National Highways Authority Of ... vs State Of U.P. And Others
2012 Latest Caselaw 5192 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 28.8.2012
 
Delivered on 17.10.2012
 

 
Case :- WRIT - C No. - 60388 of 2011
 

 
Petitioner :- National Highways Authority Of India And Another
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Raj Kumar Singh
 
Respondent Counsel :- C.S.C.,Apoorva Hajela,D.A.Gupta,D.K. Gupta
 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Abhinava Upadhya,J.

(DELIVERED BY HON'BLE ASHOK BHUSHAN, J.)

Heard Sr R.K. Singh, learned Counsel for the petitioner, Sri D.K. Gupta, learned Counsel appearing for the respondents no. 5 to 12 and Smt. Archna Srivastava, learned Standing Counsel appearing for the State respondents. Counter affidavit and rejoinder affidavit have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being finally decided.

This writ petition has been filed by the National Highways Authority of India and its Project Director challenging the order dated 12.9.2011, passed by the competent authority/Special Land Acquisition Officer, Jhansi by which order, the National Highways Authority of India has been directed to make payment of the amount to the private respondents as per measurement valuation report of National Highways Authority for structures belonging to private respondents situated on the Government land.

Brief facts as emerged from pleadings of the parties are; a notification dated 3.5.2005 under section 3A of the National Highways Act, 1956 (hereinafter referred to as '1956 Act') declaring its intention to acquire land situate in three villages including village Simraudha of district Jhansi for construction of bypass, widening, maintenance and management of National Highway-75 84 km-103 km. (Gwalior Jhansi Section) was issued. The notification included plot No. 788 which was recorded in the name of Indian Grass Land and Forestry Research Institute and plot no. 790 which was recorded in the name of National Research Centre for Agro Forestry. Declaration dated 5.7.2007 was issued under section 3-D of the 1956 Act for acquisition of land which included the aforesaid plots No. 788 and 790. The award was passed by the Special Land Acquisition Officer on 29.7.2008 granting compensation under section 3-G of the 1956 Act to the persons entitled for the compensation. The respondents no. 5 to 12 have their constructions situated on plot nos. 788 and 790. They opposed the attempt of the administration to evict them from acquired land. The respondents no. 5 to 12 also claimed compensation for their constructions situate in the aforesaid plots. A letter dated 20.8.2009 was issued by the Project Director, National Highways Authority of India Gwalior, Madhya Pradesh to the competent Authority, Special Land Acquisition Officer, Jhansi remitting the compensation amount towards Government structures situated in village Simradha. A demand draft dated 20.8.2009 for an amount of Rs. 34,25,066.71 was sent by the Project Director, National Highways Authority of India to the competent Authority. The Project Director stated in the letter that the amount be disbursed on the condition that prospective private recipients of compensation have a valid legal claim over structures for which they are proposed to be compensated and there is no duplication in payment of compensation to any individual. Competent Authority/Special Land Acquisition Officer by letter dated 27.10.2009 returned the demand draft dated 20.8.2009 to the Project Director, National Highways Authority of India Project Implementation Unit Gwalior M.P. Stating that it has already been decided in the meeting dated 5.6.2009 headed by the District Magistrate that compensation for construction situate on the Government land has to be disbursed by the National Highways Authority of India at its own level and the payment of compensation is not be made at level of Special Land Acquisition Officer. Special Land Acquisition Officer again sent a letter dated 4.3.2010 to the Project Director, National Highways Authority of India Gwalior that the compensation for the houses situated on the Government land is to be disbursed at the level of National Highways Authority of India and no steps are to be taken at the level of competent authority/special land acquisition officer. National Highways Authority of India also wrote to the contractor who was carrying the project to make all necessary arrangements for accomplishing of the task of physical removal of the encroachments at his own cost. District Magistrate on 9.11.2010 wrote to the Project Director, Gwalior in reference to the letter dated 15.10.2010 of the National Highways Authority of India for removal of construction by use of police force. The District Magistrate stated in his letter that with regard to payment of compensation for the structures on the Government land, it has already been informed that compensation with regard to structures situated on the Government land, National Highways Authority of India should ensure payment of compensation at its own end. The District Magistrate has further stated in the letter that earlier with regard to construction of N.H. 25, the compensation in respect of structures situated on the Government land was paid at the level of National Highways Authority of India . It was also stated in the letter that the owners whose houses are situated on the Government land have made request for payment of compensation and in the event police force is used without payment of compensation, there shall be law and order problem in the area. The Project Director, Gwalior received a letter from Headquarters of National Highways Authority of India that steps be taken for obtaining an award with regard to compensation of structures situated on Government land in accordance with Section 3-G of the 1956 Act. The Project Director wrote on 17.1.2011 requesting the competent authority for preparing an award under section 3G of the 1956 Act for the structure situated on the Government land and take steps for disbursement of compensation. The competent authority after receipt of the letter dated 17.1.2011 from Project Director, Gwalior, wrote a letter on 2.2.2011 to the Project Director in reference to his letter dated 17.1.2011 that with regard to structures situate on the Government land, measurement valuation report (MB report) be sent to the office. The Project Director vide letter dated 17.2.2011 forwarded the MB report with regard to constructions on Government land. The project Director again wrote a reminder on 16.3.2011 to the Competent authority for taking early steps in the matter of payment of compensation regarding structures on Government land. Project Director on 10.6.2011 wrote to the Competent Authority that inspite of request sent, no award has yet been made under section 3G of the 1956 Act and there is no other method for payment of compensation except the award under section 3G. A meeting was held on 6.6.2011 under the Chairmanship of District Magistrate where decision was taken to take steps for removal of construction so that work of widening of National Highway be undertaken. The respondents no. 5 to 12 filed a writ petition in this Court being writ petition No. 42970 of 2011, Smt. Dev Kumari & others. Vs. Union of India and others claiming payment of compensation. This Court vide order dated 2.8.2011 directed the Special Land Acquisition Officer to hear out the representation of the respondents no. 5 to 12 of the present writ petition. After order of this Court dated 2.8.2011, the Special Land Acquisition Officer has passed the order dated 12.9.2011 by which it directed the National Highways Authority of India to make payment of the compensation for the structures situate in plot No. 788 and 790 as per measurement valuation report submitted by the Project Director, Gwalior. National Highways Authority of India. Feeling aggrieved by the said order, the petitioners have come up in this writ petition praying for the following reliefs:

