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2019 DIGILAW 951 (GAU)

Mrigen Borthakur v. Union of India

2019-08-28

A.K.GOSWAMI, MANISH CHOUDHURY

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JUDGMENT : A.K. Goswami, J. Heard Mr. R. Dubey, learned counsel for the appellants. Also heard Mr. T.C. Chutia, learned State counsel, Mrs. V.L. Singh, learned standing counsel, National Highway & Infrastructure Development Corporation Limited (NHIDCL) and Ms. N. Bordoloi, learned standing counsel, Revenue & Disaster Management Department. 2. Challenge in this writ appeal is to the judgment & order dated 02.08.2018 passed by the learned Single Judge in WP(C) No.4319/2014 dismissing the said writ petition. The writ petition was filed by 66 writ petitioners. The present appeal is preferred by 27 writ petitioners as appellants. 3. Subject matter in dispute, essentially, lies on the question as to whether the fourlane National Highway-37 should be constructed through Dergaon Town or whether the said Highway is to be constructed through a bypass, as was proposed in Dergaon Master Plan. The process for starting the construction of the National Highway was started sometimes in the year 2005-06 and till now the Highway has not seen the light of the day as construction of the bypass along the southern side of Dergaon Town could not be commenced and it remained a non-starter due to objections raised by cross-sections of the people. The bypass was to be constructed along the southern side of Dergaon Town from Km 426.810 and ending at Km 437.450. As per the Master Plan in force, if the bypass is constructed, for the length of 11.64 Kms, more than 600 Big has of land are required to be acquired. On the other hand, if the National Highway is taken through Dergaon Town, then only 23.34 Big has of patta land are required to be acquired. 4. In the affidavit of NHIDCL, it is stated that as per the original Project Report, it was proposed to construct the four-lane National Highway by expanding National Highway37 passing through Dergaon Town and the same was also accepted by the National Highway Authority of India (NHAI). The same had to be changed subsequently in view of the zoning regulations of Dergaon Master Plan, which led to proposal being considered for constructing a bypass along the southern side of Dergaon Town. 5. The learned Single Judge at Paragraphs 19, 20 & 24 observed as follows:- "19. The same had to be changed subsequently in view of the zoning regulations of Dergaon Master Plan, which led to proposal being considered for constructing a bypass along the southern side of Dergaon Town. 5. The learned Single Judge at Paragraphs 19, 20 & 24 observed as follows:- "19. What can be culled out from the deliberations as noted above is that initially the decision was to have the four-laning of the National Highway through Dergaon town by widening the existing NH-37. But after preparation of the Master Plan, it was decided to construct a bypass on the southern side of Dergaon town which would be in conformity with the Master Plan and the four-laning would be routed through the bypass. At that stage, it was not visualized that this proposal would run into serious resistance from the farmers as well as from organizations agitating for the rights of the farmers. The objections were so severe that no survey work could be carried out. Thereafter, meetings were held with various stakeholders wherein view expressed by the majority was that four-lane should be through Dergaon town by widening the existing NH-37. Various reasons have been given to support the said view including cost benefit analysis of the two proposals, one proposal being having four-laning through Dergaon town and the other being having four-laning along the southern bypass. After several rounds of discussions, it seems that the public as well as the authorities have veered around to the proposal to have the four-laning through Dergaon town. The authorities have also indicated that if necessary, Master Plan can be amended. 20. While this debate is going on, more than a decade has passed without any tangible work being undertaken for four-laning of the National Highway in Dergaon area. An infrastructural project of such importance has got bogged down in public debate and litigation because of which project has not seen the light of the day. This will inevitably lead to price escalation. Such delay in the implementation of a project of national importance is certainly not in the public interest. Therefore, continuing with the present proceeding any further would not be justified. 24. This situation cannot be allowed to continue for an indefinite period. Already the project has suffered huge delay because of the foregoing reasons. Further delay is not in the public interest and should not be permitted. Therefore, continuing with the present proceeding any further would not be justified. 24. This situation cannot be allowed to continue for an indefinite period. Already the project has suffered huge delay because of the foregoing reasons. Further delay is not in the public interest and should not be permitted. In such circumstances, Court is of the view that the writ petition should not be continued further. No individual right of the petitioners has been infringed in any manner. All that the petitioners have done is that they have been successful in stalling the project of national importance for years together. Though dismissal of the writ petition with cost would be in order, yet, considering the confusion and delay, Court is of the view that following directions are required to be issued and are accordingly issued:- (1) Chief Secretary to the Government of Assam shall convene a meeting of Additional Chief Secretary, in-charge of PWD and NH; Commissioner and Secretary to the Govt. of Assam, PWD(NH); Commissioner and Secretary to the Govt. of Assam, Urban Development Department; Deputy Commissioner, Golaghat; and competent officials of NHIDCL to discuss and resolve the above imbroglio. If the Chief Secretary feels that participation of any other authority would be necessary, he may involve them in the above meeting. It would however not be necessary to call for public hearing or participation of individuals or public organizations as their views are already known and are on record. Let the meeting be convened within a period of three weeks from the date of receipt of a certified copy of this order. (2) Following such meeting, let final decision be taken regarding fourlaning of NH-37 in the Dergaon stretch, whether it should be through Dergaon town by widening the existing NH-37 or by aligning with the bypass. If it is decided that bypass is not feasible, then necessary steps may be taken for modification of the Master Plan if it is required and considered necessary. (3) Let final decision, one way or the other, be taken within a period of four weeks from the date of the meeting where after necessary steps may be taken to commence the work as further delay in the project cannot be permitted." 