Allahabad High Court
Gram Niyojan Kendra And 2 Others vs Union Of India And 3 Others on 28 November, 2017
Bench: Dilip Gupta, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment Reserved on : 14.11.2017
Judgment Delivered on : 28.11.2017
Court No. - 39
Case :- WRIT - C No. - 23885 of 2017
Petitioner :- Gram Niyojan Kendra And 2 Others
Respondent :- Union Of India And 3 Others
Counsel for Petitioner :- Chhaya Gupta,Amit Khemka,Sujeet Kumar
Counsel for Respondent :- C.S.C.,A.S.G.I.,Neeraj Dube,Pranjal Mehrotra,Sudhanshu Srivastava,Usha Mehrotra
Hon'ble Dilip Gupta,J.
Hon'ble Jayant Banerji,J.
(Delivered by Hon'ble Dilip Gupta, J.)
This petition, at the instance of Gram Niyojan Kendra and two others, seeks the quashing of the notification dated 8 August 2011 issued under Section 3A of The National Highways Act, 19561 as also the declaration dated 7 August 2012 issued under Section 3D of the Act. The petitioners have also sought the quashing of the award and the supplementary award dated 22 June 2013 and 29 June 2013 that were made under Section 3G (1) of the Act. An alternative relief that has been claimed, if the acquisition is upheld, is that compensation for the acquired land should be calculated in accordance with the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20132.
The main object of petitioner No.1, which claims to be a Society registered under the provisions of The Societies Registration Act, 1860 is to facilitate the process of development. Petitioner No. 2 claims to be the Secretary-cum-Executive Director of the Society while petitioner No. 3 claims to be the founder Secretary (Honorary) of the Society. A plot measuring 2972 sq. mts. of land forming part of Khasra No. 1221 in village Dasna, District Ghaziabad was purchased by the Society and the petitioners by a registered sale deed dated 21 April 1989. The Society purchased 0.2530 sq. mts. of land while petitioner Nos. 2 and 3 purchased 0.0442 sq. mts. of land.
The Central Government, in exercise of powers conferred under Section 3A(1) of the Act, issued a notification dated 8 August 2011, after being satisfied that the land, a brief description of which was given in the Schedule, was required for a public purpose namely building, maintenance, management and operation of Delhi-Meerut Expressway on a stretch of land from Km 8.260 to Km 28.000 of National Highway No. 24 and Km 28.000 to Km. 53.000 of Delhi-Meerut Expressway (new alignment) and the connecting link from Delhi-Meerut Expressway to National Highway No. 58 (from Km. 0.000 to Km. 5.350 of the link) in District Ghaziabad, declared its intention to acquire such land. The notification also provided that any person interested in the land could, within 21 days from the date of publication of the notification in the Official Gazette, object to the use of such land. Every such objection had to be made to the Competent Authority namely, The Additional District Magistrate (Land Acquisition), Joint Organization, Ghaziabad3 in writing and the Competent Authority after giving the objector an opportunity of being heard and after hearing all such objections and after making such further enquiry was considered necessary, by order, either allow or disallow the objections. The notification also provided that the land plans and other details of the land covered under the notification were available and could be inspected by any interested person in the office of the Competent Authority. The Schedule to the notification contained a brief description of the land to be acquired with or without structure. It specified the name of the district, the name of the Taluka (Tehsil), the name of the village, the Survey Number, type of land, nature of land and area of the land both in square meters and hectares. The substance of the notification issued under Section 3A(1) of the Act was also published in two newspapers namely 'Hindustan Times' and 'Dainik Jagran' on 14 September 2011.
Plot No. 1221 was included in the aforesaid Schedule. The nature of land was indicated as private and residential and the total area of land of Plot No. 1221 to be acquired was mentioned as 4343.28 sq. mts. or 0.4343 hectares.
The objections which were received were disallowed by the Competent Authority and, thereafter, a report was submitted to the Central Government. It needs to be noted that the petitioner-Society or the petitioner Nos. 2 and 3 did not file any objection. Upon receipt of the said report of the Competent Authority and in exercise of powers conferred under Section 3D(1) of the Act, the Central Government declared that the land specified in the Schedule should be acquired for the purpose indicated and that the land specified in the said Schedule shall vest absolutely in the Central Government free from all encumbrance.
Plot No. 1221 was included in the aforesaid declaration made under Section 3D(1) of the Act. It was shown to be private and agricultural land with total area as 4343.28 sq. mts. or 0.4343 hectares. The names of the land owners / interested persons were also indicated.
The award was, thereafter, made on 22 June 2013 but it was modified on 29 June 2013. Subsequently, a communication dated 28 April 2014 was also sent by the National Highways Authority of India to the Competent Authority informing it to make arrangements for disbursement of the payment.
