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2003 DIGILAW 118 (CAL)

Swapan Kumar Ghosh v. Union of India

2003-03-13

AMITAVA LALA

body2003
Judgment The Central Government launched a project which is commonly known as 'Golden Quadrilateral Project' (hereinafter called as the 'said project') by which the four major cosmopolitan cities of the country i.e. Kolkata, Delhi, Chennai and Mumbai amongst others are wanted to be joined by the highly sophisticated wide roads of international level for faster movement of the transport from one place to another. This has been visualized on the basis of the submissions made by the different parties as well as by taking judicial notice in respect of various aspects of the matter. It is an admitted position that no one amongst the contesting parties is against the basic requirement of construction' of such sophisticated roads but against the decision making process of constructing bypass in two places i.e. 'Budbud and 'Shaktigarh' in the 'Panagarh to Palsit' stretch of the existing Grand Trunk Road (hereinafter called as G.T. Road) being National Highway 2 under the schedule of the National Highways Act, 1956. 2. According to two sets of petitioners, either of this writ petition or of the writ petition being W.P. No. 11778 (W) of 2002, directed to be heard analogously, when an existing National Highway from Delhi to Kolkata available such road is to be rebuilt or reconstructed for the purpose of fulfilment of the requirement of the Project. It is an admitted position that the width of the G.T. Road is 150 feet but encroachers have encroached half of the width. The National Highway Authority took a decision that bypass is to be built up in the aforesaid two strips of the stretch of the road to expedite the project and to avoid the litigations with the encroachers. As a result whereof the Central Government acquired various fertile cultivable lands and handed over to the National Highway Authority for making bypass. The petitioners of both the writ petitions are either farmers or owners of the homestead lands etc., being aggrieved, invoked the writ jurisdiction of the Court challenging the respective orders and/or notifications of the Union of India as well as National Highways Authority. 3. The petitioners of both the writ petitions are either farmers or owners of the homestead lands etc., being aggrieved, invoked the writ jurisdiction of the Court challenging the respective orders and/or notifications of the Union of India as well as National Highways Authority. 3. So far as the present writ petition is concerned, the petitioners have challenged a notification under Section 3A(1) of the National Highways Act, 1956 dated 13th December, 2002 which has been issued by the Central Government upon being satisfied that for the public purpose of four laning (i.e. building), the lands, the brief description of which has been given in the Schedule therein, are required for Shaktigarh Bypass of National Highways No. 2 in the stretch from 517.000 k.m. to 581.457 k.m. (Panagarh to Palsit section) in the State of West Bengal and thereby declared its intention to acquire such lands for the aforesaid purpose. In the said notification 21 days time was prescribed from the date of publication of notification to raise objection on the use of the land for the aforesaid purpose under sub-section (1) of Section 3C of the Act. The objectors were given opportunity therein to be heard either in person or by a legal practitioner and after hearing all the objections and making further inquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. It was also notified therein that any order made by the Competent Authority under sub-section (2) of the Section 3C of the said Act shall be final. This writ petition has been made on 22nd January, 2003 challenging the validity of such notification in view of the existing judgment delivered by Justice Asok Kumar Ganguly on 6th February, 2002 reported in 2002 (2) CHN 371 (Sk. Liakat Ali & Anr. v. Union of India & Ors.). In the said judgment the Court, upon going through various maps prepared by the Settlement Officer under the authority of Government of India in 1940-47 vide Notification No. 5074 dated 6th April, 1940 under Section 3 of the Bengal Survey Act and also Notification No. 5075 dated 6th May, 1940 under Section 101(2)(d) of Bengal Tenancy Act came to a conclusion that the stretch of original G.T. Road is not less than 150 feet. It was further held that this Highway being National Highway under Section 4 of the Act would be included hereunder :- "(i) all lands appurtenant thereto, whether demarcated or not; (ii) all bridges, culverts, tunnels, causeways, carriageways and other structures, constructed on or across such highways; and (iii) all fences, tress, posts, and boundary, furlong and mile stones of such highways or any land appurtenant to such highways." 