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2016 DIGILAW 897 (ORI)

Harihar Swain v. Land Acquisition Officer

2016-10-04

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. 1. In all the cases common question is involved and as such the cases are disposed of by this common order. 2. The matter pertains to acquisition of land by the National Highway Authority of India for building (widening/six laning etc.), maintenance, management and operation of National Highway No.5 on the stretch of land from Km.414.000 to Km.419.200 & Km.0.000 to Km.62.000 (Bhubaneswar-Kolkata Section) and for the said purpose a notification was issued on 3.10.2012 U/s.3(A) of the National Highway Act, 1956 in village Bandalo and Atanga. Kavita Jain, the petitioner in W.P.(C) No.14629 of 2013 has filed a case before the Land Acquisition Officer (NH) & C.A., Khurdha to de-notify her suit Plot No.1403 Ac.1.670 of Bandalo for establishment of a toll gate on the ground that it is a valuable land. The petitioner claims to have purchased the said land to build a small scale unit, the suit land being the only source of livelihood, if acquired, it will lead to great financial hardship, likewise the other petitioners have also made objection against the acquisition of land for the said purpose and to that effect an objection has been filed U/s.3(C) of the National Highway Act, 1956 (herein after referred to as the Act, 1956) but the same has been rejected by the Land Acquisition Officer (NH) & C.A., Khurda vide order dtd.06.06.2013. Being aggrieved the petitioners have filed these writ petitions challenging the order rejecting the objection and the entire acquisition process. 3. Learned counsel for the petitioners while arguing has submitted that the location of the proposed toll plaza at the place of petitioners’ land, i.e. Bandalo is hit by Rule 8(1) of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (herein after referred to as Rules, 2008) since it is within the distance of 10 kilometers from a municipal or local town area limits. It is also violative of Rule 8(2) of the Rules, 2008 since it is within the distance of 60 kilometers of other toll plazas. It is also violative of Rule 8(2) of the Rules, 2008 since it is within the distance of 60 kilometers of other toll plazas. It is not in accordance with Rule 2(1)(o) of the Rules, 2008 which states that a toll plaza means any building, structure or booth made for collection of fee which can be constructed on the highway itself, whereas the opposite party no.2 aims to acquire 20 acres for Bus-Bays and Bus Shelters, Truck-Lay-Bys and Truck-Terminals, markets, restaurants and eating places and other commercial ventures. The available space at the proposed location of 40.5 K.M. is 60 meters which is sufficient for not only a toll plaza which means a building, structure or booth as aforesaid, but also for 16 lanes with medians (@ 3.5 metres per lane) for collection of fees. 4. The National Highway Authority of India (Opposite Party No.2), represented by senior counsel Mr. R.K. Rath, have filed affidavits, one on 11.7.2013 wherein the assertion of the petitioner has been admitted so far as it relates to construction of proposed toll plaza at Km.40.5 which is at a distance of 9.2 kilometers (by road) and 8.2 kilometers (Aerial distance) from the boundaries of Choudwar Municipality/Notified Area Council and as such it has been stated that the proposed toll plaza does not fall within the distance of “5 Km. bar” as incorporated under Rule 8(1) of the Rules, 2008, but subsequently one additional affidavit has been filed by opposite party nos.1 & 2 wherein it has been stated that Manguli toll plaza is situated approximately at a distance of 5 kilometers from Choudwar Municipality area limit and Bandalo is at a distance of approximately 6.2 kilometers from Manguli and as such Bandalo where the toll plaza is proposed to be located is at a distance of approximately 11.2 kilometers from the nearest municipal limits, hence if the existing Manguli toll plaza is shifted to Bandalo then the statutory distance, i.e. 10 kilometer away from Municipality area limit will be maintained. It has further been stated that the toll plaza at Panikoili (at Chainage Km.88.500) is a temporary one, and the same is proposed to be shifted to Chhatabar (i.e. at Chainage Km. It has further been stated that the toll plaza at Panikoili (at Chainage Km.88.500) is a temporary one, and the same is proposed to be shifted to Chhatabar (i.e. at Chainage Km. 103.0) almost at a distance of 14 kilometers from its present location so as to maintain the distance bar, shifting of the toll plaza from Manguli to Bandalo is not being possible due to non-availability of land at Bandalo since the land acquisition process is not advancing due to the interim order passed by this court, land for location/establishing the proposed toll plaza at Bandalo is not available and as such unless and until the interim order of stay granted by this Court is vacated and land acquisition process is allowed to go ahead, the matter will remain stand still. It has further been stated that the opposite parties are duty bound to follow the statutory provision as also other legal provision for locating the toll plazas. In the light of these factual position learned senior counsel representing opposite party – National Highway Authority of India has submitted that since they have already taken decision to shift the location of toll plazas strictly in accordance with the provision of Rule, 2008, as such the writ petition may be disposed of so that the development work may proceed and people in general may not be made to suffer at the cost of the individual. 