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2015 DIGILAW 2017 (RAJ)

Amba Lal v. State of Rajasthan

2015-12-04

P.K.LOHRA

body2015
JUDGMENT 1. - Petitioners, Khatedars of agricultural land comprised in Aarji Nos. 2168, 2169, 2170, 2390 and 2391 of Revenue Village Dhoinda, Patwar Circle Dhoinda, Tehsil & District Rajsamand, have preferred this writ petition praying therein under-mentioned reliefs: It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuing an appropriate writ, order or direction the notices dated 7.10.2014 (Annex.6) may kindly be quashed and set aside and the respondent may be restrained from utilising only petitioners land for the purpose of construction/width of National Highway No.758, as mentioned in the notification (Annex.2) Any other order favourable to the petitioners may also be passed. 2. Succinctly stated, the facts of the case are that Union of India issued a notification dated 28th of December, 2012 under Section 3A of the National Highways Act, 1956 (for short, 'Act of 1956') intending to acquire land for widening National Highway No.758 to facilitate its conversion as four lane road at Rajsamand to Bhilwara Section. In the notification, it was clarified that any khatedar/land-owner may submit objection pursuant to notification under Section 3A of the Act of 1956 and the petitioners submitted their objections on 19th February, 2013. Competent authority, i.e., respondent No.4, decided objections vide its order dated 19th March, 2013. The petitioners have set out a case that in all 45 persons submitted their objections but all those objections were rejected by the competent authority in a slipshod manner without objective considerations. It is also averred that objections of the individual khatedars were not properly dealt with in the order dated 19th March, 2013. After rejection of the objections of various land-owners including the petitioners, declaration under Section 3D of the Act of 1956 was issued on 4th of October, 2013. The declaration under Section 3D of the Act of 1956 is followed by a notice dated 7th October, 2014 asking the petitioners to hand over possession of the land sought to be acquired and further submit requisite documents for facilitating payment of compensation amount. A specific plea is raised in the writ petition that so far compensation has not been paid to the petitioners. 3. A specific plea is raised in the writ petition that so far compensation has not been paid to the petitioners. 3. Subsequently, yet another notification under Section 3A of the Act came into offing on 20th of February, 2014, which was published in the newspaper on 29th March, 2014 intending to acquire additional land for the purpose of construction of National Highway No.75. Pursuant thereto, petitioners were called upon to submit their objections as their land was part of the notification. However, at the behest of petitioners, no objection was submitted. In these circumstances, declaration of acquisition under Section 3D of the Act of 1956 was issued on 6th February, 2015. Therefore, as a consequence of declarations (Annexs. 5 & 8), the entire agricultural land, which was part of five Aarajis, mentioned herein above, became subject-matter of acquisition for construction/widening N.H. 758. The precise ground set out in the petition by the petitioners for craving the reliefs mentioned supra, as per the averments in the writ petition, is that acquisition has not been carried out from the center point of the road towards both the sides. For ventilating their grievances, petitioners have also submitted an application on 22nd of January, 2015 (Annex.9) before District Collector, Rajsamand which was followed by a reminder on 13th of April, 2015. However, as per the petitioners' version, no heed was paid to the representation. Therefore, without questioning the acquisition proceedings, the mode of acquisition is the bone of contention in the writ petition and as such the action of the respondent is assailed. Acquisition is also challenged on technical pretext by submitting that the land is not sought to be acquired uniformly from the center point of the road. An objection is also raised that no map as such was published while proceeding with the acquisition of land. 4. On behalf of respondents No.2 & 4 reply to the writ petition is submitted. Petition is opposed stoutly on the ground of delay and laches by asserting that land acquisition proceedings pursuant to notification (Annex.2) completed and the petitioners were also issued notices in respect of disbursement of the compensation. As per the version of respondents, the acquisition proceedings which were initiated in December, 2012 and completed in 2014 are sought to be challenged by the petitioners in May 2015, therefore, challenge cannot be sustained solely on the ground of delay and laches. As per the version of respondents, the acquisition proceedings which were initiated in December, 2012 and completed in 2014 are sought to be challenged by the petitioners in May 2015, therefore, challenge cannot be sustained solely on the ground of delay and laches. That apart, some other objections are also incorporated in the return. It is also averred in the reply that pursuant to notification (Annex.2) objections of the petitioners were rejected in strict adherence of Section 3C of the Act of 1956 and that has culminated into declaration under Section 3D of the Act of 1956, and furthermore pursuant to