" i) issue a writ, order or direction in the nature of mandamus restraining the respondents from interfering in the peaceful possession of the petitioners on their own Abadi land/House, except in accordance of law.

ii)issue a writ, order or direction in the nature of mandamus directing the respondents to pay the proper compensation to the petitioners in pursuance of the proposed acquisition being made by them and till the said actual payment is made, the respondents shall not interfere in the peaceful possession of the petitioners on their own Abadi land/House.

iii)issue a writ, order or direction in the nature of mandamus directing the respondent no. 5 and also the respondent no. 3 to decide the representation/ reminder/objection of the petitioners.

iv)Issue any other writ, order direction in the like nature, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

v)Award cost of the writ petition to the petitioner."

Sri Raj Kumar Singh, learned Counsel for the petitioner in support of the writ petition contended that Special Land Acquisition Officer having held that the respondents no. 5 to 12 being not entitled for any compensation of the structures situated on the Government land, has committed an error in directing the National Highways Authority of India to make the payment of compensation to the said respondents and the order is self contradictory. It is submitted that under section 3G of the 1956 Act payment of compensation is contemplated to the title holders of the land/buildings and the persons who have made constructions on the Government land are encroachers and are not entitled for any compensation under section 3G. Sri R.K. Singh further submitted that the Project Director of National Highways Authority of India having already requested the competent authority to prepare an award with regard to structures situated on the Government land to enable the National Highways Authority of India to make payment, it was incumbent upon the competent authority to prepare an award under section 3G so that National Highways Authority of India can make the payment but no award under section 3G having been prepared payment could not be made.

Sri D.K. Gupta, learned counsel for the respondents no. 5 to 12 refuting the submissions of learned Counsel for the petitioner contended that house of respondents no. 5 to 12 are situated in Abadi and they are in existence for last more than 40 years hence, they are clearly entitled for compensation for demolition of their buildings. It is submitted that National Highways Authority of India itself has prepared the measurement valuation report and has sent the demand draft for an amount of Rs. 34,25,066.71 to the competent authority. It is not open for the National Highways Authority of India to contend now that the respondents no. 5 to 12 are not entitled for compensation of their structures situated on plot Nos. 788 and 790. It is also to be contended that structures are not on the land belonging to the Government institutes and they are in the village Abadi which are in existence for last several years. He submits that houses of the respondents no. 5 to 12 are situated after the boundary wall of the institutes.

Smt. Archana Srivastava, learned Standing Counsel submits that National Highways Authority of India itself has issued a Bank Draft dated 20.8.2009 for an amount of 34,25,066.71 in favour of the competent authority and National Highways Authority of India wanted the Competent Authority to disburse the compensation to the various persons claiming owners of the structures. The competent authority has returned back the bank draft along with the letter dated 27.10.2009 since National Highways Authority of India is fully competent to assess and disburse the compensation to structures situate on the Government land. Reference of the meeting dated 5.6.2009 headed by the District Magistrate which was attended by officials of National Highways Authority of India has been made where it was decided that compensation for structures situated on the Government land are to be paid by National Highways Authority of India at its own level as was paid with regard to similar cases of NH 25 and NH26. The competent authority in passing the order dated 12.9.2011 has assessed the valuation of the structures on the basis of measurement valuation report provided by the National Highways Authority of India, which was certified by the Public Works Department, Jhansi and on that basis direction was issued. Learned Standing Counsel referring to the counter affidavit, submitted that most of the private respondents are residing there for last more than 40 years.

