1. The present writ petitions are decided finally with the consent of learned counsel for the parties.
2. These three writ petitions have been filed by the petitioners against the Notification dated 07.04.2017 and order dated 13.09.2017.
3. The learned counsel for the petitioner at the outset submitted that the challenge in these writ petitions is confined to the order passed on 13.09.2017
and as such, no arguments have been advanced challenging the Notification dated 07.04.2017.
4. For deciding the present controversy, S.B. Civil Writ Petition No. 541/2018 (Ratan Lal Vs. Union of India & Ors.) is taken as lead case by this
Court and as such, the facts pleaded in the said writ petition are taken note of.
5. The petitioner is a resident of village Jojro Ka Kheda, Tehsil Gangrar, District Chittorgarh and has agricultural lands bearing Khasra Nos. 61, 312,
313 and 314. The petitioner has pleaded that the non-petitioner authorities in view of the Golden Quadrilateral Project for construction, management of
4 (four) land road had published a Notification under Section 3A(1) of the National Highways Act, 1956 (for short ‘the Act of 1956’
hereinafter) dated 02.04.2001 and the same was also published in local newspapers on 20.04.2002 and 21.04.2002 respectively. The different persons
feeling aggrieved against such acquisition had filed objections and later on Notification under Section 3D under the Act of 1956 was forwarded on
20.06.2002. The Land Acquisition Officer passed interim order for compensation and then, finally the Notification under Section 3D of the Act, 1956
was published in the Gazette of India on 01.11.2002 and the award dated 10.03.2003 was also passed.
6. The petitioner has pleaded that subsequent to the acquisition of the land by the non-petitioner authorities - NHAI by letter dated 10.12.2003
requisitioned the competent authority for further acquisition of land for the purpose of setting up a toll plaza on NH 79 at Kms 163 + 650 and in view
of the mutual consent, Notification under Section 3D was said to be dispensed with.
7. The petitioner has pleaded that after acquisition proceeding was over, with the passage of time, the population of the village increased and the entire
village Jojro Ka Kheda developed and the land of the petitioner was also converted to commercial use and the petitioner started running his business
thereupon.
8. The petitioner has pleaded that the non-petitioner authorities in order to deprive the petitioner and other agriculturists/residents of village, published a
Notification in the local newspaper for acquisition of land and the Land Acquisition Officer accordingly directed the Tehsildar for conducting a survey.
The petitioner has placed on record a copy of the order dated 27.02.2012 to the same effect.
9. The petitioner has pleaded that the villagers made a representation to the authorities that in the garb of acquisition of land, the land of the villagers
including that of the petitioner was acquired for ulterior motives and as such, representation made by the villagers including the petitioner, was said to
be submitted to the authorities. The petitioner has pleaded that in view of the widespread anger and rallies taken out by the local residents, the said
proposal was not acted upon by the non-petitioners.
10. The petitioner has pleaded that after more than 5 years, the Notification, for the ulterior motives, was published under Section 3A(1) of the Act of
1956 in Gazette of India on 07.04.2017 for acquisition of land for the purpose of expansion of present 4 (four) lane road to 6 (six) lane and for setting
up of additional toll plaza at 151.000 kms to 159.000 kms.
11. The petitioner has pleaded that a detailed objection was submitted and a specific objection was taken therein that the authorities are acquiring the
land in a clandestine manner for setting up of a toll plaza. It is further said to be pleaded in the objection that the land earlier acquired was more than
sufficient for the purpose of expansion of the present 4 (four) land to 6 (six) lane and for setting up of additional toll plaza and the additional acquisition
of land, was not required.
12. The petitioner has pleaded that after objection being submitted, the competent authority, without due consideration of the objection, passed the
impugned order dated 13.09.2017. The order passed by the competent authority is reproduced hereunder:-
“13-09-2017
3 , 0 79
,
/-
( )
13. The petitioner has pleaded that the competent authority had called for report from the non-petitioner Tehsildar on the objections of the petitioner,
which was duly was submitted by the Tehsildar and it was specifically mentioned therein that the toll plaza was already existing on 6-6 lane and the
excess land was also available, thus the acquisition of land was not necessitated. The petitioner has placed on record a copy of the report of the
Tehsildar as Annexure-8. The said report is reproduced here as under:-
“ 0 0 0
,
-
.. .
