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2012 DIGILAW 1168 (JHR)

Rakesh Kumar v. Union of India

2012-08-06

R.K.MERATHIA

body2012
ORDER As prayed by Mr. V. Shivnath, learned senior counsel for the petitioners, the defects pointed out are ignored. 2. This Civil Review Application has been filed for reviewing the order dated 1.4.2011, passed in WPC No. 1003 of 2011. 3. Mr. Shivnath referred to the following prayer made in the writ petition— “It may be pertinent to mention here that in the impugned notification dated 9th August, 2010 (Annexure-3) of the initiation of acquisition of Plot No. 527 is not being included and, therefore, the Mandir which stands on the portion of Plot No. 527 is not subjected to acquisition and, therefore, the acquisition of the lands adjacent to Plot Nos. 527 and 528 cannot be subject matter of acquisition under National Highways Act, 1956”. He argued that the said aspect was not considered and therefore the appellate court permitted the petitioners to file this review application vide order dated 17.07.2012, passed in LPA No. 155 of 2011. He then argued that as the said plot no. 527 was not mentioned in the notification, petitioner no. 1-Rakesh Kumar being owner thereof had no opportunity to make effective objection to the notification of acquisition. He further argued that the objections of the petitioners have been rejected without considering the said aspect with regard to plot no. 527. He therefore argued that either the notifications of acquisition be quashed or the matter maybe remanded for giving an opportunity of hearing to the petitioners on the said aspect regarding plot no. 527. He relied on some of the portions of the following judgments. (2009) 14 SCC 281 -Mahender Pal Vs. State of Haryana; (2011) 5 SCC 553 -Radhy Shyam (dead) through Lrs. Vs. State of U.P.; (2011) 8 SCC-708-Rajiv Sarin Vs. State of Uttarakhand; (2011) 10 SCC 714 - J & K. Housing Board Vs. Kunwar Sanjay Krishan Kaul. 4. On the other hand, the respondents have controverted the said contentions raised on behalf of the petitioners. According to them, the respondents have acted legally, and the notification under section 3D of the National Highways Act, 1956 ( hereinafter referred to as the Act for short) has also been issued. There is no finding by the appellate court that the writ court did not consider the aspect of non acquisition of plot no. 527. This review is barred by constructive res judicata. There is no finding by the appellate court that the writ court did not consider the aspect of non acquisition of plot no. 527. This review is barred by constructive res judicata. Paragraph 28 of the judgment reported in (2011) 12 SCC 69 Union of India Vs. Kushala Shetty has been relied. 5. After hearing at length and carefully going through the records, the following position emerges. 6. The writ petition was filed by six persons, namely Rakesh Kumar, Khushi Lal Mahto, Roop Lal Mahto, Md. Zeyauddin, Veena Devi and Madan Lal Agarwal. The L.P.A. was filed by only one of the writ petitioners namely Rakesh Kumar, making other writ petitioners as proforma respondents. This Civil Review application has been filed only by four of the writ petitioners namely Rakesh Kumar, Md. Zeyauddin, Veena Devi and Madan Lal Agarwal. So far as Plot No. 527 is concerned, its ownership has been claimed only by petitioner no. 1-Rakesh Kumar. According to the petitioners, petitioner no. 1-Rakesh Kumar is the owner of plot no. 527 along with plot no. 528, measuring 20 + 5 decimals, on which he has constructed pucca boundary and such plots are adjacent to the existing N.H. 33 running from Ramgarh to Ranchi Via village Kankebar, and that father of petitioner no. 1Rakesh Kumar had constructed a Kali Mandir in the year 1970 over plot no. 527. Other petitioners were said to be raiyats of other plots. 7. A notification under section 3A of the Act was published expressing intention of acquisition of lands described therein for National Highway. The petitioner on his behalf and on behalf of other villagers; the villagers and others made several objections against the alignment, only. 8. In paragraph 14 of the objection dated 27.09.2010, it was inter alia said that if the alignment is not changed, the villagers, the Masjid, Puja Sthal, Government School, Church and the houses of the raiyats, situated at different plots including plot no. 527 will have to be demolished. 9. Thus, it is clear that petitioner no. 1 filed objection clearly knowing and understanding that plot no. 527 was also under acquisition. The question with regard to Plot No. 527 raised in LPA and this review was not raised before the authorities. The objection was with regard to alignment only. 527 will have to be demolished. 