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2024 DIGILAW 1018 (PNJ)

Kamvin Infra Pvt. Ltd. v. Union of India

2024-07-05

VINOD S.BHARDWAJ

body2024
JUDGMENT : VINOD S. BHARDWAJ, J. CM-10223-CWP-2024 Application is allowed as prayed for subject to all just exceptions. Annexure P-17 is taken on record. Registry is directed to tag the same at an appropriate place with its paging. Main Case: 1. Challenge in the present petition is to the order dated 16.11.2021 whereby proposal for access permission to the property of the petitioner has been denied and order dated 04.03.2022 whereby the respondent accepted to acquire the balance land of the petitioner but at the rates on which land was acquired earlier passed by respondent No.3 being contrary to the law and Un-Constitutional. 2. Learned counsel for the petitioner contends that the petitioner-Company is the owner in possession of land situated at village Bhondsi, Tehsil Sohna, District Gurugram, total measuring 14 kanals 3 marlas as detailed in paragraph No.2 of the petition to the extent of 18/68 th share. The same was purchased by the petitioner-Company in the month of September- 2012 and the mutation thereof, was duly sanctioned vide mutation No.20257. The land is abutting to the National Highway namely Sohana to Gurugram, which is evident from the site plan appended to the petition. 3. The Ministry of Road Transport and Highway had decided to take up the development of the National Highways by constructing the 6 Lane Highway for smooth flow of traffic. An acquisition of land was proposed for establishment and construction of Toll Plaza on NH-248A alongwith, its office and other ancillary building. The said acquired area belonging to the petitioner has been demarcated in Pink Colour in the site plan attached as Annexure P-3 with the present writ petition. 4. It is contended by the learned senior counsel for the petitioner that after acquisition of the said land for construction of toll plaza, the respondent-National Highways Authority of India (NHAI) constructed a boundary wall along the said acquired land which is reflected as Colour Blue in the site plan. The balance 2267 sq. yards of land, which remains under the ownership of petitioner-Company, has been shown in Colour Green as per the said site plan. Counsel contends that on account of the construction of the boundary wall, the petitioner has been denied access to and utilization of the said balance land. The balance 2267 sq. yards of land, which remains under the ownership of petitioner-Company, has been shown in Colour Green as per the said site plan. Counsel contends that on account of the construction of the boundary wall, the petitioner has been denied access to and utilization of the said balance land. He contends that the petitioner has made numerous representations to the respondent- National Highways Authority of India for providing an access; however, the respondents had refused to provide the said access. It was thus proposed by the petitioner that in case the respondents are not providing access to the balance land of the petitioner, due to which it has been rendered unworthy of any utilization by the petitioner, the left out balance land may also be acquired by the respondent- National Highways Authority of India in terms of Sub-Section 7(a) of Section 3G of the National Highways Act, 1956. He makes a reference to the communication dated 18.01.2022 (Annexure P-12) received from the Ministry of Road Transport and Highways, Govt. of India, wherein it has been conveyed by the respondents that subject to the petitioner submitting the proof/details showing that the land has become land locked, the National Highways Authority of India shall acquire the balance land also at the same rates on which the land was acquired by the National Highways Authority of India previously. 5. Learned senior counsel for the petitioner contends that the respondents have failed to dispute the fact that on account of construction of the boundary wall shown in Colour Blue as per Annexure P-3, there is no access to the balance land of the petitioner and the respondent-National Highways Authority of India has raised construction thus blocking every entry point to the balance land of the petitioner. The factum of the land being land locked thus remains undisputed and uncontroverted. He however contends that the stand of the respondents that they would acquire the land only at rates that was applicable on the date when the land was acquired previously is contrary to law since Sub-Section 7(a) of Section 3G of the National Highways Act, 1956 mandates that the market value of the land has to be determined on the date of publication of the notification under Section 3A. 6. 6. Learned counsel appearing on behalf of the respondent- National Highways Authority of India is not in a position to dispute that the land of the petitioner has become land locked as a result of the acquisition of the front portion of the land and by way of construction of a boundary wall. He also does not dispute that a separate access/entry point by way of a service-land or otherwise cannot be made available to the petitioner in view of the impending policies of the National Highways Authority of India and submits that in case any such access is required, the cost for the same is required to be borne by the persons seeking such access. He contends that the respondents is willing to acquire the balance land of the petitioner at the same rate on which the land was acquired previously and that the petitioner would not be entitled to demand the current market value. 7. I have heard the learned counsel appearing on behalf of the respective parties and have gone through the documents available on record. 8. The fact about the front portion of the land of the petitioner having been acquired is not a subject matter of dispute. It is also not disputed by the respondent-National Highways Authority of India that boundary wall around the constructed portion has not been constructed by them. Still further, the respondent-National Highways Authority of India has been repeatedly requested for providing an access as the balance land is now land locked with no access point. Even though respondent was seized of the issue, yet, at no point have they indicated or claimed that there is a separate access to the land of the petitioner. Hence, the factum of the back portion being land locked remain undisputed. 