4. It was also held that the National Highways Act, 1956 contemplates acquisition proceeding in respect of land not vested to the Union of India. The vesting in free from all encumbrances. Therefore, 150 feet width of the original G.T. Road has already been vested to the Government of India along with the land appurtenant thereto as mentioned above. If any structure stands therein the same is an encroachment on that vested land. No acquisition proceeding under Section 3A of the Act is necessary for removing that structure. The Government is not supposed to acquire the property which has vested in it. Ultimately it was held that the petitioners have no right to continue to encroach the public highway and since the encroachment admittedly falls, within 150 feet width of G.T. Road which is its normal width apart from the land appurtenant thereto, no relief can be granted in favour of the petitioners therein and thereby the writ petition was dismissed and interim order was vacated. 5. It was submitted by the learned Counsels appearing for the parties that no appeal was preferred from such order and the encroachers were drived out from such locality by giving effect of the order. Therefore, a question will obviously arise why the encroachers should not be removed from two similar places i.e. 'Budbud' and 'Panagarh' under the same stretch of road in the similar way. Making of bypass is highly cost oriented project which ultimately affect public exchequer and by now or in future it will be recovered by imposition of tax or fees from the general public. Therefore, monetary compensation is not the question but the public purpose. Although Mr. Pratap Chatterjee, learned Senior Counsel appearing for the National Highways Authority, avoided to give answer about the monetary involvement, but Mr. Asok De, learned Senior Counsel appearing for the petitioners, contended before this Court that the involvement of compensation is about Rupees four hundred (400) crores. Therefore, monetary compensation is not the question but the public purpose. Although Mr. Pratap Chatterjee, learned Senior Counsel appearing for the National Highways Authority, avoided to give answer about the monetary involvement, but Mr. Asok De, learned Senior Counsel appearing for the petitioners, contended before this Court that the involvement of compensation is about Rupees four hundred (400) crores. In absence of any submission on the part of National Highways Authority I have to presume such submission is correct be it little more or little less. 6. The project is made for 'Panagarh-Palsit' stretch of the road and most of the fertile lands of cultivation of West Bengal are situated within such locality of the District: Burdwan. Therefore, whenever a decision in respect of any strip of the particular stretch of road is to be taken a uniform principle will have to be made applicable particularly when a judgment of this Court is covering the filed. It might be said that some people of the locality called 'Galsi' have made such writ petition for such area but, it is to be remembered that the area falls within the stretch in between the places called 'Budbud' and 'Shaktigarh'. The applicability of the judgment is specific in respect of the width of Grand Trunk (G.T.) Road and removal of encroachers which cannot be restricted to the area called 'Galsi' only. There cannot be two different mode for different strips within the same stretch of the existing Highways otherwise it will be reflected as discrimination in between the people of two places. This stretch of National Highway is well known to the people traveling from Delhi to Kolkata by road or vice versa, therefore, the Court can take judicial notice about every nook and corner of the road. 7. So far as the other writ petition is concerned, there I find the notification under Section 3A (1) of the Act was published. Thereafter, notice under Section 3C (2) was issued. Lastly, further notification under Section 3D (2) was published. The petitioners challenged the entire proceedings and obtained an interim order from a Bench of this Court in an earlier occasion. Mr. Thereafter, notice under Section 3C (2) was issued. Lastly, further notification under Section 3D (2) was published. The petitioners challenged the entire proceedings and obtained an interim order from a Bench of this Court in an earlier occasion. Mr. Kalyan Bandyopadhayay, learned Counsel, appearing for the petitioners of that writ petition contended that when Justice Asok Kumar Ganguly delivered the judgment in respect of the strip of National Highway within the stretch at 'Galsi' why in the 'Budbud' strip being adjacent to such place, a different mode of action or making bypass would be adopted is unknown to them. 8. When I go through the notifications, I find that the first notification has been issued for the purpose of expansion of the road at Budbud within the stretch between 'Panagarh' and "Pcilsit'. But, when I go through the notice under Section 3C (2), I find that the question of bypass has been inserted in respect of the self-same