Allahabad High Court
Brajkishore Dubey And Another vs Union Of India And 4 Others on 31 May, 2024
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:100705-DB
Court No. - 21
Case :- WRIT - C No. - 44150 of 2023
Petitioner :- Brajkishore Dubey And Another
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- Vaibhav Kumar Verma
Counsel for Respondent :- A.S.G.I.,C.S.C.,Dharmendra Singh,Sanjay Kumar Om,Swetashwa Agarwal
Hon'ble Manoj Kumar Gupta,J.
Hon'ble Kshitij Shailendra,J.
1. Heard Shri Rahul Dwivedi, learned counsel for the petitioners, Shri Rajiv Gupta, learned Additional Chief Standing Counsel for the State-respondents, Shri Santosh Kumar Singh for respondent Nos.2 and 4 and perused the record.
2. The instant writ petition has been filed with a prayer to quash the notification dated 26.03.2018 issued under Section 3D of the National Highways Act, 1956 (hereinafter referred to as 'the Act') to the extent of Arazi No.1 measuring 0.1863 hectares and Arazi No.2 measuring 0.08080 hectares situated at Village Vishunpur-Hasilpur, Tehsil- Chhibramau, District Kannauj in view of subsequent notification dated 18.12.2020 issued under Section 3D of the Act. Challenge has also been made to the order dated 12.06.2023 (date 12.05.2023 mentioned at the top but order signed on 12.06.2023), passed by the District Magistrate, Kannuaj as well as order dated 28.02.2022 passed by the Competent Authority/Additional District Magistrate (Land and Revenue), Kanpur Nagar whereby the petitioners' representations have been disposed of with certain observations. Another prayer made is for restraining the respondents from interfering in possession of the petitioners over the aforesaid property at the strength of first notification.
3. The petitioners claim ownership in the subject land through succession from their late father who had purchased the same vide sale deed dated 27.06.1974. A notification dated 01.09.2017 was issued under Section 3A of the Act for widening of national highway in Village-Vishunpur-Hasilpur. It included the land of the petitioners as well. It was followed by notification dated 26.03.2018 under Section 3D of the Act, published on 01.04.2018. The petitioners claim to have raised some objections against the said notifications with a prayer to exempt their land from acquisition. It is pleaded that another notification under Section 3A was published in daily newspapers dated 12.07.2018 followed by notification dated 19.10.2018 under Section 3D and that in another final notification dated 18.12.2020 issued under Section 3D of the Act, the petitioners' land was excluded from acquisition proceedings. It is stated that an award was declared on 28.02.2022 in furtherance of notifications dated 01.09.2017 and 26.03.2018, which is illegal.
4. The petitioners filed Writ-C No.22048 of 2022 (Brajkishore Dubey and another vs. National Highway Authority and another) alleging that their land had never been acquired but award had been declared without there being any declaration under Section 3D of the Act. The said petition was disposed of by a Co-ordinate Bench of this Court by order dated 22.08.2022 permitting the petitioners to file a detailed representation before the Competent Authority with a direction to the latter to decide all the issues raised therein by passing a reasoned and speaking order within stipulated period of time. The representation filed by the petitioners, thereafter, was disposed of by the Additional District Magistrate, (Land Acquisition), Kanpur Nagar by order dated 12.10.2022 observing that award was lawfully declared on 18.12.2020 in furtherance of notifications dated 01.09.2017 and 26.03.2018 and the petitioners may approach the office of the Competent Authority for getting the compensation released in their favour.
5. The reliefs in the instant petition have been claimed on the ground that, without inquiry, the National Highways Authority of India (in short 'N.H.A.I.') notified the petitioners' property for acquisition but, later on, the land was excluded in the subsequent notifications under Section 3D of the Act. Therefore, the award is per se illegal and not only the orders impugned but also the award be set aside and the petitioners' land be exempted from acquisition.
