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Rajasthan High Court · body

2018 DIGILAW 2048 (RAJ)

Ashok Kumar v. Union of India

2018-10-05

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J. These two writ petitions preferred by the petitioners herein involve common questions of facts and law and have been filed to assail the action of the respondent National Highway Authority of India (hereinafter referred to as 'NHAI' for short) in acquiring additional lands from the petitioners' fields which are located adjoining the NH-65 for the purpose of setting up of toll plazas at the questioned locations. 2. The writ petitioners of WP No.4257/2010 own khatedari lands in Khasra Nos.1996/1139 and 1139/1888 village Nimbi Jodhan, District Nagaur whereas, the writ petitioners of WP No.5263/2018 own khatedar lands in Khasra Nos.376, 385, 1018/377, 83, 92, 1078/523, 1079/523 and 523 in village Harima, Tehsil and District Nagaur. 3. The petitioners have set up a case in these writ petitions that while undertaking the work of widening/two-laning with paved shoulders, realignment/bypass and four laning, maintenance, management and operation etc. of National Highway No.65 on the stretch of land from KM 72.600 to KM 112.760 & KM 155.600 to KM 171.450 (Salasar to Nagaur Section), the respondents had acquired lands other than those of the petitioners for setting up of toll plazas and final award has also been passed in that regard. However, while the work of widening was being undertaken, the concerned officials of the NHAI started arbitrarily encroaching upon the petitioners' lands and unofficially conveyed that the toll plazas would be constructed there. Thereupon, these writ petitions were filed by the petitioners with an apprehension that their khatedari lands might be usurped without following due process of law. 4. Interim protection was granted by this Court restraining the respondents from raising construction on the lands of the petitioners without passing a final award of acquisition. During pendency of the writ petitions, final awards for acquisition of the petitioners' lands have been passed with the objective of establishment of toll plazas thereupon by amending the original plan whereunder, lands located elsewhere had been acquired for setting up the very same toll plazas. The petitioners have set up a case in the writ petitions that the NHAI officials modified the original plan with the ulterior objective of giving undue advantage to those landholders and have arbitrarily shifted their attention on to the lands of the petitioners for the purpose of setting up of the very toll plazas for which, suitable lands had already been acquired at both the locations. With these submissions and aspersions, the petitioners have challenged the impugned action of acquisition. 5. During pendency of the writ petitions, numerous additional affidavits were filed on behalf of the petitioners asserting about non-feasibility of setting up of the toll plazas on the petitioners' lands owing to NHAI norms; the distance of the lands in one of the cases is within 10 Kms. from the municipal limits of Nagaur etc. Bonafides of NHAI officials have been seriously questioned by the petitioners in their quest for assailing the impugned acquisition notifications. 6. Shri T.R.S. Sodha learned counsel representing the petitioners vehemently and fervently urged that there is no justification behind the modification which the respondent NHAI has undertaken from the originally sanctioned plan where under, other lands were acquired for setting up of the disputed toll plazas. He fervently urged that as these lands have been acquired after making payment from public exchequer, the NHAI cannot be allowed to arbitrarily change the location of the toll plazas at such a belated stage and thereby, causing grave and serious prejudice to the proprietory rights of the petitioners as guaranteed by Article 300A of the Constitution of India. He contended that the lands of the petitioners which have been subjected to fresh acquisition under the notification dated 12.1.2018 (Annex.7) in W.P.No.4257/2018 and notification dated 24.1.2018 (Annex.11) in W.P.No.5263/2018 are totally unsuitable for setting up of toll plazas and have been selected contrary to the NHAI norms because the distance from these locations to the next toll plaza falls well short of the mandatory limit of 60 Kms. He further submitted that the lands of the petitioners Jagdish Solanki and Others (Writ Petition No. 5263/2018) are located within 10 Kms. from the municipal limits of Nagaur and hence, a toll plaza cannot be set up at the said location. He further urged that the original survey report prepared with the aid of the revenue authorities and the officers of the NHAI cannot be bypassed in this cavalier manner and thus, the impugned action of acquisition should be struck down as being grossly unjust, arbitrary, illegal and perverse. 