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2016 DIGILAW 294 (RAJ)

Mahendra Lodha v. Union of India

2016-02-19

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. By way of this petition, the petitioner has questioned legality of notification dated 28/29.4.15 issued by the Government of India under Section 3A of National Highway Act, 1956 (for short "the Act"), intending to acquire inter alia the petitioner's land ad measuring .1014 hectare, comprising Survey No. 2307/1, situated at village-Sanganer, District-Bhilwara. That apart, the petitioner has prayed for restoration of status quo ante in respect of the said land, alleged to have been already taken possession of. 2. The facts relevant are that the Government of India issued a notification dated 8.1.13 under sub-section (1) of Section 3A of the Act intending to acquire the lands including the land ad measuring .2738 hectare comprising Survey No.2307, located in village-Sanganer, for the purpose of widening of National Highway No.758, from 87+250 km. to 115+000 km., Bhilwara to Ladpura Section. Aforesaid land was ultimately kept out of acquisition as no declaration was made under sub-section (1) of Section 3D of the Act when the declaration was issued in respect of other lands, on 20.12.13. 3. The petitioner purchased the part of the land of Survey No.2307/1 ad measuring 13 biswas from Smt. Nandu Devi through registered sale deed dated 31.1.14 and accordingly, mutation was effected in favour of the petitioner. 4. The grievance of the petitioner is that despite the fact that the land comprising Survey No. 2307 was kept out of acquisition, the persons/agents of National Highway Authority illegally entered into land of the petitioner and started putting construction material over the same. It is alleged that temporary boundary was removed and illegally and arbitrary the land was taken possession of. The petitioner preferred a suit for injunction under Section 188 of the Rajasthan Tenancy Act, 1955, against the National Highway Authority of India before the Sub Divisional Officer, Bhilwara. The suit preferred by the petitioner was decreed by the Sub Divisional Officer, vide judgment and decree dated 10.3.15 and the injunction was granted in his favour against the National Highway Authority in terms that no construction of the road shall be made on the petitioner's land, ad measuring 13 biswas, comprising Survey No.2307/1 without following the procedure laid down under the law. It is averred that despite injunction granted by the SDO, Bhilwara as aforesaid, the respondent continued to construct the road over the land in question and only metal layer remain to be laid over it. 5. According to the petitioner, after constructing the road as aforesaid, the Government of India has issued a notification under sub section (1) of Section 3A of the Act for acquisition of the land measuring .1014 hectare comprising Survey No.2307/1, which is ex facie illegal and arbitrary. Hence, this petition. 6. A reply to the writ petition has been filed on behalf of the respondent-National Highway Authority of India, taking the stand that vide notification dated 8.1.13, inter alia the land comprising Survey No.2307 was sought to be acquired. It is submitted that at the time of issuance of notification dated 8.1.13, the revenue map was not showing the division of Survey No.2307 into two parts i.e. Survey No.2307/1 and 2307/2 and therefore, the notification was issued showing the land of Khasra No.2307 as one piece of land only. It is submitted that at the time of inquiry conducted prior to issuance of declaration under Section 3D of the Act, the concerned revenue authorities apprised that the land of Survey No.2307 stands divided in Survey No.2307/1 and 2307/2 and thus, this factual position having come to the knowledge of the respondent authorities, the land comprising Survey No.2307 was not included in the declaration issued under Section 3D of the Act. Regarding the possession of the land being taken and the construction of the road being carried out, it is submitted that the contractor, who was assigned the work of construction and was given approved alignment of the road, under the bona fide belief and mistake, laid only soil over the land in question. It is submitted that the road has not been constructed over the petitioner's land till this date. 7. Learned counsel appearing for the petitioner contended that the notification dated 29.4.15 issued by the Government of India is patently illegal and invalid. It is submitted that the notification issued is in absolute contravention of the Scheme envisaged under the Act. Learned counsel would submit that as per provisions of Section 3C of the Act, it is mandatory for the respondent to extend an opportunity of hearing to the persons interested. It is submitted that the notification issued is in absolute contravention of the Scheme envisaged under the Act. Learned counsel would submit that as per provisions of Section 3C of the Act, it is mandatory for the respondent to extend an opportunity of hearing to the persons interested. It is submitted that the declaration under sub-section (1) of Section 3D of the Act, could be issued if either any objection is not made or the objections made are disallowed by the competent authority and it is only after issuance of the notification under Section 3D, the land vests in the Government free from all encumbrances and can be taken possession of under Section 3E of the Act. Learned counsel would submit that the action of the respondent in taking possession of the land even before initiating the land acquisition proceedings by issuing notification under Section 3A of the Act, vitiates entire proceedings and therefore, the impugned notification deserves to be quashed. Learned counsel submitted that notification dated 28.4.15 qua Survey No.2307/1 is merely an empty formality and has been issued to validate the invalid action of the National Highway Authority of India. Learned counsel urged that the proceedings sought to be taken is total farce inasmuch as, the possession of the land has already been taken illegally and the road has been constructed over it with only metal layer remaining to be laid over and thus, the stand sought to be taken by the respondents that no road has been constructed is false to their knowledge. 