6. This Court proceeded to examine the challenge made by the petitioners and invited response from the respondents and by order dated 13.02.2024, the respondent No.4 was directed to produce an exhaustive map indicating the acquisition based on notifications dated 26.03.2018 and 18.12.2020. An interim order restraining demolition was also passed which was extended from time to time. On 08.04.2024, learned counsel for N.H.A.I. was granted time to bring on record coloured plans superimposed by the proposed road to be constructed in pursuance of first and second set of notifications dated 07.08.2020 and 18.12.2020. Certain affidavits were filed by the respondents from time to time, however, the same did not specifically answer the queries raised by this Court. Later on, on the specific direction of the Court, a detailed supplementary counter affidavit was filed on behalf of respondent Nos. 2 and 4 annexing therewith superimposed plans demonstrating the land acquired through different sets of notifications issued from time to time.
7. In the said counter affidavit, it is stated that the Ministry of Road, Transport and Highways, Government of India issued notification dated 01.09.2017 under Section 3A of the Act to acquire the land of different villages situated at the stretch of NH- 91 from 289.00 Kms. to 356.00 kms from Aligrah to Kanpur Section for the purposes of widening of the National Highway. Total area proposed to be acquired was 167.5749 hectares and the petitioners' land covered by Gata No.1 measuring 0.1863 hectare and Gata No.2 measuring 0.1398 hectare was acquired under the said notification, vide entry at Item No.12. The said notification was published on 10.09.2017 in the daily newspapers whereafter, notification under Section 3D was published on 26.03.2018. This notification included petitioners' land covered by Gata No.1 measuring 0.1863 hectares and Gata No.2 measuring 0.0808 hectares. It is further stated that to fulfil the requirements of the project, some additional land was required for widening of NH-91 in package No. IV, due to which, another notification dated 05.07.2018 was issued under Section 3A of the Act. It was followed by notification dated 01.10.2018 under Section 3D. Another notification dated 07.08.2020 was published under Section 3A of the Act proposing to acquire some more land from 55 villages. The same was followed by notification dated 18.12.2020 under Section 3D, by which time, National Highway-91 got changed as National Highway-34. Regarding the petitioners' rights at the strength of sale deed of 1974, it is stated that their names are not recorded in the revenue records and the names of original vendors from whom the petitioners' father had purchased the property, are still there in records.
8. It is further stated in the supplementary counter affidavit that the land covered by Gata Nos. 1 and 2 is shown at the junction point of Aligarh-Kanpur Road and Chhibramau-Saurikh- Bidhura road and there being a very narrow space at the junction point, the same is resulting in many accidents and due to that reason, the area has been declared as "accident prone area" (black spot area) giving rise to pressing necessity to widen the road as well as for developing the roundabout (Tiraha) for smooth running of traffic. The supplementary counter affidavit is accompanied by all the notifications describing land acquired thereby with the passage of time by colour shading on superimposed coloured maps.
9. Learned counsel for the petitioners vehemently argued that the petitioners' land was proposed to be acquired by first notification under Section 3A of the Act, but, later on, due to change in alignment, their land was not shown in the subsequent notifications. Therefore, the respondents cannot disturb their possession.
10. Per contra, Shri Rajiv Gupta alongwith Shri Santosh Kumar Singh, learned counsel for the respondents submitted that entire land of the petitioners was covered by first notification dated 01.09.2017 under Section 3A of the Act followed by the notification dated 26.03.2018 under Section 3D. Second time, based on additional necessity, when another notification under Section 3A was issued on 29.06.2018 followed by notification dated 01.10.2018 under Section 3D, the land of the petitioners was not shown therein for the simple reason that by the said notifications, the land of other villages was acquired to complete the project and, therefore, there was neither any occasion nor any necessity to issue another notification for acquiring petitioners' land which had already been acquired by the previous notifications. Similar is the stand taken with regard to the notifications issued on 07.08.2020 and 18.12.2020. The submission, therefore, is that once the entire holdings of the petitioners had vested in the Authority pursuant to the notification issued under Section 3D of the Act for the first time, the petitioners have no claim over the land and, at the best, they may be entitled for compensation, for which, appropriate directions have already been issued under the orders passed by the Competent Authority as well as the District Magistrate.