7. Per contra, Shri Vineet Sanadhya counsel representing the respondent NHAI vehemently and fervently urged that the scope of judicial review in matters of land acquisition under the National Highways Act is extremely limited. 7. Per contra, Shri Vineet Sanadhya counsel representing the respondent NHAI vehemently and fervently urged that the scope of judicial review in matters of land acquisition under the National Highways Act is extremely limited. He contended that when initial survey was undertaken in presence of the PWD officials and revenue authorities, the distances were taken with casual reference to the existing road constructed by the PWD and there were manifest errors in this survey report. It is due to this bonafide error in measurement that initially, other lands were acquired for the purpose of setting up of the toll plazas. He drew the Court's attention to the BPRs/feasibility reports being prepared by the NHAI consultant since the year 2013 onwards and pointed out that the correct location of the toll plazas as per these feasibility reports is falling adjacent to the petitioners' lands and as such, no arbitrariness or malafides can be attributed to the NHAI Officials for undertaking the fresh acquisition. He relied upon the Supreme Court decision in the case of Competent Authority Vs. Barangore Jute Factory & Ors, (2005) 13 SCC 477 and urged that there is no general right to raise objection against acquisition of lands under the National Highways Act as is available under the Land Acquisition Act. He also relied upon the Supreme Court decision in the case of UOI Vs. Kushala Shetty & Ors, (2011) 12 SCC 69 wherein, the Hon'ble Supreme Court held as below:- "24. 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 sub-serve the larger public interest. 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 sub-serve 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." 8. On the strength of these judgments and the facts set out in the reply and the additional affidavits of the NHAI authorities, Shri Sanadhya craved dismissal of these writ petitions. 9. I have given my thoughtful consideration to the arguments advanced at the Bar and have minutely perused the material available on record. 10. Firstly, the submission advanced by Shri Sodha learned counsel representing the petitioners that the lands which had been acquired under the original survey report are more suited for the toll plazas is taken up. 11. It is not in dispute that the requirement to maintain distance of 60 Kms. between two toll plazas in the same section and to maintain a distance of 10 Kms. from the adjoining municipal area is imperative. The specific case which is presented by the respondents in their reply and the supporting documents in this regard is that when the initial survey report was prepared in furtherance whereof, acquisition of other lands was previously made, the authorities of NHAI were misguided by the road distances maintained by the PWD in its plans which were subsequently found to be inaccurate and thus, rectification became necessary. The various survey reports (placed on record with an additional affidavit dated 12.8.2018) prepared by the NHAI consultant from the year 2013 onwards (on which there is no reason to cast any doubt or aspersion), clearly indicate that the toll plazas were always proposed at the mileage abutting the lands owned by the petitioners. The various survey reports (placed on record with an additional affidavit dated 12.8.2018) prepared by the NHAI consultant from the year 2013 onwards (on which there is no reason to cast any doubt or aspersion), clearly indicate that the toll plazas were always proposed at the mileage abutting the lands owned by the petitioners. True it is that the respondent NHAI acquired different lands under the initial notifications dated 31.7.2015, 17.2.2016 and award dated 15.12.2016 but there is no dispute that immediately upon realising the error, fresh acquisition was initiated and notifications have been issued under the NHAI Act for acquiring the petitioners' lands for construction of the two disputed toll plazas. The pertinent allegation of Shri Sodha learned counsel representing the petitioners that the entire exercise in giving up the lands originally acquired for the purposes of constructing toll plazas is malafide and motivated and was aimed at benefitting the owners of these lands who are allegedly influential, is absolutely far-fetched because a categoric statement was made by Shri Sanadhya during the course of the arguments that lands once acquired by the NHAI, cannot be deacquired because the NHAI Act, 1954 or 1988 do not contemplate deacquisition of a land once acquired. This Court was apprised that these lands would be utilized for other purposes. Thus, malafides attributed by Shri Sodha to the NHAI officials for perpetrating the fresh acquisition, are per-se untenable. In the objection