This petition has been filed to challenge the notification issued under Section 3A of the Act, the declaration made under Section 3D(1) of the Act as also the award made under Section 3G(1) of the Act.
Sri Amit Khemka, learned counsel for the petitioners assisted by Sri Sujeet Kumar made the following submissions :-
i. the notification issued under Section 3A of the Act deserves to be set aside as it does not indicate which portion of Plot No. 1221 was likely to be acquired since only 0.434 hectares of Plot No. 1221 out of the total area of 0.6454 hectares was being acquired. In support of this contention learned counsel for the petitioners placed reliance upon the judgment of the Supreme Court in Competent Authority v. Barangore Jute Factory and Others4 and the Full Bench judgment of the Allahabad High Court in Bahori Lal v. Land Acquisition Officer and Others5;
ii. though the notification issued under Section 3A of the Act did state that the land plans and other details of the land were available and could be inspected by any interested person in the office of the Competent Authority but they were not made available;
iii. it is for this reason that objections were not filed by the petitioners and it is only in February 2013 that the members of the petitioner-Society learnt from other inhabitants / owners of Khasra No. 1221 that the same had been acquired;
iv. though substantial constructions had been raised by the petitioner-Society on the land but the notification issued under Section 3A of the Act mentioned it as private and residential and the declaration made under Section 3D of the Act mentioned it as private and agricultural;
v. the award dated 22 June 2013, as amended on 29 June 2013, stands vitiated as the petitioner-Society was deprived of its right to file objections since its name was not mentioned in the declaration made under Section 3D of the Act;
vi. the award also stands vitiated because the survey was conducted by the National Highway Authority of India after the award had been made and the relevant considerations provided for determination of the compensation under Section 3G of the Act had not been adhered to;
vii. the acquisition stands lapsed as neither the compensation has been deposited nor the possession has been taken and in any case the petitioners are entitled to get the compensation redetermined in accordance with the provisions of the 2013 Act; and
viii. the writ petition was filed with delay for the reason that it was only towards the end of February 2013 that the members of the petitioner-Society learnt from other inhabitants / owners of Khasra No. 1221 that the same had been acquired by the Government of India and then they came to know that the notification as also the declaration had been made.
Sri Pranjal Mehrotra, learned counsel for the respondent-Authority, however, defended the acquisition and submitted that :-
i. the petition should be dismissed as it was filed with inordinate delay on 24 May 2017 to assail the acquisition made in the year 2011 without affording any satisfactory explanation. The petitioners cannot feign ignorance about the issuance of the notification under Section 3A of the Act as it was not only published in the Official Gazette on 8 August 2011 but also in two newspapers namely 'Hindustan Times' and 'Dainik Jagran' on 14 September 2011 and the declaration made under Section 3D of the Act was also published in the Official Gazette on 7 August 2012;
ii. the notification under Section 3A and the declaration under Section 3D of the Act have been issued in accordance with law and in any case the petitioners cannot complain as objections were not filed under Section 3C(2) of the Act despite opportunity having been provided;
iii. the notification cannot be said to be vague as it not only indicated the area of Plot No. 1221 that was being acquired but also mentioned that the land plans and other details of land covered under the notification were available and could be inspected by any person interested in the office of the Competent Authority;
iv. there is no infirmity in the award since it has been made in accordance with the provisions of the Act; and
v. the compensation is not required to be determined in accordance with the provisions of the 2013 Act.
We have considered the submissions advanced by the learned counsel for the parties.
A large tract of land situated in villages Dasna, Rasulpur Sikrod, Kushalia, Nahal, Didwari, Nurpur in Tehsil Ghaziabad and villages Kalchhina, Patti, Amrala, Jahangirpur, Muradabad, Saidpur, Jainuddinpur, Bhojpur, Aurangabad Fazalgarh, Bhatjan, Palota, Taheta and Chudiyala in Tehsil Modinagar were sought to be acquired for building, maintenance, management and operation of the Delhi-Meerut Expressway in the State of Uttar Pradesh. Both the Tehsils fall in district Ghaziabad. Two National Highways No. 24 and 58 are involved.
Section 3A of the Act deals with the power to acquire land and is as follows :-
"Section 3A: (1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.
(2) Every notification under sub-section (1) shall give a brief description of the land.
(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language."
The notification dated 8 August 2011 that was issued under Section 3A of the Act was published in the Official Gazette on the same date i.e. on 8 August 2011 and it was also published in two newspapers namely 'Hindustan Times' and 'Dainik Jagran' on 14 September 2011. The notification gave an opportunity to any person interested in the land to object to the use of such land for the purpose mentioned in the notification within 21 days as contemplated under Section 3C(1) of the Act.