8. On the other hand, the counsel appearing for the respondents, reiterating the stand taken in the reply, submitted that the factum of division of Survey No.2307 in two parts i.e. Survey No.2307/1 and 2307/2 having come to the knowledge of the respondents, the land comprising Khasra No.2307 was not included in the notification dated 20.12.13 issued under Section 3D of the Act. Learned counsel submitted that the land acquisition proceedings in respect of the land in question comprising Survey No.2307/1 was initiated by issuing a fresh notification dated 28.4.15 under Section 3A of the Act and the land of the petitioner shall be acquired and taken possession of strictly in accordance with law. Learned counsel submitted that the land acquisition proceedings in respect of the land in question comprising Survey No.2307/1 was initiated by issuing a fresh notification dated 28.4.15 under Section 3A of the Act and the land of the petitioner shall be acquired and taken possession of strictly in accordance with law. Learned counsel submitted that it is only on account of the bona fide error on the part of the contractor undertaking the construction of the road, the soil was laid over the land of the petitioner as well, however, no road has been constructed till this date. Learned counsel submitted that the petitioner shall not be deprived of his possession over the land in question and no construction of the road shall be undertaken over it, in defiance of the provisions of the Act. Learned counsel submitted that the no objection was raised by the petitioner against the proposed acquisition in terms of provisions of Section 3C of the Act and the declaration regarding the acquisition of land under Section 3D of the Act, has already been made vide notification dated 24.9.15. 9. I have considered the rival submissions and perused the material on record. 10. Indisputably, the land sought to be acquired vests absolutely in the Central Government free from all encumbrances only after the declaration of acquisition under Section 3D of the Act, is made by issuing notification in the official gazette. Further, by virtue of provisions of Section 3E of the Act, where the land vests in Central Government under subsection (2) of Section 3D and the amount determined by the competent authority under Section 3G with respect to such land, has been deposited under sub-section (1) of Section 3H with the competent authority by the Central Government, the notice is required to be issued to the owner as well as any other person who may be in possession of the land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within 60 days of the service of the notice. It is only when any person refuses or fail to comply with any directions made under sub-section (1) of Section 3E as aforesaid, the competent authority can apply to the Commissioner of Police or the District Collector, as the case may be, to enforce the surrender of the land to the competent authority or the person authorised by it. 11. Admittedly, the petitioner's land comprising Survey No.2307/1 was not included in the notification dated 8.1.13 issued by the Government of India under sub-section (1) of Section 3A of the Act but then, the fact remains that the land comprising Survey No.2307 which stands bifurcated in Survey No.2307/1 and 2307/2, was included in the notification issued as aforesaid. It is also not in dispute that on coming to know about the division of the Survey No.2307 into Survey No. 2307/1 and 2307/2, the land comprising Survey No.2307 included in the notification dated 8.1.13 issued under sub-section (1) of Section 3A of the Act, was excluded from the acquisition proceedings, while issuing the declaration under Section 3D of the Act. In this view of the matter, the respondents could not have interfered with the possession of the petitioner over the land in question. 12. But then, it is the specific stand of the respondents that the possession of the petitioner's land was never taken by them, however, since the alignment of the construction of the highway had already been given to the contractor, on account of bona fide mistake on his part, the work of laying soil over the land in question, was undertaken, but the road has not been constructed till this date. In the considered opinion of this court, on account of wrongful action of the respondents if any loss is caused to the petitioner, it is always open for him to claim damages/compensation for the same, but then, on account of such action, the land acquisition proceedings initiated by the respondents by issuing the notification dated 28.4.15 under subsection (1) of Section 3A for acquiring the land according to the procedure laid down, cannot be set at nought. Suffice it to say that notwithstanding the action on the part of the respondents in undertaking the work of construction of road over the petitioner's land allegedly under the bona fide mistake, being illegal, the action of the respondents in taking the proceedings for acquisition of the land under the provisions of the Act in respect of the land in question, is well within their jurisdiction and shall not stand vitiated merely because, it was preceded by an illegal action in taking possession thereof, without following the procedure laid down. 13. According to the respondents, the possession of the petitioner over the land in question stands restored and they have no intention to take possession thereof in defiance of the provisions of the Act and therefore, no further directions are required to be issued by this court in the matter. The petitioner shall be at liberty to claim damages for loss, if any, suffered by him, on account of the action of the respondents in undertaking the construction work over the land in question, without acquiring the same in accordance with law. 14. For the aforementioned reasons, the writ petition lacks merits, it is hereby dismissed with the observations as above. No order as to costs.