L.A. Case No. 01 (NH)/2001-2002. Again when I see final publication of notification under Section 3D (2) of the Act, I find the same had been made for the purpose of widening the stretch of land at 'Budbud' in between 'Panagarh' and 'Palsit'. Therefore, the public notices under Sections 3A and 3D were made for widening the road but notice under Section 3C had been issued upon the petitioners privately incorporating the ground of making bypass when there is no scope of such notice under Section 3C of the Act. It may be said that for the purpose of widening the road a bypass is needed. Therefore, if it is additional then the same is to be done additionally with the removal of encroachers from the occupied are of the road. The notification in the garb of widening the strip of road cannot be the notification for making bypass. Making of the bypass is not an ordinary bypass in addition to widening the road but an alternative mode of constructing the road. Therefore, a specific notification to such extent has to be issued. The ratio of the judgment reported in 2002 (2) CHN 371 (supra) says that for the purpose of widening the road upto 150 feet width and land appurtenant thereto is already available for the National Highways Authority. Therefore, a specific notification to such extent has to be issued. The ratio of the judgment reported in 2002 (2) CHN 371 (supra) says that for the purpose of widening the road upto 150 feet width and land appurtenant thereto is already available for the National Highways Authority. Therefore, the necessary implication is the authority concerned is empowered to remove the encroachers for the purpose of fulfilment of the cause by its own men and machinery without the process of acquisition of land. Hence process of removal of encroachers will have to be adopted at first. The notification is specific and the judgment is clear. So far the practicability is concerned I can take the judicial notice that there is no difference in between the two strips of G.T. Road i.e. 'Galsi' and 'Budbud' within the stretch between 'Panagarh' and 'Palsit'. For the purpose of true appreciation copy of a road map prepared by the authority is made a part and parcel of the record. 9. In the 'Panagarh'-'Palsit' stretch, the most populated area is Burdwan town where bypass already exists much prior to making of the scheme. Leaving aside Burdwan town, the 'Panagarh' is second thickly populated area. Even thereafter no hindrance was there for widening the G.T. Road for expansion for making wider National Highway. The place called 'Budbud' standing in between the places called 'Panagarh' and 'Galsi' and much less populated than 'Panagrah'. In fact such area is outskirt of 'Panagarh'. There is no intervening railway route or level crossing exists in between places called 'Budbud' and 'Galsi'. On the contrary, railway crossing intercepted the places called 'Panagarh' and Budbud'. Even thereafter strip of the road at 'Panagarh' was stretched by removing the encroachers but not at 'Budbud'. Line of road in between the places called 'Galsi' and 'Budbud' is almost straight which can be visualized with open eyes as well as from the map. Even thereafter encroachers can be driven out from 'Galsi' as per the judgment and order of this Court as referred before but not from 'Budbud'. Why? True reflection of the notifications is widening the road from the aforesaid reasons. A bypass may be necessary for alternative or additional purpose. The alternative purpose is to be considered when existing condition cannot be restored at all. But the additional purpose will be considered when it is necessary in addition to primary requirement. Why? True reflection of the notifications is widening the road from the aforesaid reasons. A bypass may be necessary for alternative or additional purpose. The alternative purpose is to be considered when existing condition cannot be restored at all. But the additional purpose will be considered when it is necessary in addition to primary requirement. Therefore, the primary requirement is to be fulfilled by removing the encroachers otherwise element of giving premium to illegal act of the encroachers in encroaching the original width of G.T. Road etc. cannot be ruled out. It will not be out of place to mention from our common experience that once our mind set will be fixed for making bypass we shall be reluctant to remove encroachers when existing National Highway will become encroachers' paradise. 10. In view of the circumstances, I do not find any reason of making bypass or giving effect of making it now without driving out the encroachers from the existing G.T. Road i.e. the National Highway No. 2. True import of conjoint reading of the notifications is widening the road by the Authority by driving out the encroachers, review the situation and then take appropriate steps, for additional or alternative purpose in accordance with law. However, all such steps will be taken as early as possible upon considering the national importance. 