Section 3C deals with hearing of objections and is reproduced below:-
Section 3C: (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 the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person 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.
The petitioners admittedly did not file any objection under Section 3C(1) of the Act. Certain other persons had filed objections which were considered and disallowed by the Competent Authority. Thereafter, the Competent Authority submitted a report to the Central Government. The Central Government, in exercise of powers conferred under Section 3D, declared that the land specified in the Schedule should be acquired for the purpose mentioned in the notification. Section 3D of the Act is reproduced below:
Section 3D: (1) Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A.
(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.
The power to take possession is provided for under Section 3E of the Act. It is reproduced below:
Section 3E: (1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under section 3G with respect to such land has been deposited under sub-section (1) of section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice.
(2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply :
(a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;
(b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District,
and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it.
The determination of the amount payable as compensation is provided for under Section 3G of the Act. The award was made on 22 June 2013. It was subsequently modified on 29 June 201. Section 3G of the Act is reproduced below:-
Section 3G: (1) 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), the competent authority shall give a public notice published in two local newspapers, 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 value 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."
The deposit and payment of amount is provided for under Section 3H of the Act. It is reproduced below:
"Section 3H: (1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.
(2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.
(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.
(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.
(5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof.
(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit."
The first issue that arises for consideration is whether there has been a delay in challenging the acquisition because though the Section 3A(1) notification was issued on 8 August 2011 and the declaration was made under Section 3D(1) on 7 August 2012, the present writ petition was filed on 24 May 2017 after a delay of almost six years.
Learned counsel for the petitioners has placed reliance on the averments made in paragraph 5(m) and (n) of the writ petition and has stated that it was towards the end of February 2013 that the members of the petitioner-Society learnt from other inhabitants / owners of Khasra No. 1221 that the same had been acquired by the Government of India. Learned counsel also pointed out that thereafter Writ Petition No. 9354 of 20146 was filed in the Delhi High Court in December 2014 which was disposed of on 24 December 2014 with the following observations :-
"1. Vide the present petition, the petitioners seek directions as under:-
a. quashing the Notification Bearing S.O. No. 1832(E) dated 8.8.2011 and Notification bearing S.O. No.1758 (E) dated 7.8 2012 and all consequent action of the respondents in respect of Khasra No. 1221 and the land of the petitioners, including the alleged award of the Respondent No.4 dated 22.6.2014.
b. or in the alternative the respondents be directed to provide a land in the near vicinity where the present land of the Petitioners is located of the equal area, keeping in view of the cost of the construction and other expenses spent by the petitioners in their said land.
c. Or in the alternative if the Hon'ble Court is not satisfied with the merits of the case, then direct the respondents to pay the market price of land of the petitioners, as specified in the circle rates in Annexure P-35.
2. For the issue raised in the instant petition, the petitioners have made representation dated 29.4.2014 to the Additional District Magistrate (LA), Ghaziabad, U.P., However, there is no response from the side.
3. Keeping in view of the averments made in the instant petition and the submissions made by the learned counsel appearing on behalf of the petitioners, the Additional District Magistrate (LA), Ghaziabad, U.P., is directed to decide the aforesaid representation dated 29.4.2014 filed by the petitioners within a period of two months from today. The decision taken by the aforesaid Authority shall be communicated to the concerned Authority within two weeks thereafter.
4. In view of the above, the present petition along with pending application stands disposed of.
5. The Registry of this Court is directed to send a copy of this to the Authority mentioned above.
A copy of this order be given dasti to the learned counsel for the parties under the signature of the Court Master.
It has also been pointed out by learned counsel for the petitioners that the representation was rejected and the petitioners were informed of this fact by the Additional District Magistrate by a communication dated 9 September 2015.
The aforesaid facts stated in the writ petition, in our opinion do not offer a satisfactory explanation for this inordinate delay of about six years in challenging the acquisition proceedings. In the first instance when the notification dated 8 August 2011 issued under Section 3A(1) of the Act was not only published in the Official Gazette on the same date but was also published in the two newspapers on 14 September 2011, it is not open to a tenure holder to suggest that the acquisition was not in the knowledge of the tenure holder. However, even if it be assumed that the petitioners acquired knowledge of the notification towards the end of February 2013, then too there has been an inordinate delay in filing the petition. According to the petitioners, they earlier filed a writ petition in December 2014 before the Delhi High Court which was disposed of on 24 December 2014 with a direction to the Competent Authority to decide it. Though, the petitioners were informed in September 2015 that the representation was rejected, this petition has been filed after a delay almost one year and nine months.