6. Mr. (3) Let final decision, one way or the other, be taken within a period of four weeks from the date of the meeting where after necessary steps may be taken to commence the work as further delay in the project cannot be permitted." 6. Mr. Dubey has submitted that in view of the fact that the Master Plan has not been modified, the decision taken by the Chief Secretary in the meeting held on 22.11.2018 is not sustainable in law and that apart, feasibility of the National Highway through the bypass of Dergaon Town has not really been considered though such a direction was implicit in the judgment & order of this Court dated 02.08.2018. It is further submitted that when the decision to construct the bypass was taken long back in the year 2006, at this distance of time merely because there has been some objections raised by some quarters, a decision taken to construct the National Highway through Dergaon Town cannot be justified under any circumstances, more so, when the Master Plan provides otherwise. It is also his contention that the contention advanced on behalf of the respondents that more than 600 Bighas of agricultural land will have to be required if the Highway is constructed through the bypass, is not correct as within that 600 Bighas sizable portion of land is Government land. Dergaon town being a congested Town, a prudent decision has to be taken regarding the construction of the Highway keeping in mind the requirements of the foreseeable future and apparently, this aspect of the matter has been totally lost sight of while passing the impugned speaking order dated 22.11.2018, he submits. He has also referred to a decision of the Hon'ble Supreme Court in the case of R.K. Mittal & Ors. -Vs- State of UP & Ors., (2012) 2 SCC 232 , with particular reference to Paragraph 48 thereof. 7. Mr. Chutia, learned State counsel has submitted that the considered view of the Government is that if the National Highway is constructed through the Dergaon Town, it will usher in all round development of the people and that is why the people in general supports the idea of having the National Highway through Dergaon Town. 7. Mr. Chutia, learned State counsel has submitted that the considered view of the Government is that if the National Highway is constructed through the Dergaon Town, it will usher in all round development of the people and that is why the people in general supports the idea of having the National Highway through Dergaon Town. It is submitted by him that the development cost of the National Highway cannot remain out of focus having regard to the cost of the acquisition involved and this aspect of the matter was also taken into consideration in the speaking order that was passed following the order of this Court. It is submitted that pursuant to the speaking order dated 22.11.2018, steps have been taken to modify the Master Plan and the same is at the last phase of awarding approval of the Government and, therefore, in the circumstances of the case, no interference is called for with regard to the judgment of the learned Single Judge. 8. Mrs. V.L. Singh has submitted that though in the affidavit filed in the writ petition, stand was taken that there is no change in the stand as in 2006, which is constructing the National Highway through the bypass, subsequent to the decision of the Chief Secretary, it has been decided to construct the Highway through the Town and as a consequence thereof, work had already been awarded for preparation of the Detailed Project Report (DPR) on 19.06.2019. 9. We have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 10. It is significant to note that while the judgment of the learned Single Judge was delivered on 02.08.2018, the present appeal was filed on 10.10.2018, though in a defective form. The defects were removed only on 30.05.2019. In the interregnum, on 22.11.2018, pursuant to the directions of this Court, the Chief Secretary of the Government of Assam had convened a meeting with the representatives of the Urban Development Department, PWD (Building & National Highway) and Executive Director (P) of NHIDCL to resolve the issue. 11. A perusal of the judgment & order of the learned Single Judge would indicate that a final decision was directed to be taken by the Chief Secretary with regard to the construction of the National Highway: whether it should run through the Dergaon Town or a bypass to be constructed. 12. 11. A perusal of the judgment & order of the learned Single Judge would indicate that a final decision was directed to be taken by the Chief Secretary with regard to the construction of the National Highway: whether it should run through the Dergaon Town or a bypass to be constructed. 