Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 1877 (PNJ)

Ashok Leyland Limited v. Union of India

2011-10-17

M.M.KUMAR, RAJIV NARAIN RAINA

body2011
JUDGMENT Mr. M.M. Kumar, ACJ.: - This petition filed under Article 226 of the Constitution seeks a declaration to the effect that provisions of the National Highways Act, 1956 (for brevity, ‘the N.H. Act’) are ultra vires Articles 14, 19, 21 and 300-A of the Constitution and also seeks consequential relief of quashing of notifications dated 1.10.2009, 21.12.2009 and 13.1.2009 (P-6, P-7 and P-8 respectively), issued under Section 3A read with Section 3D of the N.H. Act, in respect of the land forming part of Khasra Nos. 26/8/2 (measuring 75.87 Sq. Mtrs.), 26/8/2/1 (measuring 1871.46 Sq. Mtrs.), 26/8/2 (measuring 177.03 Sq. Mtrs.) and 26/13/1/1 (measuring 556.36 Sq. Mtrs.). 2. At the outset it is relevant to mention here that the question of vires has already been decided by a Division Bench of this Court, vide order dated 15.3.2010. Following the judgment dated 28.3.2008 rendered by another Division Bench in the case of M/s Golden Iron and Steel Forging v. Union of India and others (CWP No. 11461 of 2005) wherein the special provisions relating to acquisition were upheld although the provisions of Section 3G read with Section 3J of the N.H. Act relating to interest and solatium were struck down. It was held that solatium and interest would be payable as per the provisions of the Land Acquisition Act, 1894 (for brevity, ‘the 1894 Act’). Accordingly, this Court rejected the challenge made by the petitioner regarding vires of Sections 3A and 3D etc. of the N.H. Act, vide order dated 15.3.2010. 3. For the purposes of deciding the other issues raised in the instant petition, it would be necessary to notice few material facts. M/s Ashok Leyland Limited-petitioner is a company incorporated under the Companies Act, 1956. It had purchased land/property bearing No. 12/5, Mathura Road, Faridabad, comprised in Khasra Nos. 26/8/2 (1-17), 26/13/1 (2-10), 26/12/2 (5-7)Min, 26/12/2 (5-7), 26/9 (8-0), 26/10Min (1-9) and 26/11/1min (1-9), village Sarai Khawaja, vide sale deed dated 4.8.1998. Thereafter, the petitioner Company developed the area and constructed its main office building. On 10.2.2010, the petitioner Company received a notice under the provisions of the N.H. Act announcing that the land in question has been acquired and possession would be taken within 60 days from the issuance of said notice. Thereafter, the petitioner Company developed the area and constructed its main office building. On 10.2.2010, the petitioner Company received a notice under the provisions of the N.H. Act announcing that the land in question has been acquired and possession would be taken within 60 days from the issuance of said notice. In fact, the said notice was issued by the Competent Authority-cum-Land Acquisition Collector-respondent No. 3 by naming the erstwhile owner, namely, M/s Delhi Automobiles Ltd. (P-2). 4. After making inquiries, the petitioner Company came to know that the land of the petitioner Company comprised in Khasra Nos. 26/8/1 and 26/13/1/1/2 has been sought to be acquired. On 18.8.2008, a notification under Section 3A of the N.H. Act was issued which was amended by issuing another notification dated 21.1.2009. On 12.8.2009 another notification was issued under Section 3D(i) of the N.H. Act. Copies of the said notifications have been placed on record as Annexure P-5. By the said notifications land measuring 75.87 Square Meters belonging to the petitioner company out of Khasra No. 26/8/2 was sought to be acquired for the purposes of building, maintenance, management and operation of National Highway No. 2. On 1.10.2009, another notification under Section 3A of the N.H. Act was issued wherein the land forming part of Khasra No. 26/8/2/1 (871.46 Square Maters) and 26/12/1/1/2 (859.86 Square Meters), belonging to the petitioner Company was sought to be acquired (P-6). On 21.12.2009 a declaration under Section 3D of the N.H. Act was issued (P-7). Still further, another notification under Section 3A of the N.H. Act was issued on 13.1.2010 whereby the land falling in Khasra Nos. 26/8/2 (556.35 Square Meters) and 26/12/1 (177.03 Square Meters) belonging to the petitioner Company was sought to be acquired (P-8). The petitioner Company claims to have made several representations such as 19.2.2010, 26.2.2010 and 5.3.2010 (P-3, P-4 and P-9) regarding release of their land but of no effect. The acquisition proceedings in the instant petition have been challenged primarily on the ground that the land of the petitioner company is not required for the purposes of National Highway because the same is sought to be acquired upto the depth of 80 meters whereas the adjoining lands have been acquired only upto the depth of few meters. The acquisition proceedings in the instant petition have been challenged primarily on the ground that the land of the petitioner company is not required for the purposes of National Highway because the same is sought to be acquired upto the depth of 80 meters whereas the adjoining lands have been acquired only upto the depth of few meters. Second ground of challenge is that the impugned notifications are vague because they did not give the location/identification of land which was sought to be acquired to enable the landowners to effectively avail the opportunity of filing objections to the acquisition. The petitioner Company has also challenged the notifications on the ground of being discriminatory in nature and violative of Article 14 of the Constitution. 