National Highways Authority Of ... vs Sub-Divisional Officer Cum Land ...
2022 Latest Caselaw 4517 Bom

                                         CORRECTED-Judgment in WP2981.2021.odt




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH AT NAGPUR

                 WRIT PETITION NO. 2981 OF 2021

1. National Highways Authority of India
   Through its Project Director, Project
   Implementation Unit, Yavatmal Having its
   office at Chandan Niwas, Plot No.13,
   Kolhe Layout Part-2, Darwha Road,
                                                     .. Petitioners
   Yavatmal

2. Government of India through Secretary,
   Ministry of Road Transport & Highways,
   New Delhi
                    Versus

1. Sub-Divisional      Officer   cum   Land
   Acquisition Officer, Yavatmal
2. Shyamsundar Shribhagwan Jaipuria,
   Aged about : major, r/o : 404, Krushna
   Apartments, Gadge Nagar, Yavatmal
3. Saurabh Nandkishore Jaipuria
   Aged about : major, through its Power of
   Attorney    Holder     :   Shyamsundar
   Shribhagwan Jaipuria r/o : 404, Krushna
   Apartments, Gadge Nagar, Yavatmal
                                                   .. Respondents
4. Naman Naval Agrawal
   Aged about : major, through its Power of
   Attorney    Holder     :   Shyamsundar
   Shribhagwan Jaipuria r/o : 404, Krushna
   Apartments, Gadge Nagar, Yavatmal
5. Manjushri Nilesh Tibedwal,
   Aged about : major, through its Power of
   Attorney    Holder     :   Shyamsundar
   Shribhagwan Jaipuria r/o : 404, Krushna
   Apartments, Gadge Nagar, Yavatmal

                                                                 PAGE 1 OF 18
                                              CORRECTED-Judgment in WP2981.2021.odt




6. Purvi Sanjay Agrawal,
   Aged about : major, through its Power of
   Attorney     Holder    :   Shyamsundar
   Shribhagwan Jaipuria r/o : 404, Krushna
   Apartments, Gadge Nagar, Yavatmal


Mr. Saurabh A. Choudhari, Advocate for petitioners.
Mr. H. D. Dubey, A.G.P. for respondent No.1.
Mr. S. P. Khirsagar, Advocate for respondent Nos.2 to 6.



                         CORAM :         MANISH PITALE, J.
                 RESERVED ON       :     07/04/2022
             PRONOUNCED ON         :     28/04/2022



JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with consent of the learned counsel appearing for the rival parties.

(2) The National Highways Authority of India and the

Government of India through the Ministry of Road Transport and

Highways have filed the present petition challenging order dated

16.03.2021, passed by the respondent No.1 - Sub-Divisional Officer

cum Land Acquisition Officer, Yavatmal. By the said order an

application filed by respondent Nos.2 to 6 i.e. land owners, under

Section 3C of the National Highways Act, 1956, has been allowed and

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specific directions have been given to the petitioners in the context of

0.88 HR land located in Gut No.4, Mouza Madkona, Tahsil and District

- Yavatmal.

(3) The petitioners undertook a project for constructing

National Highway No.361 passing through Gut No.4, Mouza Madkona,

and for that purpose provisions of the aforesaid Act were invoked for

acquisition of land. Petitioner No.2 issued declaration under Section

3A of the aforesaid Act, declaring intention to acquire 1.8261 HR of

land from Gut No.4, in Mouza Madkona. Respondent Nos.2 to 6 raised

objections under Section 3C of the said Act in respect of the acquisition

proposed to be undertaken for construction of the aforesaid National

Highway. It was the case of respondent Nos.2 to 6 that 0.62 HR and

0.26 HR lands from the aforesaid Gut No.4, Mouza Madkona, were

utilized by the petitioners for construction of the said National

Highway No.361, but in the process no steps were taken for follow-up

action regarding acquisition under the provisions of the said Act.

