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2017 DIGILAW 2174 (ALL)

PHOOLMATI DEVI v. UNION OF INDIA

2017-09-14

DILIP GUPTA, DINESH KUMAR SINGH I

body2017
JUDGMENT By the Court.—This petition has been filed with a prayer that the respondent-National Highways Authority of India should not demolish the house of the petitioner constructed on Gate No. 214 ad measuring 0.554 hectares in Village-Tehari District Azamgarh without deciding the objections submitted by the petitioner. 2. The notification issued under Section 3A(1) of the National Highways Act, 1956 (the Act) was published in the Official Gazette on 22 December 2013 for acquisition of a large tract of land for widening/four laning, maintenance, management and operation of the National Highway No. 233 on the Indo-Nepal Border to Varanasi. Objections filed under Section 3C(1) of the Act were denied and the declaration was made under Section 3D(1) of the Act on 17 December 2013. 3. It was sought to be suggested by the petitioner that the alignment of the bye-pass should be altered so that the demolition of the constructions raised by the petitioner on the aforesaid land can be avoided. 4. A counter-affidavit has been filed on behalf of the National Highways Authority of India. It has been stated that for widening of the National Highways, M/s. Unique Design Consultation Private Limited was appointed as a Consultant and it is on the basis of the Detailed Project Report (DPR) prepared by the said Consultant that the Bye pass alignment has been made. The Consultant has also stated in regard to Plot No. 214 that it would not be possible to avoid it by changing the alignment. 5. The issue that raises for consideration is whether the alignment of the bye-pass should be changed at the behest of the petitioners merely to avoid demolition of the constructions. Recently a Division Bench of this Court in the case of Shiv Kumar Jaiswal and others v. State of U.P. and others, 2017(4) ADJ 646 (DB), examined as to whether the alignment of a road should be changed merely to accommodate certain persons whose land is sought to be acquired. The Division Bench held that it is for the technical persons to examine such matters after placing reliance upon the decision of the Supreme Court in Mohan Singh Gill and others v. State of Punjab and others, (2015) 8 SCC 345 . 6. The Division Bench held that it is for the technical persons to examine such matters after placing reliance upon the decision of the Supreme Court in Mohan Singh Gill and others v. State of Punjab and others, (2015) 8 SCC 345 . 6. The Supreme Court in Union of India v. Kushala Shetty and others, (2011) 12 SCC 69 , also observed that the Court should not decide the feasibility of a particular project and whether the particular alignment would subserve the public interest or not, can best be examined by the experts. The relevant observations are as follows: “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 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.” 7. It is, therefore, not possible to accept the contention of learned counsel for the petitioner that the alignment of the Bye Pass should be changed. 8. Thus, for the reasons stated above, the petitioner is not entitled to any relief and the petition is liable to be dismissed. 9. The petition is, accordingly, dismissed.