subsequent notification under Section 3A of the Act of 1956, no objections are submitted by the petitioners and that facilitated issuance of declaration under Section 3D of the Act of 1956 make it abundantly clear that grievance of the petitioners are wholly unfounded and based on certain hypothetical considerations. It is submitted in the reply that acquisition has been carried out for widening of NH 758 strictly as per norms and on the basis of report of technical experts which cannot be made subject-matter of judicial scrutiny in this petition. As regards the acquisition proceedings, which were initiated pursuant to Annex.2 it is submitted by the respondents that compensation has been determined and the petitioners can very well claim compensation by furnishing requisite documents. According to respondents, the disbursement of the compensation has not been delayed by them, but same is delayed due to inaction on the part of petitioners in not furnishing the requisite documents. While adverting to the second notification for acquisition, the respondents have pleaded that determination and disbursement of the amount of compensation is under process and at the earliest same would be disbursed. A specific objection is raised that petitioners are guilty of suppressing material facts and making patent misstatement of facts that compensation amount has not been determined and has not been paid. While joining issue with the petitioners on the modality of the acquisition of the land, it is submitted by the respondents that the project in question has been designed based on detailed studies done by Detailed Project Report consultant, keeping in view various relevant factors including intensity of heavy vehicular traffic and public interest at large. While joining issue with the petitioners on the modality of the acquisition of the land, it is submitted by the respondents that the project in question has been designed based on detailed studies done by Detailed Project Report consultant, keeping in view various relevant factors including intensity of heavy vehicular traffic and public interest at large. Asserting with full emphasis that the respondents have high degree of expertise in the field and they are using best technical know-how for implementation of such projects. With all these positive assertions, the so-called apprehensions of the petitioners have been emphatically refuted by the respondents. It is also submitted in the return that as per the approved alignment lands belonging to petitioners and some other properties are required for facilitating construction of national highway as all these properties are falling within the approved alignment of the construction work. The grounds urged in the writ petition are also refuted with full emphasis by the respondents. Along with the reply, copy of compensation awards (Annex.R/2/1 and R/2/2) are also placed on record and it is submitted that the amount determined by the competent authority has been deposited in his office and its disbursement is in process. Taking into account the entire factual scenario, respondents have submitted that when the petitioners have voluntarily not objected to the acquisition proceedings and no challenge is laid in the petition, in this behalf, they cannot be permitted to create obstruction or hindrance in construction of the road by taking certain frivolous and vexatious objections. 5. After submission of reply to the writ petition, petitioners submitted their rejoinder wherein the facts averred in the writ petition are reiterated. The petitioners have also made an attempt to refute all the preliminary objections incorporated in the return. On the issue of determination of compensation by the competent authority, the petitioners have submitted that so far no information has been divulged to them by the competent authority and as such they have not received compensation amount. Yet again, an attempt is made by the petitioners that petitioners have not been apprised about the amount of compensation determined by competent authority, and therefore, they are well within their rights to seek redressal from this Court. Yet again, an attempt is made by the petitioners that petitioners have not been apprised about the amount of compensation determined by competent authority, and therefore, they are well within their rights to seek redressal from this Court. The petitioners have also made an attempt to castigate the respondents for their adamancy and acting on whims and caprice without considering the ground realities and some of the facts which are relevant and germane to the matter. 6. Heard learned counsel for the parties and perused the materials available on record. 7. The power of compulsory acquisition embodies the principle of what is called "Eminent Domain". It signifies powers of the sovereign to take property for the public use without the owner's consent. The power of Eminent Domain is an incident of federal sovereign and an "off spring of political necessity". The relevant law of compulsory acquisition of land with which we are concerned in the present petition is the Act of 1956, which also emanates from the principle of Eminent Domain. 