- / /-79/ 23/2017
13.6.2017 , -
1- ( ) 541/2002
61 0.12 312 0.05 , 313 0.05 , 314 0.04
2- 61 0.28 0.14
10.1.2017 0.13 0.01
3- 74/2003 37
0.03 , 75/2003 48 0.030 , 0 0 76/2003 49 0.09 60
0.02, 0 0 77/2004 61 0.01, 312 0.01, 0 0 78/2003 318 0.01, 321 0.01, 322 0.20,
323 0.10 6-6
4- 500
50
, . .
79
5- 5.7668
6-
..
7- 61 0.22 1/2 79 ( / )
,
/-
..
0
14. The petitioner has pleaded that after rejecting the objections, a Notification under Section 3D of the Act of 1956 dated 24.11.2017 was published
on 14.12.2017. The petitioner feeling aggrieved by the order passed by the competent authority has filed the present writ petition.
15. Learned counsel for the petitioner has made the following submissions to support the case of the petitioner:-
(i) That a detailed objection was filed against the Notification under Section 3A(1) of the Act of 1956 but the competent authority, without considering
the objections of the petitioner, rejected the said objection in a hot-haste manner. Learned counsel submitted that Section 3C of the Act of 1956
mandatorily requires to provide the objector an opportunity of being heard either in person or by a legal practitioner and after hearing all the objections
and making such further inquiry, as the competent authority deems necessary, the order is required to be passed while dealing with the objections. The
learned counsel argued that the competent authority, without considering the objections in an objective manner, passed the impugned order on surmises
and conjectures and rejected the objections by unreasoned order;
(ii) Learned counsel argued that the competent authority once was apprised by the Tehsildar by sending a report, the competent authority ought to
have looked into the said report and the entire facts ought to have been considered before deciding the objections of the petitioner;
(iii) Learned counsel argued that the impugned order dated 13.09.2017 has been passed on a wrong premise and only by holding that the land in
question is required for public purpose, the objections of an objector cannot be brushed aside. Learned counsel further argued that the petitioner had
not prayed for any compensation in the objections submitted by him and the competent authority has decided the objections by keeping in mind that
adequate compensation can be paid to the petitioner;
(iv) Learned counsel argued that the authority, who is vested with the power to hear and decide the objections as per Section 3C of the Act of 1956
has to act in a proper and vigilant manner, as sub-section (3) of Section 3C of the Act of 1956 makes the order of competent authority under Section
(2) as a final order. Learned counsel argued that the competent authority cannot act in a mechanical manner and it must pass a reasoned order as
nature of order has a vital impact on the interest of a person, whose land is sought to be acquired;
(v) Learned counsel for the petitioner Mr. Abhinav Jain submitted that the Apex Court as well as this Court has decided several cases where the
authorities have been directed to decide the objections of an objector in proper manner by speaking order and if the objections are not dealt with in
proper manner by passing a speaking order, such order becomes vulnerable in the eyes of law;
(vi) Learned counsel has placed reliance on the following judgments:-
(1) 2018 (8) SCC 443 - Central Board of Trustees Vs. M/s Indore Composite Pvt. Ltd. (para Nos. 13, 14 and 15)
(2) 2012 (2) SCC 25 - Kamal Trading Private Limited Vs. State of West Bengal & Ors. (para Nos. 13, 15 & 28)
(3) AIR 2010 SCW 5715 â€" M/s Kranti Associates Vs. Masood Ahmed (para Nos. 15, 18 to 51)
(4) AIR 2011 SCW 5356 â€" K.T. Plantation Vs. State of Karnataka
(5) 2017 (4) WLC (Raj.) 685 â€" Narayan Ram Vs. The State of Rajasthan
16. The respondent No.2 has filed reply to the writ petition wherein the respondent No.2 has raised preliminary objections. The respondent has
pleaded that initially a Notification dated 02.04.2002 was issued under Section 3A(1) of the Act of 1956 where, the land was sought to be acquired for
construction/laying of four lane National Highway No. 79 on Bhilwara to Chittorgarh section and finally the proceedings were culminated into a
Notification dated 20.06.2002 under Section 3D of the Act of 1956 and the consequential award under Section 3G under the Act of 1956.