A Constitution Bench of the Supreme Court way back in the year 1974 in Aflatoon & Ors. Vs. Lt. Governor of Delhi & Ors7, examined the consequences of a delayed challenge to the acquisition proceedings and observed that writ petitions filed in the year 1972 seeking to challenge the notification issued under Section 4 of the Land Acquisition Act and the declaration made under Section 6 of the Act in the year 1966 should be dismissed solely on the ground of laches on the part of the petitioners as the petitioners should not be permitted to sit on the fence and allow the Government to complete the acquisition proceedings and then attack the notification on grounds which were available to them at the time when the notification was published as that would be putting a premium on dilatory tactics.
This Constitution Bench decision has been repeatedly followed by the Supreme Court in subsequent decisions.
In The Ramjas Foundation & Ors. Vs. Union of India & Ors8, the notification under Section 4 of the Land Acquisition Act was issued in 1959 and the declaration under Section 6 of the said Act was made in 1969. The writ petitions were filed in the year 1973. After referring to the aforesaid Constitution Bench decision in Aflatoon, the Supreme Court observed as follows:-
".........The challenge on the other hand in the writ petition is in respect of notifications under Sections 4 and 6 covering the entire land measuring about 730 bighas situate in village Sadhurakhurd. We find no justification at all in explaining the delay on the ground that no award has been passed nor the appellants have been dispossessed so far. This cannot be an explanation for not challenging the notifications under Sections 4 and 6 of the Act. ............... In the facts and circumstances of the case before us the appellants were also sitting on the fence and did not take any steps of challenging the notifications under Sections 4 and 6 of the Act till 1973 though the grounds now sought to be urged were available to the appellants as soon as such notifications were issued. Thus viewing the matter from any angle we are clearly of the view that the writ petition was also liable to be dismissed on the ground of laches and delay on the part of the appellants apart from other grounds already dealt by us. In the face of the aforesaid view taken by us, it is not necessary at all to go on other questions raised in the case. ........".
The same view was reiterated by the Supreme Court in State of Tamil Nadu & Ors. Vs. L. Krishnan & Ors9 and it was observed:-
"There is yet another and a very strong factor militating against the writ petitioners. No only did they fail to file any objections in the enquiries held under Section 5-A, they also failed to act soon after the declarations under Section 6 were made. As stated above, the declarations under Section 6 were made in the year 1978 and the present writ petitions were filed only sometime in the year 1982-83 when the awards were about to be passed. It has been pointed out in Aflatoon that laches of this nature are fatal. ..........."
This was also the view expressed by the Supreme Court in Urban Improvement Trust, Udaipur Vs. Bheru Lal & Ors10. In this case the declaration under Section 6 of the Land Acquisition Act was published in the official gazette on 24 May 1994 but the writ petitions were filed after two years to challenge the acquisition proceedings. The Supreme Court observed that in a case where the land is needed for a public purpose and that too for a scheme framed under the Urban Development Act, the Courts should take care not to entertain writ petition filed with delay as it is likely to not only cause prejudice to the persons for whose benefits the housing scheme is framed but it also has a negative impact on the planned development of the area.
In Government of A.P. & Ors. Vs. Kollutla Obi Reddy & Ors11, the Supreme Court again observed that the writ petitions filed after a long passage of time to challenge the acquisition proceedings should not be entertained.
The same view has been taken by the Supreme Court in the subsequent judgments rendered in Swaika Properties Ltd. & Anr. v. State of Rajasthan and Ors12; Sawaran Lata & Ors v. State of Haryana13, and in Banda Development Authority, Banda Vs. Moti Lal Agarwal & Ors14.
In Banda Development Authority, Banda, the Supreme Court held:-
"16. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of BDA and the State Government, the High Court was duty-bound to take cognizance of the long time gap of nine years between the issue of declaration under Section 6(1) and filing of the writ petition, and declined relief to Respondent 1 on the ground that he was guilty of laches because the acquired land had been utilised for implementing the residential scheme and third-party rights had been created. The unexplained delay of about six years between the passing of award and filing of the writ petition was also sufficient for refusing to entertain the prayer made in the writ petition.
17. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self-imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallised rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits.
.....................
19. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose.
......................
26. In the instant case, the acquired land was utilised for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, water and sewer lines, etc. BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, BDA not only incurred huge expenditure but also created third-party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost siix years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to Respondent No.1."
The Supreme Court has, thus, repeatedly declined to entertain petitions for quashing the acquisition when they have been filed with considerable delay after the publication of the declaration under Section 6 of the Land Acquisition Act. In the Constitution Bench decision rendered in Aflatoon delay of six years was considered fatal and in the other cases delays ranging between two years to six years were found sufficient for dismissing the petitions on the ground of laches.
The petition, therefore, deserves to be dismissed on the ground of latches alone.
However, we consider it appropriate to also examine the contentions advanced by the learned counsel for the petitioners.