8. A glance at the averments contained in the writ petition clearly and unequivocally reveal that petitioners have not made any endeavour to question the acquisition proceedings. The concern of the petitioners is the manner of land acquisition carried out by the respondent NHAI inasmuch as, according to the petitioners for widening of NH No.758, acquisition has not been carried out from the center point of the road towards both the sides. Petitioners have made an attempt to castigate the respondents that while acquiring the land for widening of NH No.758, respondents have completely eschewed technical aspects of the matter and have not acquired the Government land which was available but have proceeded to acquire the land belonging to them. To meet this challenge of the petitioners, the respondent-NHAI has submitted in its reply that as per approved alignment, lands belonging to the petitioners and some other properties are required for facilitating construction of national highway as all these properties are falling within the approved alignment of the construction work. To meet this challenge of the petitioners, the respondent-NHAI has submitted in its reply that as per approved alignment, lands belonging to the petitioners and some other properties are required for facilitating construction of national highway as all these properties are falling within the approved alignment of the construction work. While questioning the objections of the petitioner as vague and cryptic, it is also submitted in the return that the acquisition of the land for the purpose of construction/widening of National Highway is being done on the basis of detailed report prepared by DPR Consultants of NHAI and alignment of road is approved while keeping in view the relevant factors like geographical, environmental, topographical and geometrical aspect as well as prevailing road norms. Therefore, in substance, acquisition of the land of the petitioners is founded on the expert opinion and as per the respondents, court is expected to trench into this sphere to make this issue subject of judicial review in exercise of extraordinary jurisdiction. 9. It is trite that Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to technical matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working in the field and the departments controlling them. It is not permissible for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. 10. If the afflictions of the petitioners are examined on the touchstone of relevant provisions of the Act of 1956 namely Section 3C and 3D of the Act of 1956 then it would ipso facto reveal that pursuant to first notification (Annex.2), objections submitted by the petitioners were decided by the competent authority within the parameters set out under Section 3C of the Act of 1956. So far second notification under Section 3A of the Act of 1956 is concerned, no objections were submitted by the petitioners, and therefore, petitioners cannot have any valid cause of grievance vis-a-vis land which was acquired pursuant to notification (Annex.7). 11. So far second notification under Section 3A of the Act of 1956 is concerned, no objections were submitted by the petitioners, and therefore, petitioners cannot have any valid cause of grievance vis-a-vis land which was acquired pursuant to notification (Annex.7). 11. A glance at Section 3C of the Act of 1956 under the caption "HEARING OBJECTIONS" makes it amply clear that ambit and scope of objections within the four corners of Section 3C of the Act of 1956 is not akin to Section 5A of the Land Revenue Act, 1894 (for short, 'Act of 1894'). According to sub-section (1) of Section 3C of the Act of 1956, objections are tenable only to the extent of use of land for the purpose or purposes mentioned in sub-section (1) of Section 3A of the Act of 1956. Admittedly, the petitioners have not joined the issue with the respondents on the acquisition of land, which is precisely for widening of National Highway No.758, which is a public purpose. Therefore, in these circumstances, challenge thrown to the rejection of the objections pursuant to notification (Annex.2) by the petitioners cannot be countenanced on the anvil of report of technical experts and feasibility determined by the technical experts for widening of National Highway No.758. 12. Allegation of the petitioners that respondents are acquiring their lands and not acquiring the Govt. land or other lands belonging to some other incumbents is absolutely vague, cryptic and unspecific plea which has not been substantiated by furnishing cogent material before this Court. 13. Supreme Court in case of Union of India v. Dr. Kushala Shetty & Ors. [ AIR 2011 SC 3210 ] , while considering the plea of the landowner that alignment of proposed widening of National Highway was manipulated to suit vested interests, out rightly rejected the same in absence of requisite material to substantiate the same. 13. Supreme Court in case of Union of India v. Dr. Kushala Shetty & Ors. [ AIR 2011 SC 3210 ] , while considering the plea of the landowner that alignment of proposed widening of National Highway was manipulated to suit vested interests, out rightly rejected the same in absence of requisite material to substantiate the same. The Court held: "The plea of the respondents that alignment of the proposed widening of National Highways was manipulated to suit the vested interests sounds attractive but lacks substance and merits rejection because except making a bald assertion, the respondents have neither given particulars of the persons sought to be favoured nor placed any material to prima facie prove that the execution of the project of widening the National Highways is actuated by mala fides and, in the absence of proper pleadings and material, neither the High Court could nor this Court can make a roving enquiry to fish out some material and draw a dubious conclusion that the decision and actions of the appellants are tainted by mala fides." 