17. It is also pleaded that even at the time of laying of four lane National Highway No.79, the toll plaza (for the section in question) was required to be
set up under the concession agreement at Jojro Ka Kheda. It is submitted in the reply that right from the beginning the said toll plaza had been a 12
lane toll plaza, which means that the approaching six lanes on either side would flare out to six toll booths respectively with the intent of reducing
vehicular congestion during the process of toll collection.
18. It is submitted in the reply that in the year 2012, a policy decision was taken to widen the said highway section from four lane to six lane and after
exercise of data collection, NHAI entered into a Concession Agreement dated 09.12.2016 with the private company for six laning of Kishangarh-
Udaipur-Ahmedabad Section (Gulabpura to Chittorgarh by-pass). The respondent has pleaded that for setting up the toll plaza so as to accommodate
six lanes of vehicular traffic would require the land area of 500 (length) X 200 (breadth) meters and due to taper boundary of the pre-acquired land, it
became necessary for the respondents to acquire additional land so as to meet the shortfall.
19. The respondent has pleaded that the Indian Road Congress has laid down guidelines for the purpose of setting up of toll plazas and land should be
acquired to accommodate traffic on toll booths for projected perk hour traffic of 20 years. The respondent has pleaded that as per the Indian Road
Congress Guidelines width of each toll lane has to be minimum 3.2 meters except for the lane for over dimensional vehicles, for which the width has to
be 4.5 meters. The respondent has further pleaded that to meet the requirement of width of 3.2 meters for each toll booth and the width of toll booth
for over dimensional vehicle is taken to be 4.5 meters and as a result of which the wing span/area of the toll booth along with adjoining
drainage/pavement line, spreads to more than 460 meters.
20. The respondent has further highlighted the fact that the Indian Road Congress requires for seamless transition from the highway lane to the toll
lane, a flare-in ration of 1 in 10 so as to ensure enough space for vehicles on the six lanes to systematically align and pass through the 20 (10+10) toll
booths.
21. The respondent by placing reliance on the guidelines has justified the acquisition and further laid emphasis that toll booths dealt with reasonably
large amount of cash and as such it was required in the interest of security to have the entire toll plaza area cordoned-off and fenced. It is submitted in
reply that the petitioner’s land gets squeezed between the highway land/toll area boundary on one side and railway boundary wall on the other
hand, thus leaving no right of ingress-egress for the petitioner’s land. It is further pleaded in the reply that the toll plaza layout plan reveals that
unless the land in question is acquired, it is impossible to develop the toll plaza in accordance with the IRC directives.
22. The respondent No.2 has further pleaded in the reply that the reasons behind acquisition or correctness of the detailed plan by the respondents
may not be examined by this Court as this Court would not like to venture into the assessment of feasibility. The respondent No.2 has further pleaded
in the reply that the competent authority has take into account the objections so filed by the petitioner and considering the nature of the project for the
purpose for which the land is acquired, the objections were rightly rejected by the competent authority.
23. Learned counsel appearing for the respondent No.2 submitted that the objections which are filed by the petitioners, were in fact reiteration of the
objections which were filed in respect of the earlier acquisition, which got concluded in the year 2002. Counsel submitted that no specific objection
was taken by the petitioner and it was nowhere highlighted that the land in question was not required for expansion of toll plaza and how the land
which was already available, could be sufficient. Counsel submitted that no specific dimensions were given and only objection raised to acquire the
land on the ground of taking away bread and butter of the petitioner, the objections so filed were without any substance and as such counsel submitted
that the competent authority has rightly passed the order rejecting the objections.
24. Counsel further argued that scope of judicial review in acquisition matters is very limited and if the court finds the acquisition to be ex-facie
contrary to the mandate of law or if the acquisition is tainted due to malafides, the court can interfere in such situation.