The first contention of the learned counsel for the petitioners is that the notification issued under Section 3A of the Act is vague as it does not indicate which part of Khasra No. 1221 situated in village Dasna in Tehsil Ghaziabad was acquired since all it mentions is that 0.4344 hectares of land situated in Plot No. 1221 was being acquired. Learned counsel submitted that when only 0.4343 hectares of land out of 0.6454 hectares of land of Plot No. 1221 was being acquired, it was necessary to indicate the portion that was being acquired so that the tenure holders could file objections.
In this connection, it would be pertinent to refer to the averments made by the National Highways Authority of India in the supplementary counter affidavit. It gives the details of the 8 owners of the land situated in Khasra No. 1221, their total area and the area under acquisition and it is reproduced :-
Sr. No.
Name of Land Owners
Total Area (in hectares) of plot of Land Owner
Area (in hectares) Under Acquisition
Remarks
Gram Niyojan Kendra through Sachiv Sutapa Mukharjee wife of Dr. Krishna Kant
0.2530
0.2530
-
Krishna Kant Mukharjee son of Nritya Gopal Mukharjee,
Sutapa Mukharjee wife of Krishna Kant Mukherjee
0.0442
0.0442
-
Korala Buildcon Private Ltd. through Govind Agrawal Son
0.1585
0.1585
By sale deed.
Mutation not done.
Mehar Khan, Nanhey Khan, Alam Khan sons of Jumma Khan
0.0254
0.0254
By sale deed.
Mutation not done.
Ramvir Singh, Omvir Singh sons of Jagat Singh,
Krishan Vir Singh son of Ballam Singh
0.0334
0.0300
By sale deed.
Mutation not done.
Sudhir Chand Jain son of Laxmi Chand Jain
0.0263
0.0105
-
Manju wife of Naresh Chauhan
0.0292
0.0080
By sale deed.
Mutation not done.
Shushila Gram Udhog Sanshta through Deepak Tyagi son of C.S. Tyagi
0.0170
0.0004
-
It would also be relevant to refer to the copy of a sketch plan of Plot No. 1221 that has been enclosed as Annexure-2 to the supplementary affidavit. It indicates the plots of the 8 persons and the area that has been acquired. The entire land of petitioners which is contained at Serial Nos. 1 and 2 is included in the acquisition and only a portion of land of persons mentioned at Serial Nos. 5, 6, 7 and 8 has been left out from the acquisition. The map is an enclosure to this judgment.
Thus, the total area of land situated in Khasra No. 1221 belonging to the petitioners is 0.2972 hectares and this entire area is under acquisition. It is also clear that only 0.4343 hectares of land out of 0.6454 hectares of land of Plot No. 1221 has been acquired including 0.2972 hectares of the petitioners. The notification dated 8 August 2011 issued under Section 3A(1) of the Act only gives a brief description of land in the Schedule. It, however, mentions that the land plans and other details of the land covered under the notification can be inspected by any interested person in the office of the Competent Authority. Any person interested could have, therefore, visited the office of the Competent Authority to examine the land plans and other details to ascertain what portion of land situated in Plot No. 1221 was being acquired. All that has been stated in paragraph 5(s) of the writ petition is that the officials of the petitioner-Society visited the office of the Competent Authority to see land plans and other details of the land but there was no plan or any such detail available with the Competent Authority and, therefore, in absence of the plan it was not possible to ascertain which portion of Khasra No. 1221 was being acquired. A very vague statement has been made without even indicating on which date the officials of the petitioner-Society visited the office of the Competent Authority and which officer refused to show them the details.
The petitioners, however, have placed on record a communication dated 4 April 2013 sent by the Society to the District Magistrate, Ghaziabad stating that their plot had wrongly been indicated as agricultural and the Gazette information does not mention the name of the petitioner-Society and the list of the affected people and only mentions the name of the vendor from whom the plot was purchased by the petitioners in 1989. A request was, however, made to protect the efforts of the petitioner-Society by arranging a minor realignment of the road, if that was possible. A request was also made about the pattern of payment of compensation. The relevant portion of the letter reproduced below :-
"Very recently we came to know about the Gazette information published in Hindustan Times and Danik Jagran of 7 August 2012 about the proposed land requirement from Khasra No. 1221, for the construction of elevated road from Delhi to Meerut across the National Highway No. 24. We did not get the information earlier since we do not subscribe to either of these newspapers. In this regard we have a few concerns:
1. The Gazette wrongfully indicates the plot of land as agricultural land, which is not correct, since we had got it converted and we have all documents in this regard.
2. The Gazette information does not mention our name in the list of affected people. It mentions the name of the original seller of the land from whom we purchased the plot in 1989.