11. Coming back to the writ petition made for the construction of 'Shaktigarh' bypass within the stretch of 'Panagarh-Palsit' I have to say that stages of Section 3C and Section 3D have hot yet been reached. Therefore, there is a scope of considering the objections of the objectors. Under the notification, the petitioners were called upon to put their objections but they did not choose to do so and directly applied for intervention of the Writ Court. Mr. De argued before this Court that it is not necessary that all determinations will be made by the authority and thereafter only the jurisdiction of the writ Court will be invoked for the purpose of judicial review. It can be made at any stage when an element of judicial review is available. Mr. De further contended that when a judgment of this Court is already covering the field for the purpose of removal of encroachers from the existing stretch of National Highway, the additional or alternative purpose of making bypass can be accepted subject to implementation of the same. Mr. De further contended that when a judgment of this Court is already covering the field for the purpose of removal of encroachers from the existing stretch of National Highway, the additional or alternative purpose of making bypass can be accepted subject to implementation of the same. Driving out programme of the encroachers from the existing National Highway, i.e. G.T. Road, if not accepted at this stage it will be premium to the illegality. According to him, Section 3A prescribes for satisfaction of the Central Government that a public purpose of the land is required but the Central Government has not made any statement nor prpduced any record for the purpose of satisfaction of the Court. They are simply relying upon the arguments put forward by the learned Counsel appearing for the National Highways Authority. Therefore, the stand of the Central Government is not a fair stand. Although Mr. Amit Prokash Lahiri, learned Counsel appearing for Union of India was not present on the final date of hearing of such important matter but, Mrs. Archana learned Counsel, appearing for the Central Government in another matter submitted before this Court that the Central Government has hardly anything to do except issuance of notice requiring the land and hand it over to the National Highways Authority. 12. I have carefully taken note of various provisions of the National Highways Act, 1956 as well as the National Highways Authority of India, 1988. Some of the provisions are very important for the purpose of coming to an appropriate conclusion. As per Section 3J of the National Highways Act, 1956 nothing of the Land Acquisition Act, 1894 shall apply to an acquisition under this Act. Under Section 3A, land will be said to be required with an intention to acquire. Under Section 3B the survey will be made. Under Section 3C hearing of the objections will be made. Under Section 3D, there should be a declaration of acquisition. Under Section 3E, there is a power of taking possession. Under Section 3F, right to enter into the land is to be made. The determination of amount is to be made under Section 3G and so on. If such sections are read with powers of the National Highways Authority of India Act, 1988 various aspects can be clarified. Under Section 3E, there is a power of taking possession. Under Section 3F, right to enter into the land is to be made. The determination of amount is to be made under Section 3G and so on. If such sections are read with powers of the National Highways Authority of India Act, 1988 various aspects can be clarified. But it appears from Section 5 of the National Highways Act, 1956 that the responsibility to develop and maintain the National Highways lie with the Central, Government. The National Highways Authority is nothing but an instrumentality of the Government of India and the parent act was introduced in 1956. However, the National Highways Authority of India Act, 1988 was formed and the National Highways Authority of India was entrusted with power or development, maintenance and management of the National Highways on behalf of the Central Government. The National Highways Authority is nothing but an instrumentality of the Government of India and the parent act was introduced in 1956. However, the National Highways Authority of India Act, 1988 was formed and the National Highways Authority of India was entrusted with power or development, maintenance and management of the National Highways on behalf of the Central Government. The functions of the Authority as per Section 16(2) of the Act, 1988 are as follows:- (a) survey, develop, maintain and manage highways vested in, or entrusted to it; (b) construct offices or workshops and establish and maintain hotels, motels, restaurants and rest-rooms at or near the highways vested in, or entrusted to it; (c) construct residential buildings and townships for its employee; (d) regulate and control the plying of