25. Counsel for the respondent has placed reliance on the judgment of the Apex Court in Union of India Vs. Dr.Kushala Shetty & Ors. Reported in
(2011) 12 SCC 69.
26. Learned counsel for the petitioner in rejoinder submitted that extra land was already acquired by the respondents, as is evident from the document
filed along with the rejoinder. Counsel further argued that if reasons are not assigned by the competent authority, the order becomes vulnerable and as
such he has placed reliance on the judgment of Karnataka High Court passed in Miss Bernadette Fernandes & Ors. Vs. Lt. Col. Roche Antony &
Ors. [W.A. Nos.260/2012 & 451/-460/2013] and connected matters decided by order dated 21.02.2013.
27. I have heard learned counsel for the parties.
28. The primary question which this court is required to consider is with respect to the scope of objections which are required to be decided by the
competent authority under sub-section (2) of Section 3C of the Act of 1956. It would be appropriate to quote Section 3C of the Act, 1956, which reads
as follows:-
“3C Hearing of objection. â€" (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 grounds thereof and the competent
authority shall give the objector an opportunity of being heard, either in persons 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. â€" 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.â€
29. A bare perusal of sub-section (2) of Section 3C of the Act, 1956 reveals that the competent authority after receiving the objections filed under
sub-section (1) will give the objector an opportunity of being heard, either in person or by a legal practitioner and after hearing such objections and
making further enquiry, if it intends to do so, the competent authority may allow or disallow the objections.
30. This court finds that objections which are filed under sub-section (1) of Section 3C of the Act, 1956 are required to be taken into consideration by
the competent authority and the objections are either to be allowed or disallowed. The order which is required to be passed while deciding the
objections cannot be a judicial order. The said order which is passed by the competent authority cannot be an order like the court passes the order by
a legally trained mind. The order of the competent authority has to take into account the objections which are raised by the objector. Allowing or
disallowing the objections by competent authority must reflect that the objections are sustainable or not sustainable.
31. The perusal of decision for the competent authority dated 13.09.2017 reveals that it has recorded a finding that the land in question is required for
six lanes and further the toll plaza is also to be accordingly upgraded or constructed. The reasoning assigned by the competent authority while passing
the order is in respect of the requirement of the respondents with regard to expansion/widening of road as well as for establishment of toll plaza.
32. The submission of learned counsel for the petitioner that the petitioner while filing objection had taken several pleas and objected the acquisition on
various grounds, this court finds on a close scrutiny of the objection raised by the petitioner that the main thrust of the petitioner was in respect of
suitability of the land as the Government land was said to be vacant in the same vicinity and toll plaza could have been established there. This court
further finds that the petitioner-objector had also raised objection that on the both sides of the road, the villagers had set up their own business or had
constructed houses and as such while dismantling such constructions, the proceedings of acquisition were not justified.
33. This court finds that the petitioner had specifically pleaded in his objections that the only source of livelihood of the petitioner was due to the
business which had set up on the land in question which was said to be acquired and the respondents by taking such actions had deprived good number
people from the same village of their livelihood, this court further finds that the petitioner had taken objection with regard to pollution and live stock of
the village to be affected of the said acquisition.
34. This court without commenting or expressing any views on the nature of objections filed by the petitioner, finds that the competent authority while
passing the order, has taken into account that construction of six lanes road and establishment of toll plaza was required and as such the objection of
the petitioner has not been found to be sustainable.
35. So far as submission of the learned counsel for the petitioner that there is a total non-application of mind by the competent authority as no plea was
raised with respect to compensation in the objections filed, this court finds that the competent authority in the impugned order has observed that
adequate compensation can be given to the objectors and necessary action would be taken at the relevant time and the use of words ‘with respect
to pay compensation’ would not make the order vulnerable and as such on the issue of petitioner’s entitlement to get compensation, the order
passed by the competent authority will not result into any violation, as required under Section 3C of the Act of 1956.
36. The submission of learned counsel for the petitioner that the Apex Court in the case of Central Board of Trustees Vs. M/s.Indore Composite
(supra) has laid down the law that every authority who passes the order should ensure to pass order which must contain the reasons in support of the
findings and the narration of facts should also be made in the said order. This court finds that the judgment passed by the Apex Court is in respect of a
judicial order which was passed and accordingly the Apex Court has emphasized on the courts to pass reasoned order in every case.