We are writing this to request you, to protect our years of efforts initiated by Late Sri Satish Chandra, ICS by arranging a minor re-alignment of the road considering our contribution to the area, if possible.
In case this is not possible then we will be grateful if you kindly let us know whether our plot of land will be acquired by the Authority, if so what would be the time frame of action? Also please indicate, what would be the mechanism for deciding the compensation of buildings?"
(emphasis supplied)
Similar letters were sent to the Chairperson of the National Highways Authority of India and other officers of the Authority.
In response to the aforesaid communication, information was conveyed to petitioner Nos. 2 and 3 to visit the Headquarters of the National Highways Authority of India on 15 April 2013 to find out the details. The petitioners were informed that a team would be visiting Dasna village to carry out the survey of Plot No. 1221 on 17 April 2013. Such a survey was carried out and the petitioners acknowledged this fact in their communication dated 29 April 2013. The petitioners were apprised that their area in Plot No. 1221 is under acquisition. In this connection, it would be needful to reproduce the relevant portion of the communication dated 29 April 2013 sent by petitioner No.2-Dr. (Mrs.) Sutapa Mukherjee to the National Highways Authority of India, Dwarka, New Delhi and it is as follows :-
"This has reference to our meeting on 15 April 2013 at your office. Thank you very much for giving us time. As per instructions of Mr. A.K. Singh, Mr. Mishra with his team visited us on 17 April, 2013. Based on his survey of the area, he said that the area wherein GNK is located would come under acquisition as already mentioned in the Government Circular.
We again request you to consider our request of protecting our (Gram Niyojan Kendra) efforts as it is the only organization serving the poor and backward community by making them self employed through various skill development trainings. The beneficiaries are mostly women from muslim and scheduled castes communities.
We shall be obliged if you kindly see our efforts and then decide." (emphasis supplied)
There is no reason to doubt that the land plans and other details of the land covered by the notification were available in the office of the Competent Authority and could be inspected by any person who was interested. It is not possible that even without the land plans and other details, the National Highways Authority of India would have under taken the project. In the counter affidavit filed by the National Highways Authority of India, it has also been stated that the land plans and other details of the land covered under the 3A notification were always available and could be inspected by the interested persons in the office of the Competent Authority. Only a vague denial has been made in the writ petition. There is nothing on the record to indicate that the petitioners contacted the ADM (LA) within 21 days to find out the details. In fact, the petitioners have stated that it was only in February 2013 that they came to know about the acquisition and, therefore, on their own admission they did not visit the office within the stipulated time. It has, therefore, to be held that the land plans and other details of the land were available in the office of the Competent Authority and the petitioners could have ascertained whether their portion of the land situated in Plot No.1221 was being acquired.
In the decision of the Supreme Court in Competent Authority, on which reliance has been placed by learned counsel for the petitioners, only a portion of the plots were acquired and the notification also did not provide which portion was being acquired nor it was stated that the plans of the area under acquisition could be inspected. It was for this reason that the Supreme Court observed that the notification was vague but at the same time the Supreme Court also pointed out that the position would have been different if a plan was available to identify the area under acquisition. The observations of the Supreme Court are as follows :-
"So far as the question whether the impugned Notification meets the requirement of Section 3A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of land in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the law.
While dealing with the question of brief description of land in the acquisition notifications, reference was made to some judgments of this Court where acquisition Notifications under Section 4 of the Land Acquisition Act had come up for consideration on account of challenge being leveled on ground of vagueness of the Notifications. In most of these cases, Plan of the area under acquisition was made part of the notifications to show that the requirement of description of land was met. This lead us to inquire whether there was any site plan forming part of the impugned Notification.
The availability of a Plan would have made all the difference. If there is a Plan, the area under acquisition becomes identifiable immediately. The question whether the impugned Notification meets the requirement of brief description of land under Section 3A(2) goes to the root of the matter. The High Court rightly observed: ".it is just not possible to proceed to determine the necessity of acquisition of a particular plot of land without preparation of a proper Plan." The Appendix to the impugned Notification shows that in many cases small parts of larger chunks of land have been notified for acquisition. This is not possible without preparing a Plan. But where is the Plan? The Notification in question makes no reference to any Plan. .. .. .. ..
The impugned judgment of the High Court emphasises the need for a Plan. It is clear from the judgment of the High Court that no Plan was produced before it. The absence of any reference to a Plan in the impugned Notification and in fact non-availability of any Plan linked to the Notification, fortifies the argument that the description of the land under acquisition in the impugned Notification fails to meet the legal requirement of a brief description of the land which renders the Notification invalid.
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. 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 v. Gurdip Singh Uban and Ors. : AIR 1999 SC 3822. 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." (emphasis supplied)
In the present case, it is correct that only 0.4343 hectares of land out of total 0.6454 hectares of land of Plot No. 1221 was being acquired but the notification issued under Section 3A of the Act also mentions :-
" The land plans and other details of the land covered under this notification are available and can be inspected by the interested person at the aforesaid office of the Competent Authority."