(4) It was claimed that there were documents on record

to show that joint measurement was undertaken, identifying the

aforesaid lands admeasuring 0.62 and 0.26 HR i.e. total 0.88 HR from

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Gut No.4, Mouza Madkona, belonging to respondent Nos.2 to 6, that

was utilized during construction of the said National Highway and yet,

the petitioners had not taken appropriate steps for compensating

respondent Nos.2 to 6. In this backdrop, the said application under

Section 3C of the aforesaid Act was filed, which was allowed by the

impugned order dated 16.03.2021.

(5) The petitioners filed the present petition, wherein

notice was issued for final disposal by order dated 17.08.2021. The

respondent No.1 entered appearance through the Assistant

Government Pleader and respondent Nos. 2 to 6 were also represented

by counsel.

(6) Mr.Saurabh Choudhari, learned counsel appearing

for the petitioners submitted that the impugned order dated

16.03.2021, passed by respondent No.1 was without jurisdiction in the

light of law laid down by the Hon'ble Supreme Court as regards the

nature of objections that could be entertained under Section 3C of the

aforesaid Act. It was submitted that the findings rendered in the

impugned order were well beyond the scope of Section 3C of the said

Act and the direction given in the impugned order for rendering Award

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and disbursing compensation to respondent Nos. 2 to 6, was clearly

beyond the jurisdiction of respondent No.1. It was claimed that

although declaration under Section 3A of the said Act was issued,

there was no follow-up action as expected under Section 3D of the said

Act pertaining to the aforesaid pieces of land and therefore, there was

no question of rendering a land acquisition Award and disbursing

compensation to respondent Nos.2 to 6.

(7) It was further submitted that 0.26 HR land

concerned a service lane and insofar as 0.62 HR land was concerned,

the same was never acquired by the petitioners and an earlier litigation

initiated by respondent No.2 against the Public Works Department of

the State Government claiming that the said piece of land was utilized

for construction of State highway, had met with failure before this

Court. Attention of this Court was invited to order dated 29.06.2010,

passed in Writ Petition No.2282 of 2009, wherein this Court had

dismissed the writ petition filed by respondent No.2 concerning the

very same piece of land admeasuring 0.62 HR in Gut No.4, Mouza

Madkona. The respondent No.2 had claimed that the said piece of

land was utilized for construction of State highway and that therefore,

the State Government through the Public Works Department ought to

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be directed to complete acquisition proceedings in respect of the same

and to pay compensation. The writ petition was dismissed on the

ground that disputed questions of fact were involved, which could not

be decided in writ jurisdiction. On this basis, it was submitted that the

respondent No.1 had erred in passing the impugned order.

(8) The learned counsel for the petitioners further

submitted that due to the direction given in the impugned order, land

acquisition Award dated 31.05.2021 was passed, determining

compensation payable to respondent Nos.2 to 6 for the aforesaid

pieces of land, but since the Award was consequential to the impugned

order and the impugned order was itself unsustainable, the Award

passed by respondent No.1 also deserved to be set aside.

(9) The learned counsel for the petitioners relied upon

judgment of the Hon'ble Supreme Court in the case of Competent

Authority Vs. Barangore Jute Factory and Others (2005) 13 SCC 477

and judgment of the Karnataka High Court in the case of Dr.

V.S.Shukal and Ors Vs. National Highways Authority of India (Ministry

of Road Transport and Highways) and Ors. AIR 2013 Karnataka 65.

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(10) On the other hand, Mr.S.P. Kshirsagar, learned

counsel appearing for respondent Nos.2 to 6 opposed the contentions

raised on behalf of the petitioners. It was submitted that a joint

measurement report on record and the order passed in an appeal

preferred by petitioner No.1, as regards the said aspect of the matter

had met with dismissal at the hands of the Deputy Superintendent of

Land Records, Yavatmal and the said order had attained finality. In the

said order, it was specifically recorded that the joint measurement of

the land in question taken place in the presence of the representative

of petitioner No.1 and that it was found, as a matter of fact, that both

pieces of land admeasuring 0.26 HR and 0.62 HR in Gut No.4, Mouza

Madkona, belonging to respondent Nos.2 to 6 were utilized in

construction of National Highway No.361. This material was

specifically appreciated by respondent No.1 while passing the

impugned order and therefore, the said finding of fact could not be

interfered with in the present petition. It was submitted that the

petitioners were unable to deny the fact that 0.88 HR land in Gut

No.4, Mouza Madkona, was indeed utilized for construction of

National Highway No.361 and therefore, it could not lie in the mouth

of the petitioners that since there was no order/declaration issued

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under Section 3D of the aforesaid Act, the direction to pay