5. Mr. Sumit Bansal, learned counsel for the petitioner has attacked the notifications dated 21.1.2009, 1.10.2009 and 13.1.2010, issued under Section 3A of the N.H. Act on various grounds. The notifications have been placed on record as part of Annexures P-5, P-6 and P-8 respectively. The first argument raised by Mr. Bansal is that the notifications merely reproduce the language of Section 3A of the N.H. Act and liable to be set aside on the ground because there is no mention of Section 13 of the 1988 Act. Learned counsel has maintained that Section 13 read with Section 16 of the 1988 Act gives the detailed functions of the ‘NHAI’ and in the absence of specific publication under Section 3A of the N.H. Act declaring that the acquisition is for the purpose of discharging public functions enjoin upon the authority under Section 13 read with Section 16 of the 1988 Act read with Section 3A of the N.H. Act, the notifications would suffer from inherent illegality and are, thus, liable to be quashed. In that regard, our attention has been invited to the express language used in Section 13, which uses the expression ‘discharging its function under this Act’, which would be deemed to be a public purpose. For the purpose of understanding the functions of the authority, a reference has been made to the provisions of Section 16(1) & (2) of the 1988 Act. Section 16(2)(b) specifically provides that the authority may for the discharge of its functions construct offices or workshops and establish and maintains hotels, motels, restaurants and rest rooms at or near the highway vested in or entrusted to it. Section 16(2)(b) specifically provides that the authority may for the discharge of its functions construct offices or workshops and establish and maintains hotels, motels, restaurants and rest rooms at or near the highway vested in or entrusted to it. According to sub-section (c), it can construct residential building and township for its employees. Therefore, the argument is that the land of the petitioner beyond the depth of 10 meters cannot be acquired because it is not covered by either the public purpose envisaged by Section 3A of the N.H. Act. Mr. Bansal has further stated that it is un-imaginable that the land could be used for providing maintenance workshop, setting up of medical aid post, traffic aid post and for constructing drain portion etc. which has been reflected in para 3 of the application filed by the respondents seeking vacation of stay orders (CM No. 10575 of 2011). 6. The second argument raised by Mr. Bansal is based on the judgment of Hon’ble the Supreme Court rendered in the case of Competent Authority v. Barangore Jute Factory, JT 2005 (10) SC 50. The argument is that the site plan has to link with the notification and it also requires sanction of the Central Government in order to sustain its validity. According to the learned counsel, the aforesaid requirement has been laid down in paras 8, 9 and 10 of the judgment which postulate that there has to be a site plan available for the purposes of filing objections under Section 3C effectively. It has been laid down that in the absence of site plan, an owner of the land would not know for what purpose the land would be put to. 7. Mr. Kamal Sehgal, learned counsel for the respondents has, however, submitted that the provisions of the N.H. Act been religiously followed and there is no bar to acquire the land under Section 3A for discharging the functions envisaged under Section 16 of the 1988 Act. In that regard, reliance has been placed on paras Nos. 11, 12 and 13 of a Division Bench judgment of the Madhya Pradesh High Court rendered in the case of Devi Prasad Singh v. State of M.P., 2008 Law Suit (MP) 790. Mr. In that regard, reliance has been placed on paras Nos. 11, 12 and 13 of a Division Bench judgment of the Madhya Pradesh High Court rendered in the case of Devi Prasad Singh v. State of M.P., 2008 Law Suit (MP) 790. Mr. Sehgal has further argued that the second argument raised on behalf of the petitioner is also without substance because in the case of Competent Authority (supra), there was no site plan available. In the present case the written statement has been filed by respondent Nos. 1 and 2. It has been clarified in reply to para Nos. 17 to 20 that the land under acquisition is approximately 65 meters in depth from the existing Right of Way as against 80 meters as alleged by the petitioner. The land belonging to the petitioner is required for installation of toll gates which is falling just in front of the