37. The submission of the petitioner that the Apex Court in the case of M/s.Kamal Trading Pvt. Ltd. (supra) has laid down the law that objections
which are filed under Section 5A of the Land Acquisition Act, 1894 are required to be dealt with by the Land Acquisition Officer by assigning
reasons, this court finds that the Apex Court has laid down principle that the right given to an objector under Section 5A of the Land Acquisition Act,
1894 to object to the acquisition proceedings is not an empty formality and is a substantive right and report should disclose application of mind and will
depend on facts & circumstances of each case. The para-21 of the judgment, being relevant for the present purpose is reproduced hereunder:-
“21. By no stretch of imagination, it can be said that the Second Land Acquisition Officer had applied his mind to the objections raised by the
appellant. The above-quoted paragraphs are bereft of any recommendations. The Second Land Acquisition Officer has only reproduced the
contentions of the officers of the Acquiring Body. The objections taken by the appellants are rejected on a very vague ground. Mere use of the words
‘for the greater interest of public’ does not lend the report the character of a report made after application of mind. Though in our opinion, the
declaration under Section 6 of the LA Act must be set aside because the appellant was not given hearing as contemplated under Section 5A(2) of the
LA Act, which is the appellant’s substantive right, we must record that in the facts of this case, we are totally dissatisfied with the report
submitted by the Second Land Acquisition Officer. His report is utterly laconic and bereft of any recommendations. He was not expected to write a
detailed report but, his report, however brief, should have reflected application of mind.…….â€
38. This court finds that while the order in the present case has been passed by the competent authority after making due compliance of sub-section
(2) of Section 3C of the Act of 1956 as the authority is required to either allow or disallow the objections.
39. The reliance placed by learned counsel for the petitioner on the judgment of the Apex Court in the case of M/s.Kranti Associates Pvt. (supra) is
also to the effect that the administrative decisions must record reasons. The Apex Court in para-51 of the judgment has summarized the requirement
of passing a reasoned order as it serves the principles of natural justice. This court finds that the said judgment cited by the learned counsel for the
petitioner will be of little help in the present facts of the case.
40. This court finds substance in the submission for the learned counsel for the respondents that scope of judicial review in acquisition matters is very
limited and the area of interference can only be in two situations i.e. ex-facie contrary to mandate of law or tainted due to malafides.
41. The Apex Court in the case of UOI Vs. Dr.Kushala Shetty & Ors. (supra) has also considered importance of National Highway Authority in
respect of development and maintenance of national highways and nature of order passed while deciding objections under Section 3C(2) of the Act,
1956. The Apex Court has observed that the courts are not equipped to decide upon viability and feasibility of a particular project and whether
particular alignment would subserve larger public interest. The portions of the judgment, relevant for the present purpose, are reproduced hereunder :-
“23. The only reason assigned by the Division Bench of the High Court for upsetting the well considered order passed by the learned Single Judge
negating the respondents’ challenge to the acquisition was that declaration under Section 3D(1) was published even before communication of the
decision taken by the Competent Authority in terms of Section 3C(2). The process of reasoning adopted by the Division Bench for recording its
conclusion appears to have been influenced by an assumption that the objections filed by the land owners had not been decided till the issue of
declaration under Section 3D(1). However, the fact of the matter is that the Competent Authority had, after giving opportunity of personal hearing to
the objectors, passed order dated 11.10.2005 and rejected the objections. Though, that order was not crafted like a judicial order which is passed by a
legally trained mind, the rejection of the representations made by the respondents cannot be faulted only on that ground.
24. to 27. XX XX XX
28. 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 projects, if it is found to be ex-
facie contrary to the mandate of law or tainted due to malafides. In the case in hand, neither any violation of mandate or the 1956 Act has been
established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.â€
(Emphasis supplied.)
42. This court finds that the order impugned passed in the instant case cannot be termed as contrary to law and as such this court would not like to
interfere in the present batch of writ petitions and accordingly all the petitions are dismissed.