vehicles on the highways vested in, or entrusted to, it for the proper management thereof; (e) develop and provide consultancy and construction services in India and abroad and carry on research activities in relation to the development, maintenance and management of highways or any facilities thereat; (f) provide such facilities and amenities for the users of the highways vested in, or entrusted to, it as are, in the opinion of the authority, necessary for the smooth flow of traffic on such highways; (g) form one or more companies under the Companies Act, 1956 (1 of 1956) to further the efficient discharge of the functions imposed on it by this Act; (h) engage, or entrust any of its functions to, any person on such terms and conditions as may be prescribed; (i) advise the Central Government on matters relating to highways; (j) assist, on such terms and conditions as maybe mutually agreed upon, any State Government in the formulation and implementation of schemes for highway development; (k) collect fees on behalf of the Central Government for services or benefits rendered under Section 7 of the National Highways Act, 1956 (48 of 1956), as amended from time to time and such other fees on behalf of the State Government on such terms and conditions as may be specified by such State Governments, and (l) take all such steps as may be necessary or convenient for, or may be incidental to, the exercise of any power or the discharge of any functions conferred or imposed on it by this Act. 13. The important aspect of the Act, 1988 is Section 10 of the same. 13. The important aspect of the Act, 1988 is Section 10 of the same. Section 10 says that in the discharge of the functions under this Act, the Authority shall act, so far as may be, on business principles. Therefore, question remains what would be the business principles here? 14. There is a big difference of business principles in public law and in private law. In a private law contractual obligations are to be considered as business principles. But, in the public law field fairness, reasonableness and non-arbitrariness and non-discrimination being constitutional mandate are to be placed before so-called business principles. If the 'business principles' are to be construed only giving high rate of compensation to few persons but recover such amount by imposition high rate of tax or fees upon the people at large, no public purpose can be said to be the 'business principles'. The true import of the 'business principles' is more beneficial work at a lesser cost and not to enrich the agency. The 'business principles' as interpreted appears to be legal sanction to the agencies to do whatever like to do and recover from the Government. I am sorry to say that I can accept such interpretation. The import of the judgment delivered by this Court is that the acquisition proceeding under the Act may not be needed if the encroachers are driven out. Therefore, removal of the encroachers cannot be ruled out or postpone in respect of stretch of a road from 'Panagarh' to 'Palsit' in the light of such judgment irrespective of purpose of making the bypass, if any. 15. Mr. Tarun Roy, learned Additional Government Pleader supported the contention of Mr. De and stated that the State is ready to remove the encroachers. According to him, marginal farmers will be affected if fertile lands are acquired and bypass is made. Bypass is not needed if the encroachers are driven out. 16. Additionally, Mr. De contended before this Court that everything was going on smoothly before a letter written by the Secretary of a political party of the District Burdwan to the concerned Central Minister on 30th August, 2002. Readiness and willingness of the State machinery for the purpose of driving out the encroachers on the basis of joint discussion in a meeting dated 16th August, 2002 was totally ignored. Readiness and willingness of the State machinery for the purpose of driving out the encroachers on the basis of joint discussion in a meeting dated 16th August, 2002 was totally ignored. The business class who are doing roadside business by the side of the existing National Highway i.e. G.T. Road are also supporting the cause of removal. 17. He relied upon a judgment reported in AIR 1980 SC 319 (The State of Punjab & Anr. v. Gurdial Singh & Ors.) and contended that bad faith which invalidates the exercise of power sometimes called colourable exercise of fraud on power and often times overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous consideration, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion. It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. 