5. We have heard the learned counsels for the parties at length and examined the materials available on record. Before going into the merits of the case it is relevant to have a discussion of the relevant provisions of the Act, 1956 which have bearing in this case, i.e. Sec.3A, 3C and 3D which reads as follows:- “3A. Power to acquire land, etc. – (1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. (2) Every notification under sub-section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. 3C. (2) Every notification under sub-section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. 3C. Hearing of objections.-(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section. (2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation.—For the purposes of this sub-section, ?legal practitioner? has the same meaning as in clause(i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961). (3) Any order made by the competent authority under sub-section (2) shall be final. 3D. Declaration of acquisition.—(1) Where no objection under sub-section (1) of Section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of Section 3A. (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect: Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded. (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.] 6. The scheme of acquisition enshrined in the above reproduced provisions makes it clear that once the Central Government is satisfied that any land is required for the building, maintenance, management or operation of a national highway or part thereof, then, it shall declare its intention to acquire such land by issuing a notification in the Official Gazette giving brief description of the land. The substance of the notification is also required to be published in two local newspapers of which one has to be in a vernacular language. Any person interested in the land can file objection within 21 days from the date of publication of the notification in the Official Gazette. Such objection is required to be made to the Competent Authority in writing. Thereafter, the Competent Authority is required to give the objector an opportunity of hearing either in person or through a legal practitioner. This exercise is to be followed by an order of the Competent Authority either allowing or rejecting the objections. Where no objection is made to the Competent Authority in terms of Section 3C(1) or where the objections made by the interested persons have been disallowed, the Competent Authority is required to submit a report to the Central Government, which shall then issue a notification in the Official Gazette that the land should be acquired for the purpose or purposes mentioned in Section 3A(1). On publication of declaration under Section 3D(1), the land vests absolutely in the Central Government free from all encumbrances. On publication of declaration under Section 3D(1), the land vests absolutely in the Central Government free from all encumbrances. Sub-section (3) of Section 3D provides that where no declaration under sub-section (1) is published within a period of one year from the date of publication of notification under Section 3A(1), the said notification shall cease to have any effect. By virtue of proviso to Section 3D(3), the period during which any action or proceeding taken in pursuance of notification issued under Section 3A(1) remains stayed by a Court shall be excluded while computing the period of one year specified in Section 3D(3). 7. Certain provisions of Rules, 2008 has also got bearing in this case, i.e. definition of “toll plaza” as contained under Rule 2(o) which speaks that “Toll "plaza” means any building, structure or booth made for collection of fees. Rule 3 contains the provision for levy of fee. Rule 8 contains the provision for location of toll plaza which reads as follows:- “8. Location of toll plaza.-- (1) The executing authority or the concessionaire, as the case may be, shall establish a toll plaza beyond a distance of ten kilometres from a municipal or local town area limits: Provided that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of ten kilometres of such municipal or local town area limits, but in no case within five kilometres of such municipal or local town area limits: Provided further that where a section of the national highway, permanent bridge, bypass or tunnel, as the case may be, is constructed within the municipal or town area limits or within five kilometres from such limits, primarily for use of the residents of such municipal or town area, the toll plaza may be established within the municipal or town area limits or within a distance of five kilometres from such limits. (2) Any other toll plaza on the same section of national highway and in the same direction shall not be established within a distance of sixty kilometres: Provided that where the executing authority deems necessary, it may for reasons to be recorded in writing, establish or allow the concessionaire to establish another toll plaza within a distance of sixty kilometres: Provided further that a toll plaza may be established within a distance of sixty kilometres from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, bypass or tunnel.” The provision of Rule 8 makes it clear that the executing authority or the concessionaire as the case may be, shall establish a toll plaza beyond a distance of ten kilometers from a