Sri R. K. Singh, learned Counsel for the petitioner in rejoinder submitted that compensation with regard to land of affected persons on N.H.25 and 26 project was made due to the reason that R&R Policy (Resettlement and Rehabilitation Policy) of the Asian Development Bank was applicable. He submitted that NH 75 is a BOT project and no R&R Policy is applicable. He submits that no parity can be claimed with regard to payment made by National Highways Authority of India for similar structures situated on NH25 and NH 26. It is stated that there is no provision for payment of compensation to encroachers or non title holders under sections 3G and 3H of the 1956 Act.

We have considered the submissions of learned counsel for the parties and have perused the record.

The provisions for payment of compensation consequence to acquisition of land under the 1956 Act are provided for in Section 3G of the Act. Section 3-G of the 1956 Act is quoted below:

"3G. Determination of amount payable as compensation. (l) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent. of the amount determined under sub-section (1), for that land.

(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), tbe competent authority shall give a public notice published in two local newspaper, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.

(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.

(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.

(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.

(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration

(a) the market va]ue of the land on the date of publication of the notification under section 3A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change."

There cannot be any case of respondents no. 5 to 12 that they are entitled for determination of compensation under section 3-G (1). Section 3-G contemplates determination of amount payable as compensation. The land on which structures of respondents no. 5 to 12 stand is recorded in the name of Government institute hence, the land is a Government land. Learned Counsel for the respondents No. 5 to 12 submitted that section 3G(2) of the 1956 Act gives entitlement to the respondents no. 5 to 12 to receive compensation of the structures. Sub-section (2) of Section 3G uses, two phrases "right of user or any right in the nature of an easement". Phrase "right of user" as used in sub-section (2) of Section 3-G has to be interpreted to mean right of user of any person who is rightfully using the land. The right of user has to be interpreted in the said manner. Sub-section (2) of section 3G does not contemplate determination of compensation to any person who is encroacher of land or trespasser. The plots in question are recorded in the name of Government institute which is clearly mentioned in the notifications issued under sections 3A and 3D. No objection under section 3C appears to have been made by the respondents No. 5 to 12 nor it is open for them to contend that their structures are not on the land acquired. Second phrase used in sub-section (2) of Section 3G is "right in the nature of easement". The respondents no. 5 to 12 also cannot claim in the facts of the present case, any right in the nature of easement hence, there cannot be any determination of compensation under section 3G (2) also in context of respondents no. 5 to 12. The competent authority has been throughout writing to the Project Director, Gwalior that in the facts of the present case, compensation for structure situated on the Government land is not to be determined under section 3G and payment of compensation has to be made by National Highways Authority of India at its own level. As noted above, bank draft of Rs. 34,25,066.71 was sent by project Director, National Highways Authority of India by letter dated 20.8.2009 to the competent authority for payment of compensation, which was returned by the competent authority vide letter dated 27.10.2009, stating therein that disbursement of compensation is to be made at the level of National Highways Authority of India and no steps are to be taken by the competent authority. The respondents no. 5 to 12 have come to this Court by filing a writ petition claiming compensation which was disposed of by Division Bench of this Court on 2.8.2011, directing the competent authority to decide the representation of the respondents no. 5 to 12. The order dated 12.9.2011, passed by the competent authority is an order deciding the representation of respondents no. 5 to 12 under the directions of the Court dated 2.8.2011. The competent authority did not proceed to determine the compensation in accordance with Section 3G of the 1956 Act. Thus, the order dated 12.9.2011 cannot be treated to be an order passed under section 3G of the 1956 Act. The competent authority has clearly stated in the order that the construction being situated on the Government land, no compensation for such land can be paid to the respondents no. 5 to 12. The said observation was in accord with the scheme of payment of compensation as contained in Section 3G of the Act. Thus, the determination of compensation under section 3G has neither been made nor could have been made by the competent authority. Much emphasis has been laid by learned Counsel for the petitioner that competent authority having come to the conclusion that compensation is not payable to the respondents no. 5 to 12, there is no occasion to direct for payment of compensation to the respondents no. 5 to 12. In this context, suffice it to say that competent authority has not made any determination of compensation at its own level rather it has observed that payment be made as per MV report submitted by Project Director, National Highways Authority of India, Gwalior as noted in the order. It has been clearly observed in the order that earlier Project Director National Highways Authority of India has submitted a measurement valuation report which valuation has been quoted in the order also hence, the said payment be made. Learned Counsel for the respondents no. 5 to 12 as well as learned standing counsel have referred similar payment made by National Highways Authority of India to the structures situated on the Government land in context of NH 25 and NH26 which fact is not disputed in the rejoinder affidavit. The petitioners have sought to explain that the payment with regard to NH25 and NH26 was made since the Resettlement and Rehabilitation policy was applicable in NH 25 and NH 26, which was being undertaken from Asian Development Bank and no such scheme is available in the facts of the present case.