12. The speaking order of the Chief Secretary reads as follows:- "Speaking Order In deference to Hon’ble Gauhati High Court's order dtd. 02/08/2018 in WP(C) 4319/2014 the undersigned convened a meeting with Principal Secretary to the Govt. of Assam, UDD, Commissioner & Spl. Secretary to Govt. of Assam, PW (B&NH) Deptt., Deputy Commissioner, Golaghat & Executive Director (P) of NHIDCL on 22nd November, 2018 at 10:30 AM in the Conference Hall of the undersigned. The views of the ED(P), NHIDCL were sought regarding 4-laning of NH-37 in the Dergaon stretch, whether it should be through Dergaon town by widening the existing NH-37 or by aligning with the Bypass. Whereupon the ED(P), NHIDCL opined that NHIDCL would prefer the less costly option including cost of land as per the latest Right to Fair Compensation & Transparency in Land Acquisition & Rehabilitation & Settlement Act, 2013 and civil construction cost. During discussions it transpired that Construction of a bypass would result in acquisition of 80.322 Ha (600 Bighas) of land approximately, whereas only 3.125 Ha (23.34 Bighas) of Patta Land will need to be acquired if 4-laning is done through Dergaon Town, besides clearing 7.877 Ha (58.84 Bighas) of Government land which is under encroachment. Further, the acquisition of 80.322 Ha (600 Bighas) would be more time consuming and may escalate the cost of construction. The Deputy Commissioner, Golaghat stated that as per the provision of Right to Fair Compensation & Transparency in Land Acquisition & Rehabilitation & Settlement Act, 2013, the collector should ensure minimum displacement of people, minimum disturbance to infrastructure & ecology and minimum adverse impact on individuals. The 4-laning of NH through Dergaon town will entail less loss & damage in comparison to the 11.48 km of Bypass going across 7(seven) villages. The 4-laning of NH through Dergaon town will entail less loss & damage in comparison to the 11.48 km of Bypass going across 7(seven) villages. The stance of the Urban Development Department is that the inhabitants of Dergaon Town seek construction of 4-lane National Highway through Dergaon town, as it is their contention that it would lead to all round socio economic development of Dergaon town, if the 4 lane is constructed through Dergaon town by widening the existing NH-37 where only 23.34 bighas of patta land will have to be acquired. On the other hand, if the bypass is constructed then about 600 bighas of private land would have to be acquired against which strong resistance has been built up. The Urban Development Department has also stated that the inhabitants of both urban and rural areas of Dergaon have sought for modification/alteration of the Master Plan by striking out the provision of constructing the Bypass. Considering the views put forth by different stake holders, it transpires that 4-laning of NH-37 through Dergaon town will entail less displacement of people, minimum disturbance to infrastructure and ecology and have minimum adverse impact to affected individuals, in comparison to constructing a Bypass across 7 villages and acquiring 600 Bighas of land approximately. Hence, it would be in the fitness of things that the 4-laning of NH-37 in Dergaon stretch should be through Dergaon town. The urban Development Department will take necessary steps for modification of the Master Plan accordingly. Date 22/XI/2018 Sd/- Chief Secretary, Assam" 13. It is not understood why it had taken so much of time to remove the defects in the appeal. In the meantime, substantial developments had taken place. The judgment & order of this Court was implemented by the time the defects came to be removed in the month of May, 2019. Not only that, consequent upon such a decision, steps had also been taken to modify the Master Plan. Liberty was granted by the learned Single Judge that in the event of bypass was not considered feasible, necessary steps could be taken for modification of the Master Plan. 14. Mr. Dubey has laid much emphasis in submitting that there was no consideration with regard to whether the bypass was feasible and rather, the discussion veered around as to whether it would be feasible to have the Highway through Dergaon Town. 14. Mr. Dubey has laid much emphasis in submitting that there was no consideration with regard to whether the bypass was feasible and rather, the discussion veered around as to whether it would be feasible to have the Highway through Dergaon Town. Accordingly, he had submitted that the consideration was not in sync with the directions of the learned Single Judge. 15. We are unable to agree with the submission of Mr. Dubey that the order of the Chief Secretary did not advert to the feasibility of constructing the bypass. The order has to be read as a whole and reading the order as a composite whole would unequivocally demonstrate that the Chief Secretary had considered the pros and cons of having the National Highway through Dergaon Town as well as by the bypass and on such appraisal, had come to the conclusion that the four-laning of the National Highway-37 should be through Dergaon Town. While taking such a decision, it was taken note that construction of Highway through Dergaon Town will entail less displacement of people, disturbance to infrastructure and ecology and have minimum adverse impact to the affected individuals. On due application of mind to relevant consideration, in comparison to constructing a bypass, it was considered that the four-laning of National Highway-37 through Dergaon Town will be a much better option qua construction of the Highway through a bypass. 16. How the Highway should be constructed or in which direction it should go is essentially a matter to be decided by the executive. The decision of the Hon'ble Supreme Court in the case of R.K. Mittal (supra), in our considered opinion, is not applicable to the facts and circumstances of this case. In the aforesaid case, the Hon'ble Supreme Court had emphasised that in the garb of taking a policy decision, the development authority cannot act in violation of the Master Plan, the Regulations and relevant Acts in force as any action taken not in conformity with the above would be an action extra jus. 17. In the present case, the decision to construct the National Highway through Dergaon Town is not sought to be done by disregarding or trampling down the Master Plan in force. The Master Plan is sought to be suitably amended and, as is given to understand, the process of amendment is in the final stage. 17. In the present case, the decision to construct the National Highway through Dergaon Town is not sought to be done by disregarding or trampling down the Master Plan in force. The Master Plan is sought to be suitably amended and, as is given to understand, the process of amendment is in the final stage. Therefore, in the present set of circumstances, the decision cited in R.K. Mittal (supra) is clearly distinguishable. 18. Considering the matter in its entirety, we are of the opinion that no interference is called to the judgment & order dated 02.08.2018 passed by the learned Single Judge in WP(C) No.4319/2014 and accordingly, the writ appeal is dismissed. No cost.