18. He also relied upon 1981(2) CLJ 18 (Rash Mohon Chatterjee & Anr. v. State of West Bengal & Ors.). The ratio of such judgment is that in issuance of power of requisition to acquire the land an utmost caution will be taken up by the Authority and due consideration of all relevant facts and circumstances are to be made. 19. Mr. Pratap Chatterjee, learned Senior Counsel appearing for the main contesting respondents i.e. the National Highways Authority contended before this Court that the matter of constructing National Highway is a matter of great national importance. All precautionary measures were taken before taking a decision for constructing bypass. He has given very much emphasis on the "recommendation of a foreign consulting Agency as well as the letter of Minister of State (Independent Charge) Road, Transport and Highways, Government of India, New Delhi to the Chief Minister of the State. All precautionary measures were taken before taking a decision for constructing bypass. He has given very much emphasis on the "recommendation of a foreign consulting Agency as well as the letter of Minister of State (Independent Charge) Road, Transport and Highways, Government of India, New Delhi to the Chief Minister of the State. According to him, Chapter 7 of such report is called as study of alternatives for widening the road through urban centres. There under various aspects were considered i.e. (a) Operational efficiency and safety; (b) Access control; (c) Impact to existing local commercial and community 'way of life'; (d) Additional row; (e) Cost; (f) Environmental impact; (g) Impact during construction; and (h) Future widening. According to him, previously the Chief Minister of the State intimated the Central Minister that if bypass is made at 'Shaktigarh' it will destroy a very fertile multicropped area of the District Burdwan which will cause huge loss to the farmers. The present alignment has been agreed by all concerned and they are taking all steps for encroaching structures are demolished. For future expansion, he has committed to give land along with existing alignment for removing additional structures and buildings, if necessary. Such letter dated 12th September, 2002 was replied by the Minister of State, Government of India, According to him uninterrupted high speed traffic at par with International standard is not feasible while passing through the congested urban centre like 'Shaktigarh' where, even after the demolition of considerable number of structures for providing the 4-laned highway, the population on either side of the road will pose safety hazard to high-speed traffic. Moreover, there is no room left for further expansion of the highway in the very near future and ultimately they have to go for a bypass only. The Railway Authorities are also not permitted to follow the existing alignment due to their future expansion plans. Moreover, there is no room left for further expansion of the highway in the very near future and ultimately they have to go for a bypass only. The Railway Authorities are also not permitted to follow the existing alignment due to their future expansion plans. The original bypass alignment has been proposed principally keeping the following important aspects in mind:- (i) For bypassing a large congested locality like Shaktigarh town; (ii) For providing the ROB at an appropriate location which will also take care of the future plans of the Railways for laying of additional railway tracks; (iii) The reduction in the overall length of the bypass will only be 3.5 k.m. against 5.5 k.m. even if they go through the existing alignment; (iv) For providing a proper crossing with the Borsul Road through a 6 laned flyover, which will be very difficult on the alignment suggested by the Chief Minister of the State; (v) For generally providing the requirements of a modern highway system; (vi) For future expansion to 6 or 8 lane highway, minimum 90 mt. ROW is required against the availability of 45 mt. ROW on existing alignment. Upon receiving such letter, the Chief Minister of the State replied on 10th October, 2002 by accepting the proposal for construction of the bypass of the Shaktigarh town. However, he said that due to the proposed new alignment of bypass, certain problems will crop up and to overcome the same various suggestions are given including the following:- "1. After closure of Shaktigarh railway crossing on the existing alignment, the end of Shaktigarh town shall be cut off from NH-2 and it shall form a dead end. We, therefore, suggest that a suitable link road connecting the end of Shaktigarh town with the proposed bypass may be provided". 