14. While dilating on the methodology, which is to be pressed into service for deciding objections under Section 3C of the Act of 1956 for facilitating issuance of declaration under Section 3D of the Act of 1956 by repealing the contentions of landowners, the Court held: "The only reason assigned by the Division Bench of the High Court for upsetting the well considered order passed by the learned Single Judge negating the respondents' challenge to the acquisition was that declaration under Section 3D(1) was published even before communication of the decision taken by the Competent Authority in terms of Section 3C(2). The process of reasoning adopted by the Division Bench for recording its conclusion appears to have been influenced by an assumption that the objections filed by the land owners had not been decided till the issue of declaration under Section 3D(1). However, the fact of the matter is that the Competent Authority had, after giving opportunity of personal hearing to the objectors, passed order dated 11.10.2005 and rejected the objections. Though, that order was not crafted like a judicial order which is passed by a legally trained mind, the rejection of the representations made by the respondents cannot be faulted only on that ground. Though, that order was not crafted like a judicial order which is passed by a legally trained mind, the rejection of the representations made by the respondents cannot be faulted only on that ground. The Competent Authority did advert to the substance of objections, the details of which have been incorporated in Annexure P- 3 filed before this Court. The concerned officer rejected the same by observing that the land proposed for acquisition is necessary for widening the existing National Highways into four lanes. If the consideration made by the Competent Authority is judged in the backdrop of the fact that a Special Purpose Vehicle was incorporated with the name New Mangalore Port Road Company Limited for implementation of the project known as New Mangalore Port Road Connectivity Project from Surathkal to Nantoor and B.C.Road to Padil along with bypass from Nantoor to Padil, it is not possible to castigate the proved reasons recorded by the Competent Authority for rejecting the objections." 15. The Court has also examined the technical expertise of NHAI and opined that in such matters 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. The Court held: "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 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 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 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 any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained." 16. In this view of the matter, the so-called objections of the petitioners about the alignment allegedly manipulated and maneuvered to suit vested interests is quite alluring but bereft of any substance and as such merits outright rejection. 17. The respondents have also raised a plea that the objection is grossly belated and the same is liable to be thrown away on the ground of delay and laches. As per respondents solely on the ground of delay it cannot be made subject matter of judicial scrutiny in the instant petition. 18. This question has acquired great significance for the reason that no endeavour is made by the petitioners to challenge the acquisition proceedings. The compensation awards have been passed and the petition has been laid belatedly with limited plea questioning the alignment of the road and not acquiring the land equally from the center point of road. There remain no quarrel that once acquisition proceeding is complete and land vests in the State is free from all encumbrances, proceedings becomes final and the same cannot be made subject-matter of challenge by way of writ petition. After passing of the award it is not desirable for the Court to quash the acquisition notification, which is also not the prayer in the instant case. Therefore, in totality, the petitioners are also liable to be non-suited solely on the ground of delay and laches. Apex Court in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. & Ors. Therefore, in totality, the petitioners are also liable to be non-suited solely on the ground of delay and laches. Apex Court in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. & Ors. [ (1996) 11 SCC 501 ] , the Court held: "It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches." 19. Acquisition proceedings in the instant case were mooted at the instance of NHAI in the larger public interest for widening of National Highway No.758 to make it four lane and upon evaluation of the grounds urged in the writ petition to challenge the action of the respondent-NHAI, it is clearly apparent that petitioners have miserably failed to make out a case for interference on the anvil of the provisions of the Act of 1956 and their so-called challenge is based on mere hypothetical and imaginary considerations, which are not legally sustainable and as such no interference in the instant petition is called for.The upshot of above discussion is that, I find no merit in this petition and same is, therefore, dismissed.Writ Petition Dismissed. *******