The availability of a plan makes all the difference because if a plan is available, the area under acquisition is identified immediately. It, cannot, therefore, be urged that the notification is vague. The notification specifically provides that the persons interested could visit the office of the Competent Authority and inspect the land plans and other details. The decision of the Supreme Court in Competent Authority, therefore, does not help the petitioners.
Likewise, the Full Bench Bench decision of the Allahabad High Court in Bahori Lal, on which reliance has also been placed by learned counsel, does not help the petitioners. The Full Bench found that the notification did not even mention the locality where the land was situated. The observations of the Full Bench are as follows:-
"24. The note in a notification under Section 4(1) of the Act cannot take the place of a sufficient description of the locality itself. The site-plan or the plan of the land may fix the identity of the land that is, on an examination of the plan it may be possible to find out what is the exact area covered by the proposed acquisition and even which are the plots or parcels of land. That, however, necessarily cannot fix the locality itself. To illustrate, consider a case of a notification under Section 4(1) in respect of say, 5 acres of land in the city of Allahabad. The notification mentions that 5 acres of land situate in the city of Allahabad are proposed to be acquired. If the notification contains a note to the effect that the site-plan may be inspected in the office of the Collector, Allahabad, the plan, unless it mentions the particular locality, i.e., Mohallah of the city, would hardly indicate the mohallah in which the land is actually situate. If it is a scale map, then it may be that an expert Draftsman or an Engineer may ultimately after making calculations and doing various other things, locate the land and find out that it is situate in a particular mohallah. But, it seems to us, common people would not be able to find out on a perusal of the plan the mohallah in which the land proposed to be acquired is situate. They might even after perusing the map be unable to find out whether in respect of the land they are persons interested entitled to file objections under Section 5A of the Act or not. Such a notification, therefore, is likely to completely defeat the only right given under Section 5A of the Act to raise objections against acquisition of the land or of any land in the locality."
A Division Bench of this Court in Sompal and 5 Others v. Union of India thru Secy. and 3 Others15 also distinguished the Full Bench decision of the Allahabad High Court in Bahori Lal as the notification in issue before the Division Bench made a clear reference to the land plans and other details of the land which could be inspected in the office of the Competent Authority and the observations of the Division Bench are :-
"Learned counsel for the petitioners has raised an issue which according to him goes to the root of validity of the said notification. The contention is that the notification with respect to plot no.144 showing it to be Government land of non-agriculture in nature and proposed area for acquisition to be 0.4699 hectares, is not a sufficient brief description of the land for two reasons. Firstly, according to petitioners, it is not a Government land and secondly, the total area of plot no.144 is 4.0180 hectares and hence, when the proposal is to acquire only a part of that plot, the description should have been sufficient to enable the persons interested to identify the land proposed to be acquired.
In support of the aforesaid contention, learned counsel for the petitioners has placed reliance upon a Full Bench judgment of this Court in the case of Bahori Lal Vs. Land Acquisition Officer and Others, AIR1970 All 414. In that case, the notification in question did not indicate the plot numbers of the land proposed to be acquired and only indication was that a map has been prepared of such land which may be inspected. The Full Bench held that the description of the land sought to be acquired without giving numbers of the plots but by referring to a map which may be inspected in the office, does not meet with the requirement of Sections 4 and 6 of the Land Acquisition Act, 1894 of giving particulars of the land.
The other judgment on which learned counsel for the petitioners has placed reliance is that of Apex Court, in the case of Competent Authority Vs. Barangore Jute Factory and others, (2005) 13 SCC 477. The facts of that case were quite similar as it appears from paragraph no.5, which was referred to us. The problem arose because the brief description given in the notification was not enough for identification of the land sought to be acquired because only part of a larger chunk of land was being acquired. On that ground, the Apex Court had to interfere and hold that the requirement of sub-section (2) of Section 3-A of the Act was not satisfied.
On the other hand, learned counsel for the National Highway Authority of India has submitted on the basis of written instructions that the land has always been recorded in the survey records as Government land without any objection or any proceeding against such entry so far. He has further pointed out that in Annexure 6, the impugned notification, it was clearly indicated just above the Schedule containing brief description of the By-pass land sought to be acquired that "the land plans and other details of the land covered under this notification are available and can be inspected by the interested person at the aforesaid office of the Competent Authority".