20. Mr. Chatterjee further argued by saying that the feasibility report is well-considered. The explanation had been given by the Central Minister and accepted by the Chief Minister of the State. The rate of compensation is higher than the normal rate. There is no question of bad faith or animosity. There is no occasion of regularization of the encroachers. Plan has been produced before this Court. Materials which are the basis of the judgment reported in 1981 (2) CLJ 18 (supra) cannot be the basis of this case. The rate of compensation is higher than the normal rate. There is no question of bad faith or animosity. There is no occasion of regularization of the encroachers. Plan has been produced before this Court. Materials which are the basis of the judgment reported in 1981 (2) CLJ 18 (supra) cannot be the basis of this case. Huge number of people are affected but only 14 petitioners are there because others are definitely happy with the situation. If the project is failed then the foreign bank will recall the money. In answer to acceptance of compensation all the parties have contended that the compensation has not assessed as yet. 21. He also relied upon a judgment reported in 1977 (4) SCC 471 (The State of Karnataka & Anr. v. Shri Ranganatha Reddy & Anr.). From the last part of the Paragraph 8 of the said seven Judges Bench judgment, I find that the decision was divided into 4:3. Learned Counsel was only relied upon of a portion of the judgment where under it was held that whenever a property vesting into the State Government shall be deemed to have been acquired for the public purpose. Section 13 of the National Highways Authority of India Act, 1988 also says that any land required by the Authority for discharging its functions under this Act shall be deemed to be land needed for a public purpose and such land may be acquired for the authority under the provisions of the National Highways Act, 1956. Mr. Chatterjee wanted to submit that when it has acquired no question can be raised in respect of the public purpose. He also cited 1988(1) SCC 466 (Ramgir Uttamgir Goswami v. State of Gujarat & Anr.) and contended from its Paragraph 8 to establish the delay, if any, on account of legal proceedings cannot frustrate the notification. 22. So far as the citations are concerned, the same is in respect of the general proposition of law. The general proposition of law will be applicable where the case is generally applicable. But, the case herein is of very special nature which cannot be based broadly on the ratio of such judgments alone. It is true to say that public purpose is vastly wider than public necessity. Therefore, public purpose is to be understood on the factual strength of each case. But, the case herein is of very special nature which cannot be based broadly on the ratio of such judgments alone. It is true to say that public purpose is vastly wider than public necessity. Therefore, public purpose is to be understood on the factual strength of each case. Public purpose under the Notification under Section 3A of the National Highways Act, 1956 is making of four lening bypass. It cannot be said that as six lening bypass or eight lening bypass is required for the future, facilities are to be made now even allowing the encroachers to gain time. Therefore, what is in the mind of the Government in acquiring the property may not be known to the public unless notified. Issuance of notification is an executive action, but, the same has to be tested by judicial review. There might have been recommendation of a private agency which was accepted by the concerned Minister, but, the same cannot justifiably be said to be the absolute governmental decision. Whenever a fair play is questioned by some of the affected parties, be it large or small in number, effect will be the same and the justifiability has to be tested. This is the ratio of the judgment of the case of Olga Tellis etc. reported in AIR 1986 SC 180 . Therefore, unless governmental decision either for 6 lanes or 8 lanes or for other allied purposes is reflected in the notifications to accommodate the affected parties for giving reasonable opportunities to place their objections, the same cannot be known to the public for giving objections. When the cause is special the reflection in the notification will have to be special. Duty should be corresponding to right and vice versa. If the case of the authority is genuine there cannot be any embargo in issuing further notification substituting the earlier notification and proceed in accordance with law. It is to be remembered that making 6 lanes or 8 lanes instead of 4 laning road is not incidental aspect connected with main public purpose but explicitly main public purpose. 23. According to me, factually the only disadvantageous position is the future expansion of railway route etc. It is to be remembered that making 6 lanes or 8 lanes instead of 4 laning road is not incidental aspect connected with main public purpose but explicitly main public purpose. 