compensation could not be claimed by respondent Nos.2 to 6. It was

submitted that the material on record was correctly appreciated by

respondent No.1 while passing the impugned order.

(11) Insofar as the aspect that respondent No.1 had

exceeded jurisdiction under Section 3C of the said Act, it was

submitted that the petitioners could not support their claims on facts

before the said authority and it was on the basis of material brought

on record that the respondent No.1 correctly exercised jurisdiction in

favour of respondent Nos.2 to 6. It was submitted that challenge to

the Award at the behest of the petitioners for whose benefit the

acquisition proceedings were undertaken, was unheard of and totally

unsustainable.

(12) Mr.H.D. Dubey, learned Assistant Government

Pleader appeared on behalf of respondent No.1 and defended the

impugned order.

(13) Before dealing with contentions raised on behalf of

the petitioners concerning findings on merits rendered by respondent

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No.1, it would be appropriate to first deal with the contention

regarding the scope of jurisdiction under Section 3C of the said Act.

The learned counsel for the petitioners relied upon the judgment of the

Supreme Court in the case of Competent Authority Vs. Barangore Jute

Factory and Others (supra) and that of the Karnataka High Court in

the case of Dr. V.S. Shukla Vs National Highways Authority of India

(supra). A perusal of the aforesaid judgments would show that it has

been laid down that the scope of jurisdiction under Section 3C of the

said Act, is not as wide as the jurisdiction exercised under Section 5A

of the Land Acquisition Act, 1894. It is laid down that the land owner

has a very limited right to object under Section 3C of the aforesaid Act

and such an objection can only be limited to the question of use of the

land under acquisition for the purposes other than those declared

under Section 3A of the said Act. It is laid down that Section 3C of the

said Act confers no right to object to the acquisition as such. This

position has been followed by the Karnataka High Court and it is laid

down that the land owners are not entitled to get the acquisition

proceedings invalidated on the ground that some of their objections

were not considered.

(14) Thus, it becomes clear that under Section 3C of the

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said Act, the nature of objections that can be raised is limited and the

very acquisition cannot be challenged. In the present case, respondent

Nos.2 to 6 as owners of the aforesaid pieces of land, together

admeasuring 0.88 HR in Gut No.4, Mouza Madkona, raised detailed

objections under Section 3C of the said Act. A perusal of the

objections raised on behalf of respondent Nos.2 to 6 along with the

documents placed on record before respondent No.1 would show that

they raised serious concerns about being deprived of the aforesaid

pieces of land, without being compensated for the same. In fact, the

tenor of the entire objections was that they ought to be compensated,

not only for possession of the said pieces of land being taken for

construction of Highway No.361, but also for the reason that the

remaining area of land belonging to the said respondents had been

rendered either unmarketable or inaccessible, thereby diminishing the

utility of the remaining area of land belonging to them.

(15) It was also indicated that fair compensation was due

to them and it was claimed that the whole designing of the National

Highway was "eccentric" thereby indicating that the said pieces of land

need not have been utilized for construction of National Highway

No.361. A number of documents were annexed with the said

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objections in support of the issues raised therein. This Court is

convinced that the nature of objections raised on behalf of respondent

Nos.2 to 6, did fall within the scope and jurisdiction of respondent

No.1 under Section 3C of the said Act. Therefore, the contentions

raised on behalf of the petitioners that respondent No.1 exceeded its

jurisdiction while passing the impugned order, cannot be accepted.