In the present case, National Highways Authority of India itself vide letter dated 20.8.2009 has sent the bank draft of Rs. 34,25,066.71 to the competent authority for disbursement, which letter has already been brought on record as Annexure-3 to the writ petition. It is useful to quote the aforesaid letter, which reads as follows:

 

 
" To
 
Competent Authority,
 
Special Land Acquisition Officer,
 
Jhansi (U.P.)
 

 
Subject: Remittance of Compensation amount toward 		   Government structures in village Simradha Tehsil 	   Jhansi and District Jhansi for Four laning of 		   N.H.75 (Gwalior-Jhansi Section). 
 
Sir,
 
Please refer to the subject cited above for which find enclosed herewith the Demand Draft bearing no. 641832 Dated 20.08.2009, amounting to Rs. 34,25,066.871 toward the payment of structures as per details given below. 
 

 
Sl. No. 
 
Particulars
 
Amount
 
D.D No. 
 
Date
 

 
Payment toward Value of private structures/bore wells in Simaradha Village, District Jhansi
 
Rs. 23,53,340.95
 

 

 

 

 

 

 

 

 

 

 

 
641832
 

 

 

 

 

 

 

 

 

 

 

 
20.8.2009
 
2.
 
Payment toward structures owned by Government bodies falling in ROW in Simardha village District Jhansi
 
Rs. 10,71,725.76
 

 

 
3.
 
Total 
 
34,25,066.71
 

 

 

 

Before release of the payment it shall be ensured that amounts are disbursed on the condition that prospective private recipients of compensation have a valid legal claim over structures for which they are proposed to be compensated and that there is no duplication in payment of compensation of any individual. A certificate to this effect may be submitted.

Yours Faithfully

Anil Kumar Garg

Project Director."

National Highways Authority of India itself having forwarded the amount by bank draft to the competent authority which presupposes its valuation of the constructions by itself and knowing its willingness to make the payment to the owners of the constructions, we are of the view that direction to make the aforesaid payment by National Highways Authority of India as was offered by National Highways Authority of India by the competent authority cannot be faulted. As stated by the State, most of the persons are residing for last more than 40 years in their houses. Sri R.K. Singh submitted that the said demand draft was forwarded by National Highways Authority of India in view of the decisions taken by the district administration to make the payment. The National Highways Authority of India never challenged the decision taken in the joint meeting with the district administration regarding payment of compensation amount towards the structures and it itself has sent the demand draft on 20.8.2009 as noted above, it cannot be allowed to take stand today that payment need not to be made against the structures. We are of the view that National Highways Authority of India is now estopped from taking any contrary stand, it itself having offered for payment. In the direction dated 12.9.2011 issued by the competent authority, there is no determination of compensation by the competent authority under section 3-G rather it is reiteration of earlier stand taken by the competent authority that payment is to be made by the National Highways Authority of India at its own level and direction in the order dated 12.9.2011 is in accord with the earlier stand taken by the competent authority and stand taken by the National Highways Authority of India itself. The Competent authority has referred to the own volition of National Highways Authority of India in issuing the said direction. Thus, we need not enter into the issue as to whether the Resettlement and Rehabilitation Policy is applicable on NH75 also or not. National Highways Authority of India having already sent the demand draft for the aforesaid amount for payment of compensation to the structures situated on the Government land, it cannot be allowed to resile from its own action at this stage. The petitioners however, are entitled for a relief of mandamus directing the respondents no. 1 to 4 to demolish/remove the structures raised by the respondents no. 5 to 12 on the survey plot nos. 788 and 790 after making the payment of compensation as earlier offered by the National Highways Authority of India vide letter dated 20.8.2009. Consequently, the writ petition is partly allowed with the following directions:

(I)The prayer for the petitioner for quashing the order dated 12.9.2000 is refused.

(II) The respondents no. 1 to 4 shall remove structures raised by the respondents no. 5 to 12 on the survey plot nos. 788 and 790 after National Highways Authority of India makes the payment as it offered earlier by sending a demand draft dated 20.8.2009. A fresh demand draft of the same amount prepared separately in the name of persons as mentioned in measurement valuation report be sent by National Highways Authority of India to Collector Jhansi which may be disbursed.

(III) The district administration shall coordinate in disbursement of the amount and thereafter immediately take steps for removal of the encroachment. The entire exercise of removal of structures be completed within four weeks from the date of payment.

The parties shall bear their own costs.

Order Date :- 17.10.2012

LA/