petitioner’s land. The land is also required for the purposes of widening, management, operation and maintenance of the Bardarpur Elevated Highway Project, installation of an administrative building consisting of main control centre, the security headquarter, the toll audit and data processing unit, traffic aid post, medical aid post and other allied facilities/services such as parking for users, computer room, office space, stores, sanitary facility, canteen etc. Other than this, the land at that particular point is required for High Tension and Low Tension line control room as alsofor installation of a maintenance workshop and Central store, laboratory, fuel tank, parking of maintenance vehicle and toeing vehicles, parking for ambulance, parking for staff and internal roads. It has been pointed out that all the above are integral part of Badarpur elevated Highway project and without acquiring the petitioner’s land, the project could not be implemented successfully. 8. It has further been pointed out that there is no requirement of publication of the site plan with the notification nor any separate sanction of the Central Government would be necessary. Such an omission does not in any manner negate the right to file objections under Section 3C of the N.H. Act. In any case the notifications makes a specific reference to the site plan available in the office of the competent authority, which could be inspected by an aggrieved person before filing of the objections. The site plan has been placed on record as Annexure CA-7. In any case the notifications makes a specific reference to the site plan available in the office of the competent authority, which could be inspected by an aggrieved person before filing of the objections. The site plan has been placed on record as Annexure CA-7. Making submission on the ratio of the judgment rendered in Barangore Jute Factory (supra), it has been argued that there no site plan was available nor any reference was made in the notification whereas in the impugned notifications it has been specifically recorded that the site plans and other details of the land covered under the notification were available and could be inspected by the interested persons in the office of the competent authority. The notifications also give sufficient description of the acquired land and do not suffer from the allegation of vagueness. 9. Having heard the arguments and perusing paper book we have minutely considered the submissions of the learned counsel and have perused the record. This Court is of the view that this petition does not merit admission and is, thus, liable to be dismissed. A perusal of record shows that notification under Section 3A of the N.H. Act was issued in respect of the disputed land for the public purpose of widening of National Highway which was notified in the Gazette on 18.8.2008. It was also published in the newspapers, namely, ‘Dainik Jagran’, dated 12.9.2008 and ‘Amar Ujala’, dated 11.9.2008. It is also evident that munadi (proclamation) by beat of drums in the locality was also effected. In that regard there is entry made in the Roznamcha Wakayati by the Patwari, vide Rapat No. 379, dated 31.8.2008, at Village Sarai Khwaja. The land owners were given time to file objections although the petitioner did not file any objection. It was thereafter that a notification under Section 3D of the N.H. Act was issued, which has also been published in the official gazette. It was also published in two daily newspapers. Even munadi was effected by beat of drums in the locality and a report to this effect was recorded by the Halqua Patwari, vide Rapat No. 1, dated 1.9.2009. Similar procedure has been followed in respect of other notifications dated 1.10.2009 and 13.1.2010, as is evident from the un-controverted facts revealed in various paras of the written statement filed by the competent authority-respondent No. 3. Similar procedure has been followed in respect of other notifications dated 1.10.2009 and 13.1.2010, as is evident from the un-controverted facts revealed in various paras of the written statement filed by the competent authority-respondent No. 3. According to averments made in para 6 of the written statement on merit, the payment of compensation was offered to the land owners at the time of announcement of the award. It is claimed that as per record Delhi Automobiles was the owner and the petitioner was not the owner. 10. The first argument of Mr. Bansal is that disclosure of the public purpose by producing the language of Section 13 and 16 is not sufficient and the notification should have mentioned all those functions to which reference has been made in Sections 13 and 16 of the 1988 Act. The aforesaid argument is not sustainable. On facts, notification dated 18.8.2008 categorically announces that the land was required for a public purpose and was required for building (widening), maintenance, management and operation of National Highway No. 2. The aforesaid public purpose is traceable to Section 16 and Section 13 of the 1988 Act. Once the power is traceable to a statutory provision it is not mandatory. It would not render a notification illegal. For deciding the issue it would be necessary to set out relevant provisions of Section 13 and 16 of the 1988 Act, which reads thus: “13. Compulsory acquisition of land for the Authority.