(16) The petitioners have also vehemently contended

that the observations made in the impugned order were uncalled for

and the direction to pay compensation by preparing land acquisition

Award for having utilized the aforesaid pieces of land could not have

been granted, particularly when proceedings under Section 3D of the

said Act were not undertaken in respect of the said two pieces of land

in Gut No.4, Mouza Madkona.

(17) A perusal of the impugned order shows that the

respondent No.1 has stated in great detail, the rival contentions and

specific issues raised by the parties. In the context of the material

placed before respondent No.1, it was found as a matter of fact that

both pieces of land i.e. 0.26 HR and 0.62 HR in Gut No.4, Mouza

Madkona, belonging to respondent Nos.2 to 6 had been indeed utilized

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for construction of National Highway No.361. The report pursuant to

exercise of joint measurement, where the representative of petitioner

No.1 was present and so were respondent Nos.2 to 6, was placed on

record before respondent No.1. It was appreciated in the context of

the map on record and order dated 04.10.2018, passed by the Deputy

Superintendent of Land Records, Yavatmal, wherein specific findings

were given, that both the aforesaid pieces of land were indeed utilized

for construction of National Highway No.361.

(18) The respondent No.1 found that the petitioners

could not dispute such documents on record and it was clear that both

the aforesaid pieces of land belonging to respondent Nos.2 to 6 had

indeed been utilized for construction of National Highway No.361 and

that the said respondents had been deprived of the said pieces of land.

In fact, the respondent No.1 found from the documents on record that

the petitioner No.1 was collecting toll for construction of the said

stretch of National Highway No.361, in respect of which respondent

Nos.2 to 6 stood dispossessed from 0.62 HR of land in Gut No.4,

Mouza Madkona. On the basis of such finding of fact, the respondent

No.1 concluded that since the two pieces of land belonging to

respondent Nos.2 to 6 had been undisputedly utilized for construction

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of National Highway No.361, the objections and apprehensions

expressed by the said respondents were justified. It is in this context

that the direction was given by respondent No.1 for rendering land

acquisition Award and suitably compensating respondent Nos.2 to 6

for utilization of the said two pieces of land. It is also undisputed that

declaration under section 3A of the said Act was issued for acquisition

of the said pieces of land. Hence, this Court is of the opinion that the

findings of facts rendered by respondent No. 1 on the basis of material

on record cannot be found fault with.

(19) This Court also perused the documentary material

placed on record. It clearly shows that the joint measurement report

and the map prepared pursuant thereto undeniably establish the fact

that the aforesaid two pieces of land belonging to respondent Nos.2 to

6 were indeed utilized in the said project of the petitioners. The

respondent Nos.2 to 6 stood dispossessed and deprived of the said

pieces of land. There can be no dispute about the fact that the said

respondents deserved to be suitably compensated for the same. The

order dated 04.10.2018 passed by the Deputy Superintendent of Land

Records, Yavatmal, shows that the appeal filed by petitioner No.1 as

regards the joint measurement report was dismissed and it was

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specifically recorded that the aforesaid pieces of land admeasuring

0.26 HR and 0.62 HR from Gut No.4, Mouza Madkona, belonging to

respondent Nos.2 to 6, were indeed utilized for the project concerning

National Highway No.361. The said order was admittedly not

challenged any further by petitioner No.1, thereby showing that the

same attained finality.

(20) Much emphasis was placed on behalf of the

petitioners on order dated 29.06.2010, passed by this Court whereby

Writ Petition No.2282 of 2009 filed by respondent No.2 was dismissed.

A proper appreciation of the said order passed by this Court would

show that the respondent No.2 had claimed that the State Government

through the Public Works Department had encroached upon 0.62 HR

land from Gut No.4, Mouza Madkona, for construction of the State

highway and that no compensation was paid for the same. The State

Government had denied the aforesaid claim of respondent No.2. A

Division Bench of this Court while considering the writ petition under

Article 226 of the Constitution of India found that in the light of the

rival claims made by the parties, disputed questions of fact were

involved, which could not be gone into in the said writ petition. On

this basis, the writ petition was dismissed.