submitted by the petitioner Jagdish Solanki and Others to the proposed acquisition, it has been mentioned that their lands are located at a distance of 11 Kms from the municipal limits of Nagaur. Thus, the plea regarding the toll plaza being proposed within 10 Kms. from the municipal limits of Nagaur town falls flat on the ground. Hon'ble Supreme Court while considering the scope of Judicial review in acquisitions under National Highways Act vis-a-vis those under the Land Acquisition Act, in the case of Competent Authority Vs. Barangore Jute Factory and Others., (2005) 13 SCC 477 held as below:- "10.The absence of plan also renders the right to file objections under Section 3C(1) nugatory. In the absence of a Plan, it is impossible to ascertain or know which part of acquired land was to be used and in what manner. Without this knowledge no objections regarding use of land could be filed. In the absence of a Plan, it is impossible to ascertain or know which part of acquired land was to be used and in what manner. Without this knowledge no objections regarding use of land could be filed. Since the objection regarding use of the land had been given up by the writ petitioners, we need not go any further in this aspect. We would, however, like to add that unlike Section 5A of the Land Acquisition Act,1894 which confers a general right to object to acquisition of land under Section 4 of the said Act, Section 3C(1) of the National Highways Act gives a very limited right to object. The objection can be only to the use of the land under acquisition for purposes other than those under sub- section 3A(1). The Act confers no right to object to acquisition as such. This answers the argument advanced by the learned counsel for the NHAI that failure to file objections disentitles Writ Petitioners to object to the acquisition. The Act confers no general right to object, therefore, failure to object becomes irrelevant. The learned counsel relied on the judgment of this court in Delhi Administration vs. Gurdip Singh Uban & Others etc. In our view, this judgment has no application in the facts of the present case where right to object is a very limited right. The case cited is a case under the Land Acquisition Act, 1894 which confers a general right to object to acquisition of land under Section 5A. Failure to exercise that right could be said to be acquiescence. The National Highways Act confers no such right. Under this Act there is no right to object to acquisition of land except on the question of its user. Therefore, the present objection has to be decided independently of the right to file objections. De hors the right to file objection, the validity of the Notification has to be considered. Failure to file objection to the notification under Section 3C, therefore, cannot non-suit the Writ Petitioners in this case." 12. Thus, under the National Highways Act, the land owner has no right to raise objections of general nature against the proposed acquisition of his/her land as opposed to the Land Acquisition Act, which allows for objections of general nature as well. Thus, under the National Highways Act, the land owner has no right to raise objections of general nature against the proposed acquisition of his/her land as opposed to the Land Acquisition Act, which allows for objections of general nature as well. The objections which can be raised in matters of acquisition under the NH Act are limited to allegations regarding use of the land under acquisition for purposes other than those provided under Section 3A (1) of the NH Act. Needless to say that the petitioners have not uttered a single word regarding the land under acquisition being put up for use for purposes other than those specified under Section 3A (1). 13. In this background, this Court is of the firm opinion that the expansive objections of general nature which were raised by Shri Sodha learned counsel representing the petitioners for questioning the acquisition of the petitioners' lands are per-se untenable. Scope of judicial review while examining challenge to acquisition of land for the purposes of construction/widening and development of the National Highways is extremely limited. A challenge to viability of acquisition and feasibility of the alignment of National Highways etc. cannot be entertained by the Courts exercising powers under Article 226 of the Constitution of India as held by Hon'ble Apex Court in the case of UOI Vs. Dr.Kushala Shetty and Others. (2011) 12 SCC 69 . 14. In view of the factual and legal position discussed hereinabove, this Court is of the firm opinion that the petitioners have failed to make out a case calling for interference in the impugned acquisition notifications while exercising this Court's extraordinary writ jurisdiction. 15. Hence, the writ petitions as well as stay applications are rejected as being devoid of merit. A copy of this order be placed in both the files.