He has further submitted in reply to the submissions advanced on the basis of two judgments noted above that the issue before the Full Bench of this Court was in an entirely different factual matrix where the plot numbers were not at all indicated in the brief description of the land and hence, in no way, the persons concerned with the plots under acquisition could have known that the lands in which they are interested are under acquisition. With regard to the Supreme Court judgment in the case of Competent Authority (supra), he has drawn our attention to paragraph no.7 of the judgment wherein the Court has considered the crucial aspect of the matter after mentioning in paragraph no.6 that in most of the notifications in other cases, plan of the area under acquisition was made part of the notifications to show that the requirement of description of land was met. In paragraph no.7, it was further observed that the availability of the plan could have made all the difference and then it was found that there was absolute absence of reference of a plan in the notification impugned before the Apex Court.
Learned counsel for the National Highway Authority of India thereafter pointed out that this case is distinguishable because in the impugned notification, there is a clear reference to the land plans and other details of the land covered, which were available and could be inspected at the office of the Competent Authority. According to him, the brief description giving the plot numbers and indicating that a part of that plot was proposed to be acquired was sufficient for identification of the land sought to be acquired in view of further indication in the notification regarding land plans and other details.
It is not in dispute that subsequently when no objection etc. were filed by the petitioners, the land has been notified under Section 3-D of the Act on 23rd May, 2013. If the contention of the petitioners is accepted to be true that petitioners have built some constructions or houses on the land sought to be acquired even if the land is that of the Government, they may claim compensation on that account in accordance with law."
(emphasis supplied)
In the present case, the petitioners did not file objections. Section 3D(1) of the Act provides that where no objection under Section 3C has been made to the Competent Authority or where the Competent Authority has disallowed the objections, the Competent Authority shall submit a report to the Central Government and on receipt of such report, the Central Government shall declare, by notification, in the Official Gazette that the land should be acquired for the purpose mentioned in the Section 3A(1) notification. Section 3D(2) of the Act provides that on publication of the declaration, the land shall vest absolutely in the Central Government free from all encumbrances. Thus, unlike the provisions of the Land Acquisition Act where the land vests in the Central Government free from all encumbrances under Section 16 or 17 of the Act when possession of the land is taken, land would vest absolutely in the Central Government under the Act free from all encumbrances on publication of the declaration made under Section 3D(1) of the Act.
This apart, even in the subsequent representations which the petitioners filed before the National Highways Authority of India all that was stated was that the alignment should be changed and the amount of compensation may be disclosed.
The Supreme Court in Union of Indian v. Kushala Shetty and Others16 observed that the Courts are not equipped to decide the viability and feasibility of a particular alignment or whether the particular alignment will sub-serve larger public interest. The observations are as follows :-
"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. In such matters, the scope of judicial review is very limited. The Court can nullity 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." (emphasis supplied)
It will also be appropriate to reproduce paragraph 10 of the Judgment of the Supreme Court in Ramniklal N. Bhutta and Another v. State of Mahrarashtra and Others17 where the need for expansion and modernization of the country has been emphasized for which purpose land has to be acquired. The observations are as follows:-
"Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of say or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interest. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
(emphasis supplied)
It is, therefore, not possible to accept the contention advanced by the learned counsel for the petitioners that the notification deserves to be quashed as it is vague.
It is also not possible to accept the contention of the learned counsel for the petitioners that the award should be set aside. The petitioners had an opportunity to make a claim for compensation by placing material in regard to the compensation to be determined but they did not. The award was made in June 2013. According to the petitioners, they acquired knowledge of the acquisition proceeding in February 2013. Nothing prevented the petitioners from placing material in support of their claim for compensation.
Learned counsel for the petitioners also contended that the land has been wrongly shown as private and agricultural in the declaration made under Section 3-D of the Act. It was always open to the petitioners to raise this issue by filing objections for correct determination of the compensation but this cannot be made a ground to set aside the declaration made under Section 3-D of the Act or the award made under Section 3G(1) of the Act. In any view of the matter if the petitioners are not satisfied with the amount of the compensation that has been determined under Section 3G(1) of the Act, they can always take recourse to arbitration proceedings as contemplated under Section 3G(5) of the Act. This, however, cannot be made a ground to set aside the award.
The contention of the petitioners that no survey was conducted prior to acquisition or prior to making the award cannot be accepted. The subsequent survey was carried out at the instance of the petitioners when they filed representations.
The contention of the learned counsel for the petitioners that the acquisition proceedings would lapse under the provisions of Section 24(2) of 2013 Act cannot also be accepted for the simple reason that the award was made within a period of five years prior to 1 January 2014 and not beyond five years.
There is, therefore, no merit in any of the submissions advanced by the learned counsel for the petitioners. The writ petition is, accordingly, dismissed. Interim order, if any, stands vacated.
Order Date :- 28.11.2017
Akram
(Jayant Banerji,J.) (Dilip Gupta,J.)
Enclosure to the Judgment