23. According to me, factually the only disadvantageous position is the future expansion of railway route etc. but, not the encroachers' encroachment of the road area of NH-2, i.e. G.T. Road because legally they cannot occupy nor it can be construed that urban area of the 'Shaktigarh' town is so big that the encroachers cannot be removed. The Road map being the part and parcel of the record does not say so. If I proceed on the basis of the letter of the Chief Minister written to the Central Minister I shall be able to find that the acceptance of proposal is not absolute but with rider. The first important part is that after closure of Shaktigarh Railway crossing on the existing alignment, the end of the Shaktigarh town shall be cut off from NH-2 and itself will form an dead end. If it happens, then the same will be obviously become encroachers' paradise. It will not be easy task for the Government to remove them at that point of time. Therefore, the suggestion as given that a suitable link road connecting the end of Shaktigarh town with the proposed bypass may be considered as an acceptable proposal. Therefore, if the ratio of the judgment reported in 2002(2) CHN 371 (supra) is taken together with the aforesaid rider, it will be seen that a purposeful bypass can be made provided encroachers occupying the original stretch of the G.T. Road being National Highway No.2 are removed before making bypass. Then the authority can be able to proceed for measurement and further for making bypass, if any. Although Mr. Chatterjee raised his voice by saying that the authorities are not going to regularize the encroachers, the same will be done in future but if the letter of the political party, the suggestion of the Chief Minister of the State and the judgment of this Court reported in 2002(2) CHN 371 (supra) are taken together no room should be left open for future litigation. There is no difficulty in doing so. The stage of hearing is under Section 3A. The stages of Section 3C and Section 3D will come later. There is no difficulty in doing so. The stage of hearing is under Section 3A. The stages of Section 3C and Section 3D will come later. For the purpose of 6 laning or 8 laning either for now or future a further notification can also be issued. Unless the objectors are given opportunities of hearing the matter cannot be said to be finally decided. The land cannot be declared as acquired for the purpose of construction. No coercive stand can be taken. Therefore, during such period, if the encroachers are removed an appropriate picture of making bypass, if any, along with making the original track as main part of Highway or link will come out. Although the writ petition, in which the judgment was delivered as reported in 2002(2) CHN 371 (supra) made by some of the people of the locality called 'Galsi' within the stretch of 'Panagarh' and 'Palsit' but it cannot be said that the ratio of such judgment is made applicable only for the strip of 'Galsi' within the entire stretch between 'Panagarh' and 'Palsit'. Removal of encroachers from the occupied area of the National Highway is made principle under such judgment. Therefore, I cannot deviate from the ratio of the judgment delivered by brother Justice Asok Kumar Ganguly. From the point of public exchequer, it is prudent. From the point of administrative exigencies of both Central and State Governments, it is prudent. Even from the point of giving effect of the decision it is prudent. If it is done, there would not be any doubt in the mind of the public at large that they are made victim of the circumstances by making bypass when unauthorized occupants are occupying the substantial part of National Highway. Right of the lawful owners of the private lands is much higher than the unlawful occupiers of the Governmental lands i.e. National Highway. 24. Thus, taking into totality of the matter, I am of the view that removal of the encroachers from the original track of the National Highway will be done immediately by following the ratio of the judgment reported in 2002(2) CHN 371 (supra) either for making original Express Highway or for making a link of the original Express Highway, Balance of convenience prescribes extension of period of hearing of pending objections for a period of 21 days will be made from the date of communication of this order. Therefore, such extension is made. Similarly, the authority is entitled to issue a further notification for 6 laning or 8 laning road and for allied purposes, if necessary, either for now or for future on such date so that objectors' objections can be heard simultaneously to complete the adjudication proceedings in accordance with law. 25. So far as the other case is concerned, I have already held in this judgment that there is no practical difference in removing the encroachers in between the places called 'Galsi' and 'Budbud'. Therefore, the ratio of the judgment reported in 2002(2) CHN 371 (supra) for the purpose of widening the road has to be made applicable therein and the same is the true import of the notification and thereafter, if necessary, the situation will be reviewed for taking steps for making bypass in accordance with law. 26. All the steps will be taken as expeditiously as possible considering national importance. 27. Copies of the plans relied upon by the authority is made part and parcel of the record. 28. Thus, both the writ petitions are disposed of. However, no order is passed as to costs. Let an urgent xeroxed certified copy of this judgments, it applied for, be given to the learned Advocates for the parties within two weeks from the date of putting the requisites.