- 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 (48 of 1956).” “16. Functions of the Authority.- (1) Subject to the rules made by the Central Government in this behalf, it shall be the function of the Authority to develop, maintain and manage the national highways and any other highways vested in, or entrusted to, it by the Government. Functions of the Authority.- (1) Subject to the rules made by the Central Government in this behalf, it shall be the function of the Authority to develop, maintain and manage the national highways and any other highways vested in, or entrusted to, it by the Government. (2) Without prejudice to the generality of the provisions contained in sub-section (1), the Authority may, for the discharge of its functions - (a) xxx xxx xxx (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 employees; (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) to (l) xxx xxx xxx 3. xxx xxx xxx” 11. A perusal of Section 13 would reveal that any land required by the Authority for discharging its functions would be deemed to be land needed for a public purpose. The functions which the Authority is to discharge as per Section 16(2) of the 1988 Act are to construct offices, workshops, establish and maintain hotels, motels, restaurants, rest-rooms at or near highway vested in it or entrusted to it. It has function to construct residential buildings and townships for its employees. The language of the notification adequately announces the purpose for which the land was required and the same is traceable to Sections 13 and 16(2) of the 1988 Act. It is well settled that where a provision has not been quoted and it is traceable to the notification issued then such notification cannot be declared illegal for want of quoting the provisions. In that regard reliance may be placed on the observations made by Hon’ble the Supreme Court in the judgments rendered in the cases of Peerless General Financial Investments Co. In that regard reliance may be placed on the observations made by Hon’ble the Supreme Court in the judgments rendered in the cases of Peerless General Financial Investments Co. Pvt. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343 ; BSE Brokers’ Forum v. Securities and Exchange Board of India, (2001) 3 SCC 482 ; and Chairman and M.D., BPL Ltd. v. S.P. Gururaja, (2003) 8 SCC 567 . Therefore, the first argument of Mr. Bansal fails and we have no hesitation in rejecting the same. 12. The other argument based on the judgment of Hon’ble the Supreme Court in the case of Competent Authority (supra) also lacks merit and is, thus, liable to be rejected. Firstly, on facts of the present case the notification under Section 3A of the N.H. Act issued in the official Gazette, would show that the land plans and other details of the land covered under the notification were available and could be inspected by the interested person at the office of the competent authority. It is sufficient compliance with Section 3A(2) of the N.H. Act. In the reported judgment there was no land plans or other details of the land made available nor mentioned in the notification. In para 8 of the judgment in the case of Competent Authority (supra) following pertinent observations have been made, which read thus: “8. The availability of a plan would have made all the difference. If there is a plan, the area under acquisition becomes identifiable immediately. The question whether the impugned Notification meets the requirement of brief description of land under Section 3A(2) goes to the root of the matter. ……………… But where is the plan? The Notification in question makes no reference to any plan. Our attention was drawn to averments in pleadings by writ petitioners and replies thereto of the acquiring authority. The writ petitioners have pleaded that there was no plan. Replies are vague and by way of rolled up answers. There is no specific reply. It is obvious that there was no plan and therefore none was referred to in pleadings nor any thing was produced before Court at the hearing. ………… A reference to the impugned Notification shows that there is no mention of any Plan. Without this how can anybody know that there was a plan which could be inspected and inspected where? ………” 13. ………… A reference to the impugned Notification shows that there is no mention of any Plan. Without this how can anybody know that there was a plan which could be inspected and inspected where? ………” 13. It is, thus, obvious that the land plans in the reported judgment were not available whereas in the case in hand land plans stood incorporated by notice in the notification itself. Therefore, the second argument raised by Mr. Bansal also fails. 14. As a sequel to the above discussion, the instant petition fails and the same is accordingly dismissed.