9. Surprisingly, the suggestion for deprivation of access, as suggested by respondent-National Highways Authority of India is either to bear cost of passage or to agree to sell the land at the old rates. This Court is stunned at such a confident response of the National Highways Authority of India which is nothing more than showcasing the weight of the State and over-exploitation of its position of eminence. 10. Acquisition of land by the State has been an act of eminent domain and it is not a case of a voluntarily alienation by a consenting party. 10. Acquisition of land by the State has been an act of eminent domain and it is not a case of a voluntarily alienation by a consenting party. The State cannot be expected to stop the access of an owner to his property and thereafter use it to its advantage and dictate unconscionable terms to the owner to alienate the balance land. This capitalist profiteering at the cost of land-owner would not be permissible in a State governed by Rule of Law. When a landowner’s access to passage is denied by an act of the State or its instrumentalities, the obligation is cast on the State to ensure that the landowner has an access to his land for its utilization and enjoyment. Any act to the contrary should least expect validation from a Court of law. 11. I am hence inclined to accept the prayer sought by the petitioner-Company for acquisition of land by the National Highways Authority of India by assessing the market value of the land on the date of publication of the notification instead of original acquisition for the following reasons: (i) That undisputedly the front portion of the land, which has been demarcated in the site plan with the Colour Pink, has already been acquired by the respondent- National Highways Authority of India and the portion shown in Green Colour as per Annexure P-3 remains un-acquired; (ii) That it is also not in dispute that a boundary wall shown in Colour Blue has already been raised by the National Highways Authority of India and construction of building for office and other activities and Toll Plaza has been initiated by the respondent- National Highways Authority of India; hence, there is no access available to the petitioner to optimally utilize his balance land shown in Colour Green; (iii) That the petitioner cannot be burdened with the cost of acquisition of land so as to seek passage for himself especially when the right of easement and the right to access to his land exist in favour of the petitioner. The exit points had been closed on account of acquisition of front portion land by the National Highways Authority of India and the obligation was thus upon the National Highways Authority of India to examine the said aspect and to sort out the hardships faced by the other land-owners in having access to their land. The exit points had been closed on account of acquisition of front portion land by the National Highways Authority of India and the obligation was thus upon the National Highways Authority of India to examine the said aspect and to sort out the hardships faced by the other land-owners in having access to their land. The National Highways Authority of India cannot claim immunity and escape the requirement to ensure that the persons whose passages are closed on account of an activity undertaken by the respondent-National Highways Authority of India are provided with some means/way to approach their lands for enjoyment and utilization; (iv) That the National Highways Authority of India has already expressed its willingness for acquisition of the balance land after noticing that the said land is land locked which cannot be utilized by the petitioner. However, the said consent has been given with a rider that they would acquire the land at the rate of the previous notification. The above said condition cannot be dictated or enforced by the respondents as such a condition is unconscionable. Sub-Section 7(a) of Section 3G of the National Highways Act, 1956 mandates that payment for acquisition is to be made at the rate as on the date of publication of the notification under Section 3A; (v) That the respondents cannot use their dominant position so as to dictate the terms and the price, to the land owner who is arm twisted and has no equal say. 12. Needless to mention that the utilization of the above said property has been diminished on account of acts that are directly attributable to the National Highways Authority of India itself and that the respondents being an agency and instrumentality of the State is required to fulfill the objective of welfare of the State and should not use its dominant position to dictate arbitrary terms and conditions to the persons who are prejudiced on account of acts and omissions of the respondent-National Highways Authority of India itself. 13. The present writ petition is accordingly allowed with a direction to the respondent-National Highways Authority of India to acquire balance land of the petitioner, shown in Colour Green, as per the applicable laws. The compensation thereof to be given to the petitioner is also required to be determined as per the statutory provisions, as applicable and not at the rates of old acquisition. 14. The compensation thereof to be given to the petitioner is also required to be determined as per the statutory provisions, as applicable and not at the rates of old acquisition. 14. The respondents are directed to ensure that the process of acquisition, by way of issuance of the statutory Notification is initiated in a time-bound manner preferably within a period of two months of the receipt of certified copy of this order, considering that petitioner has no objection to acquisition of land as per law. 15. All other civil misc. applications, if any, stand disposed of.