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(21) Even if the said writ petition filed by the respondent

No.2 was dismissed, the effect of the same was that the respondent

No.2 failed to establish the fact that the State Government through the

Public Works Department had utilized 0.62 HR land from Gut No.4,

Mouza Madkona, for construction of the State highway. But, the same

would not result in any finding that could be positively rendered in

favour of the petitioners in the present case. It appears from the tenor

of the contentions raised on behalf of the petitioners before this Court

that it was the State Government, which may have utilized 0.62 HR

land from Gut No.4, Mouza Madkona, which thereafter, may have

been subsumed or utilized in construction of National Highway

No.361, and that therefore, the petitioners could not be held

responsible for payment of compensation for utilization of said pieces

of land. The aforesaid contention and approach adopted by the

petitioners, cannot be accepted, particularly because when this Court

put pointed queries to the learned counsel for the petitioners, he could

not demonstrate that National Highway No.361 did not run through

the aforesaid pieces of land belonging to respondent Nos.2 to 6. On the

contrary, respondent Nos. 2 to 6 proved that the said pieces of land

were indeed utilized for construction of the said highway, as per the

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joint measurement report and the order of the Deputy Superintendent

of Land Records.

(22) By the said order, the Deputy Superintendent of

Land Records found that the aforesaid pieces of land were utilized for

construction of National Highway No.361. In fact, on the basis of joint

measurement report, wherein the representative of petitioner No.1 was

also present and he signed the same, it was recorded as a matter of

fact that the aforesaid pieces of land belonging to respondent Nos.2 to

6 were indeed utilized for construction of National Highway No.361

and this material was appreciated by the Deputy Superintendent of

Land Records while dismissing the appeal filed by petitioner No.1. In

the face of such material available on record, it becomes clear that

dismissal of Writ Petition No.2282 of 2009, by the Division Bench of

this Court cannot be of any assistance to the petitioners in this case.

(23) Having appreciated the material available on record,

the respondent No.1 in the impugned order correctly allowed the

application/objection filed by respondent Nos.2 to 6. Having come to

specific finding of facts that the aforesaid pieces of land belonging to

respondent Nos.2 to 6 were indeed utilized for construction of

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National Highway No.361, it was a logical corollary for respondent

No.1 to have directed payment of appropriate compensation to

respondent Nos.2 to 6. The petitioners cannot hide behind the excuse

that appropriate proceeding under Section 3D of the Act was never

undertaken regarding the said pieces of land and therefore, there was

no question of rendering an Award for payment of compensation to

respondent Nos.2 to 6.

(24) In fact, it is an admitted position that Award dated

31.05.2021, was passed by the respondent No.1 determining the

compensation payable to respondent Nos.2 to 6 for utilization of the

aforesaid two pieces of land admeasuring 0.26 HR and 0.62 HR from

Gut No.4 in Mouza Madkona. A copy of the said Award was not

placed before this Court with the writ petition on behalf of the

petitioners and it was respondent Nos.2 to 6 who placed the same on

record. It is surprising that the petitioner,s having utilized the

aforesaid pieces of land for construction of National Highway No.361,

have challenged the very Award determining compensation payable to

respondent Nos.2 to 6. The petitioner No.1 is the authority for whom

the entire exercise of acquisition and utilization of the lands in

question took place and when the material on record undeniably

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demonstrated that the said two pieces of land were indeed utilized for

construction of National Highway No.361, the petitioners could not

have challenged the Award dated 31.05.2021, in the present writ

petition.

(25) In view of the above, this Court is convinced that

there is no substance in the contentions raised on behalf of the

petitioners. Land owners whose lands are acquired ought to be suitably

compensated for the same. It is the right of respondent Nos.2 to 6, for

being suitably compensated and the said right is guaranteed under

Section 300-A of the Constitution of India. Hence, the petition is

found to be without any merit.

(26) Accordingly, the writ petition is dismissed. Rule is

discharged. No costs.

[ MANISH PITALE J.]

KOLHE

Digitally signed byRAVIKANT CHANDRAKANT KOLHE Signing Date:28.04.2022 14:44 PAGE 18 OF 18