11. Refuting the submissions advanced, learned counsel for the petitioners argued that there is no black spot or accident prone area on the tri-junction and any observation made in that regard is factually incorrect. He also submits that entire action is politically motivated. By placing reliance on the judgment of Supreme Court in Hari Ram and another vs. State of Harayana and others, (2010) 3 SCC 621, he submits that actions of the State Authorities have to be fair and for legitimate reasons taking into consideration the rights of the citizens and in the matters arising out of acquisition proceedings where the prayer for release of land is made, the government officials must act with care and caution and their actions must satisfy the test of reasonableness.
12. Having heard learned counsel for the parties and having carefully examined the record, the Court finds that the petitioners' holding in Arazi Nos.1 and 2 were covered by the notification dated 26.03.2018 under Section 3D of the Act. The subsequent notifications was for acquisition of additional land of different villages to fulfil the project requirements and not to supersede the original notifications. The contention that the subsequent notifications were issued as there was change of alignment and has the effect of anulling the earlier notification is factually incorrect. The superimposed maps filed alongwith supplementary counter affidavit clearly demonstrate the shaded portion in red lines as the area covered by notifications issued for the first time and the additional area acquired through notifications issued for the second time, in green shaded lines.
13. Additionally, the Court finds that the petitioners raised the same pleas, for the first time by filing Writ C No.22048 of 2022, however, this Court did not accept the challenge but relegated them to approach the Competent Authority by way of representation. The representation having been decided by the Competent Authority on 12.10.2022 by referring to the notifications issued from time to time, the Court does not find any perversity in the findings recorded in the said order.
14. The petitioners also filed Writ-C No. 34563 of 2022 challenging the order dated 12.10.2022 and again raised the same contention but the Co-ordinate Bench again relegated them to approach the District Magistrate as well as revenue authorities for redressal of their grievance. Having found that even the names of the petitioners were not recorded in the revenue record, the writ petition was disposed of by order dated 08.12.2022 with an observation that the District Magistrate would decide the matter strictly in accordance with law. It is in pursuance of the said order that the District Magistrate has decided the petitioners' representation by order dated 12.06.2023 recording finding in relation to all the notifications issued by the N.H.A.I. The District Magistrate has also observed that the petitioners' land having vested in the Authority, they may approach the Competent Authority for getting the compensation released in their favour.
15. The Court may notice that after the District Magistrate decided the claim of the petitioners by order dated 12.06.2023, they approached this Court third time by filing Writ-C No.36333 of 2023 which was disposed of as withdrawn with liberty to the petitioners to avail such other remedy as may be advised. The petitioners, instead of availing other remedies, have again filed the instant petition for the similar/identical reliefs agitating the same issues, which, in substance, appears to be fourth petition on the same pleas and contentions.
16. As regards contention of learned counsel for the petitioners that there is no black spot or accident prone area on the tri-junction, we may observe that this Court is not an expert body to examine the said issue and it is for the Highways Authorities as well as the District Administration to understand the significance of a particular locality for the purposes of smooth flow of traffic. The Authorities, before and during the course of acquisition, carry out survey of the land proposed to be acquired and once they have arrived at a conclusion that the tri-junction on which the petitioners' land is situated, would be required to facilitate free flow of traffic, we find no force in the contention that the action of NHAI in acquiring their land is politically motivated or in any manner illegal.
17. The Court has also carefully examined judgment of Supreme Court in Hari Ram and another (supra), as cited by on behalf of the petitioner, in the light of material placed on record and we are of the considered opinion that action of the respondents in acquiring the petitioners' land does not suffer from any unreasonableness and, hence, the judgment cited is of no help.
18. For all the aforesaid reasons, we are of the view that the contentions raised by the petitioners have no merit so as to warrant any interference in the orders or notifications impugned.
19. The writ petition is, accordingly, dismissed, however, without prejudice to the rights of the petitioners to approach the authorities for payment of compensation. Interim order dated 13.02.2024, as extended from time to time, stands discharged. No order as to costs.
Order Date :- 31.5.2024
Jyotsana
(Kshitij Shailendra, J.) (Manoj Kumar Gupta, J.)