municipal or local town area limits provided that executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of ten kilometers of such municipal or local town area limits, but in no case within five kilometers of such municipal or local town area limits. Sub-Rule (2) provides that any other toll plaza on the same section of national highway and in the same direction shall not be established within a distance of sixty kilometers. There is no dispute in the factual position in all these writ petitions that the land has been acquired for the public purposes, i.e. for building of the national highways. Sub-Rule (2) provides that any other toll plaza on the same section of national highway and in the same direction shall not be established within a distance of sixty kilometers. There is no dispute in the factual position in all these writ petitions that the land has been acquired for the public purposes, i.e. for building of the national highways. At the stage of Section 3A which gives power to the Central Government to take decision to acquire land for a public purpose for building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land and in order to provide an opportunity to the persons who are to be affected provision has been made U/s.3C to file objection within 21 days against the decision of the Government notified in pursuance to the provision of Section 3A of the Act, 1956 and invoking the provision of Sec.3C the objections have been filed inter alia stating therein the private usages and also the construction of toll plaza, that, according to the petitioners, are not in consonance with the provision of Rules, 2008 which contains procedure for establishing toll plaza for the purpose of collection of toll from the public who are utilizing the said road. The competent authority while deciding the objections has rejected the same vide his order dtd.06.06.2013, but according to the petitioners the provision as contained in Rule 8 of Rules, 2008 has not properly been taken into consideration by the authority while deciding the objection. We have perused the impugned order and after taking into consideration the entire aspect of the matter we are conscious about the fact that the provision as contained under Rule 8 of Rules, 2008 is strictly to be complied with, as per which the toll plaza is to be located within a distance of 10 kilometers of such municipal or local town area limits and without considering the same the order has been passed. It is settled that if any statute is in force, the same has to be complied with and it is the duty of Court of Law or authority vested with power to see that the things should go in accordance with law and if it is contrary, it is the duty of Court of Law/Authority to put the same in right way, i.e. to be done in accordance with law, then only it will be said that rule of Law is prevailing otherwise there will be no meaning of provisions of statute, but while passing the impugned order this aspect has not been taken into consideration, hence the order impugned is not sustainable, accordingly quashed. The affidavit filed on behalf of National Highway Authority it has been stated at paragraph 5 that they have proposed to construct toll plaza at Bandalo which is at a distance of approximately 11.2 kilometers from the nearest municipal area limit, i.e. Choudwar Municipality which has also been endorsed by the Executive Officer, Choudwar Municipality giving declaration therein that the distance of Bandalo is exactly 11.1 kilometer from Municipal Boundary, Choudwar Municipality and as such at the moment the National Highway Authority have decided to establish the toll plaza there which is more than ten kilometers from the municipal area or local town area limit which is the statutory distance. 8. So far as second ground is concerned, any other toll plaza on the same direction should not be established within a distance of 60 kilometers, it has been stated in the said affidavit that the toll plaza at Panikoili is a temporary one and the same is proposed to be shifted to Chhatabar (i.e. at Chainage Km. 103.0) almost at a distance of 14 kilometers from its present location so as to maintain the distance bar and if the toll plaza from Manguli to Bandalo will be shifted, it will be beyond the distance of 60 kilometers, but since the land acquisition process is not advancing, as such the temporary toll plaza is not being shifted at Bandalo. 9. 9. We after taking into consideration the specific stand taken by the National Highway Authority of India in the affidavit filed on 28.9.2016 have found that the grievance raised by the petitioners with respect to non-observance of statutory provision has been redressed, hence all the writ petitions are disposed of with a direction upon the National Highway Authority of India and the other opposite parties who are concerned with the work of acquisition and building of roads in question to strictly follow the provisions of National Highways Fee (Determination of Rates and Collection) Rules, 2008, i.e. the provision of Rule 8(1) and (2) as per the statement made in the affidavit dtd.28.9.2016. The opposite parties are directed to take all exhaustive measures to proceed in accordance with law so that the work in question may be completed at an early date. The interim order of stay regarding further proceeding of acquisition of land in question is vacated. With these observations and directions all the writ petitions are disposed of. In view of disposal of writ petitions all the contempt petitions are dropped.