal areas declared as national highways, parliament has
got the power and therefore the power of the State Legislature to make laws enabling the municipalities to carry out planning and development is
subject to the provisions made by the Central Act with regard to National Highways. It is therefore not possible to hold that the amendment
brought about to Section 2(1) of the Act by the amending Act No. 16 of 1997 by deleting the words except such parts thereof as are situated
within any municipal area'' is unconstitutional as it impinges upon the powers of local self-governance that can be endowed upon the municipalities
by the State Legislature by virtue of Article 243W of the Constitution of India.
While enacting the Act, the Parliament has kept in mind the object that declaration of certain highways as national highways would help the
Central Government to exercise its powers regarding development and maintenance of these Highways, more effectively. Prior to the amendment,
parts of highways which were situated in municipal areas were excluded from declaration of national highways. However, provisions were made
for maintenance, development and management of such parts of the national highways by entering into agreement with the State Governments or
municipal authority. However, it can also be seen that provision for acquisition of land for such development of national highways was not made in
the Act prior to the Amendment Act No. 16 of 1997 and the land needed for national highways was required to be acquired under the provisions
of the Land Acquisition Act. After the amendment, Sections 3A to 3D provide for acquisition of land etc.
As rightly contended by respondent No. 3 in the statement of objections filed, as the management, maintenance and development of such parts
of national highways situated within the municipal areas presented certain difficulties, with a view to avoid confusion in the development of these
stretches of national highways passing through municipal areas in different States, Parliament in its wisdom has amended Section 2(1) of the Act
and simultaneously made provisions for acquisition of land for the purpose of national highways by amending Section 3 incorporating Section 3A to
3D. This measure, adopted to take over the control and management of parts of national highways for the purpose of development and
maintenance by declaring them as national highways is intended to ensure that the urban road links of national highways are maintained and
developed effectively and adequately and perhaps in an uniform manner. Further, by omitting Section 8 of the Act, the provision which was
hitherto available authorizing the Central Government to entrust to any State Government or any authority in control and management of the
municipal area, the duties and functions of development or maintenance of the national highway situated within the municipal area is done away
with.
Another important aspect which may arise in connection with the effect of deletion of the words, ''except such parts thereof as are situated
within any municipal area'', from Section 2(1) is whether parts of such highways which were within the municipal limits become national highways
without there being any need for further specification of these parts by amending the Schedule. If so, whether they become part of the national
highway with effect from the date of amendment or with effect from the date they are specified in the Schedule as national highway. This question
assumes importance as learned Senior Counsel appearing for the petitioners has contended that the Schedule being part of the enactment, unless
the Schedule is also amended, mere omission of the words, ""except such parts thereof as are situated within any municipal area"" from Section 2(1)
will not make such parts of the national highway already specified under the existing unamended provision as part of the national highway. Answer
to this question has several implications. For instance, as per Section 4 of the Act, all national highways shall vest in the Union, and for the
purposes of the Act, highways include, (i) all lands appurtenant thereto, whether demarcated or not; (ii) all bridges, culverts, tunnels, causeways,
carriage ways and other structures constructed on or across such highways; or (iii) all fences, trees, posts and boundary, furlong and milestones of
such highways or any land appurtenant to such highways.
A national highway when it approaches a municipal area may have the facility of a bypass constructed subsequently. Prior to such construction,
part of the said highway may have been bisecting the city or town and which part may continue to exist even after the bypass is constructed. Under
such circumstances, the question may arise as to whether this portion of bypass is part of the national highway or the portion which bisects the city
through the thickly populated region will be the national highway. In such circumstances, if one keeps in mind the object behind declaration of parts
of the highways that pass through the cities and other municipal areas which is for the purpose of ensuring that the urban road links of national
highways are maintained and developed effectively, adequately and perhaps uniformly and also the object behind Article 243W which is to clothe
the local bodies with the powers and responsibilities of local self-governance, interference with the powers and functions of the local bodies with
regard to town planning, construction of roads, bridges, etc., can be minimised by making it clear that wherever such bypasses are constructed, the
parts of the road which was hitherto bisecting the cities/towns will not continue to be part of such National Highway.
Insofar as the date of vesting of these highways is concerned, it is to be stated that from the date the portions passing through the municipal
area are included by amending provision of Section 2(1) of the Act, such highways shall vest in the Union as they are already specified in the
Schedule but by excluding portions passing through the municipal area. When the exclusion is removed, they get automatically included without
there being any further need or necessity to separately specify such portions pertaining to each municipal area. Such contention if accepted will
mean that separate notifications have to be issued by including such portions passing through municipal areas by the Central Government publishing
them in the Official Gazette. Such an exercise is absolutely uncalled for as the national highways as specified in the Schedule prior to the
amendment do not mention that in respect of each of the highways the parts passing through the municipal area are excluded from such highways.
Therefore, the moment the exclusionary clause is deleted, the inclusion automatically lakes place, subject however to the rider as already stated by
me, that in case there is construction of a new highway, be it a bypass or any other way to take the national highway out of the dense portion of the
city, then the matter has to be looked at in a different perspective. However, this situation is not presented in this case. The property, in the instant
case is sought to be acquired by the authorities so as to widen the existing national highway.
As regards the contention urged by the petitioner that notification issued as per Annexure-A does not even contain brief description of lands
and therefore it does not specify the requirement of law as contained under Sub-section (2) of Section 3A of the Act, it is seen from the impugned
notifications Annexure-A that the details of, the name of the district, taluk, village; survey number: type of land: nature of land: and area in square
metres proposed to be acquired are clearly mentioned. The notifications make it clear that ''the land plans and other details of the land covered
under this notification are available and can be inspected by the interested person at the aforesaid office of the Competent Authority (Ministry of
Shipping, Road Transport and Highways, Department of Road Transport and Highways). In the case of Competent Authority v. Bangalore Jute
Factory and Ors. (2005) 3 SCC 477, the notification acquiring the land contained the list of various portions of lands sought to be acquired. The
notification discloses that only part of bigger junk of land was being acquired. In those circumstances, absence of proper description of land, the
Court observed, made it impossible to file objections against the acquisition as the landowners would be unable to understand the impact of such
acquisition. The Apex Court held that where a statute requires a particular act to be done in a particular manner, the act has to be done in that
manner alone. Every word of the statute has to be given its due meaning. The Apex Court felt that the notification impugned in the said proceedings
failed to meet the statutory mandate as it was vague. However, in paras 6 and 7 of the said judgment, while dealing with the question of brief
description of the land in acquisition, the Apex Court took note of the fact that the notification did not make reference to any plan and the writ
petitioners therein had specifically pleaded that there was no plan. This was one of the reasons for the Apex Court to hold that the notification
issued proposing to acquire the land did not give brief description of the lands proposed to be acquired. But, in the instant cases, the notifications
refer to the fact that the land plans and other details of the land covered under the notifications were available and could be inspected by the
interested persons. In such circumstances, this contention of the petitioners, has no substance in law.
For the aforementioned reasons, these writ petitions being devoid of merit are dismissed. No costs.