9. Thus, it is clear that petitioner no. 1 filed objection clearly knowing and understanding that plot no. 527 was also under acquisition. The question with regard to Plot No. 527 raised in LPA and this review was not raised before the authorities. The objection was with regard to alignment only. Therefore the competent authority after hearing the parties on their objection to the alignment, passed the order dated 5.10.2010, impugned in the writ petition. 10. It may also be noted that spot inspections were made on the objections of the petitioners and others with regard to change of alignment. In the letter dated 22.09.2010, it was inter alia observed as follows. “The issue raised in the Petition dated 10.07.10 of Sri Rakesh Kumar of Village: Kankebar, Dist: Ramgarh (Jharkhand) received vide PMO ID No. 2/3/2010-PMP3/190614 dt.05.08.10 have further been got verified at site and observed that some of the private premises/structures including that of belonging to the petitioner, Shri Rakesh Kumar in whose premises an idol of Goddess Kali Maa is installed are under acquisition being inevitable for minimum mandatory geometric parameters in ensuring the smooth and safe traffic flow. The main premises of Prathmik Sarkari Vidyalya is out of acquisition except small portion of its outer premises/boundary. The premises of Nuri Maszid indeed is under acquisition and required to be shifted amicably. The church and ASSISI Bhawan premises is out of ROW, hence not under acquisition. However, within the ROW, the centre line of the divided four lane carriageway is being re-reviewed at site in reassuring the public inconvenience to the bare minimum level. The alleged favour to the BOT Concessionaire due to Ramgarh Bypass alignment would rather be otherwise in case of any delay in fulfillment of mutual tripartite commitment of State Government and NHAI with the BOT Concessionaire to hand over the requisite land (encumbrance free) of Ramgarh Bypass including that of falling in village: Kankebar within 06 months period”. 11. In the judgment reported in (2011)12 SCC 69-Union of India Vs. Kushala Shetty in paragrah 28, the Supreme Court observed as follows:- "28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. 11. In the judgment reported in (2011)12 SCC 69-Union of India Vs. Kushala Shetty in paragrah 28, the Supreme Court observed as follows:- "28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of national highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither has any violation of mandate of the 1956 Act been established nor has the charge of malice in fact been proved. Therefore, the order under challenge cannot be sustained". 12. According to the respondents, plot no. 527 was not notified as it is Government land. If the petitioner no. 1 satisfies the concerned authorities, about his ownership over plot no. 527, at best, he can get compensation. 13. In the facts and circumstances of the case, noticed above, the contentions raised on behalf of the petitioners that-as plot no. 527 was not notified, the same along with adjacent plot no. 528, is beyond acquisition; and that if plot no. 527 was within acquisition, petitioners had no opportunity to file objection; cannot be accepted. 14. There is no dispute with the ratio of the judgments relied by Mr. Shivnath, but he could not show how they are of any help to the petitioners in the facts and circumstances of this case. In paragraph 31 of Goan Real Estate & Construction Ltd. Vs. 14. There is no dispute with the ratio of the judgments relied by Mr. Shivnath, but he could not show how they are of any help to the petitioners in the facts and circumstances of this case. In paragraph 31 of Goan Real Estate & Construction Ltd. Vs. Union of India (2010) 5 SCC 388, it has been observed as follows. "31. It is well settled that an order of a court must be construed having regard to the text and context in which the same was passed. For the said purpose, the judgment of this Court is required to be read in its entirety. A judgment, it is well settled, cannot be read as a statute. Construction of a judgment should be made in the light of factual matrix involved therein. What is more important is to see the issue involved therein and the context wherein the observations were made. Observation made in a judgment, it is trite, should not be read in isolation and out of context..... 15. There is another aspect. It has to be presumed that the contentions raised in the writ petition were pressed and considered while passing the order under review. Otherwise, there will be no end to litigation. In my opinion, this Civil Review Application is also barred by the principles of constructive resjudicata. 16. After hearing at length, and carefully going through the entire records, in my opinion, no grounds are made out for reviewing the order under review. 17. This Review Petition is not only devoid of merit, it is also an abuse of the process of the court. In the result, it is dismissed, with a token cost of Rs.5000/- payable to the learned advocate appearing for the respondents, within four weeks. Petition dismissed.