Union Of India vs State Of Chhattisgarh
2023 Latest Caselaw 331 Chatt

                                      1



                                                                     NAFR
          HIGH COURT OF CHHATTISGARH AT BILASPUR
                       WPC No. 736 of 2018
 Union Of India Through Executive Engineer N. H. Division Jagadalpur
  Tehsil   Jagdalpur   District   Bastar Chhattisgarh.,    District :
  Bastar(Jagdalpur), Chhattisgarh
                                                           ---- Petitioner
                                Versus
1. State Of Chhattisgarh Through Secretary Department Of Revenue And
   Disaster Management, Naya Raipur Chhattisgarh., District : Raipur,
   Chhattisgarh
2. Sub Divisional Officer, Land Acquisition Officer, Jagadalpur District
   Jagdalpur Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh
3. Birendra Kumar Lala S/o Vilayati Ram Lala Aged About 39 Years R/o
   Main Market, Kirandul, District Dantewada Chhattisgarh., District :
   Dantewada, Chhattisgarh
4. Navratan (Deleted Through Lrs) In Compliance Of Honble Court Order
   Dated 22/08/2022 And 23/09/2022
         4(1) - Smt. Manju Devi Lunkad W/o Shri Narendra Lunkad Aged
         About 52 Years, R/o. Shri Parshawanath Square, Circuit House,
         Sadar Ward, Jagdalpur, District Bastar, Chhattisgarh
5. Dhanay S/o Pavaiya Aged About 38 Years R/o Village Hatkachora,
   Tahsil   Jagdalpur,   District  Bastar Chhattisgarh., District :
   Bastar(Jagdalpur), Chhattisgarh
                                                         ---- Respondent

For Petitioner : Mr. Ramakant Mishra, Dy.S.G.

   For State                      :       Mr. Ghanshyam Patel, G.A.
   For Respondent No.3 & 4(1)     :       Mr. Ashish Surana, Advocate



                       WPC No. 2196 of 2018

 Birendra Kumar Lala S/o S/o V.K. Agrawal Aged About 58 Years R/o House No. 1, Happy Homes, Mahavir Nagar, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

---- Petitioner Versus

1. Union Of India Through Secretary, Ministry Of Road, Transport And Highways, New Delhi., Delhi

2. National Highway Authority Of India, Through Its Project Director, National Highway No. 43 (New National Highway No. 30), Dhamtari

Jagdalpur, Jagdalpur, District Bastar Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

3. Chief Engineer, Public Works Department, National Highway, Raipur Region, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

4. Executive Engineer, Public Works Department, National Highway Division, Jagdalpur, District Bastar, Chhattisgarh., District : Bastar (Jagdalpur), Chhattisgarh

5. Sub Divisional Officer, Revenue Cum- Competent Authority/ Land Acquisition Officer (National Highway Acquisition), Jagdalpur, District Bastar, Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

---- Respondent

For Petitioner : Mr. Ashish Surana, Advocate For Respondent No.1, 3 & 4 : Mr. Ramakant Mishra, Dy.S.G.

        For Respondent No. 2           :        Mr. Himanshu Pandey, Advocate
        For State                      :        Mr. Ghanshyam Patel, G.A.


                      Hon'ble Shri Justice P. Sam Koshy
                               Order on Board

17/01/2023

1. The present two writ petitions have been filed one i.e. WPC No. 736/2018 by the Union of India seeking for permission of this Court seeking for denotification of the land situated at village Hatkachora, Tahsil Jagdalpur, District Bastar in khasra No. 141/1/1, 141/1/2, 141/1/3 and 141/1/4 measuring 0.400 hectare, whereas in the other the petitioner in WPC No. 2196/2018 has sought for the relief of a direction to the respondents to immediately pay compensation in respect of the land belonging to the petitioner which stood acquired vide award dated 07.10.2017 (Annexure P/1) that situates at khasra No. 141/1/1 measuring 0.250 hectares village Hatkachora, Tahsil Jagdalpur, District Bastar.

2. The two writ petitions arises out of the same award in respect of the same parties. The prayer for the Union of India for denotification has been on the ground that the petitioner i.e. the Union of India, N.H. Division, Jagdalpur in the course of widening and construction of the highway found that the said piece of land that situates at khasra No. 141/1/1, 141/1/2, 141/1/3 and 141/1/4 measuring 0.400 hectare is no longer required. It has been found that the petitioner had in the course

of publication of the notification under Sections 3A & 3D of the National Highways Act, 1956 (in short "NH Act of 1956") had mistakenly reflected the aforesaid properties also for acquisition whereas the said piece of land was not required for the purpose of widening and construction of road.

3. According to the learned counsel for the petitioner, the said piece of land was beyond the proposed right of way of NH-43 and thereby mistakenly been included in the notification under Sections 3A & 3D. It has been also found that other adjacent land also have mistakenly been included in the notification and the Union of India therefore has approached this Court now seeking for denotification of those properties from the award dated 07.10.2017.

4. The question or the issue to be considered in the instant case is whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India can permit denotification of land which is included in notification issued under Sections 3A & 3D of the National Highways Act and award has been passed under Section 3G of the NH Act of 1956. The learned counsel for the petitioner relies upon a decision of the Punjab and Haryana High Court in this regard in the case of "Kawal Roop Singh Brar v. The Union of India and others" passed in C.W.P. No. 19923 of 2010 decided on 20.04.2011, wherein according to the petitioner, the High Court had in a writ petition permitted the NHAI to rectify the mistake that had occurred by denotifying a particular piece of land and by notifying another piece of land required for the purpose of the widening and construction of the National Highway.

5. On the other hand the learned counsel for the respondent No. 3 & 4, one of whom is also a petitioner in WPC No. 2196/2018 opposing the prayer of Union of India submits that the National Highways Act does not provide for any provision for denotification of the land which stands acquired under Sections 3A & 3D. According to him the land having got vested with the National Highway Authorities under Section 3D, the department would no longer have the power to denotify any piece of land, neither would this Court have the power, jurisdiction and competence to grant permission for denotification particularly when the

NH Act of 1956 does not provide for such a provision. The High Court cannot in exercise of its power under Article 226 create a law which is otherwise not provided under any law or permit something which is otherwise not permissible under the Act.

6. It is the contention of the learned counsel for the respondents No. 3 & 4 as also the petitioner in WPC No. 2196/2018 that the Land Acquisition Act of 1894 (in short 'Act of 1894') and also the subsequent Act i.e. 'the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013' (in short 'Act of 2013') both have provisions for denotification as would be evident from Section 48 of the Act of 1894 and Section 93 of the new Act of 2013, which by itself would show that there is a deliberate exclusion by the Law Makers, so far as National Highways Act is concerned. Further that since there is a deliberate exclusion, the High Court under Article 226 should not grant the permission for denotification of the land which already has since attained finality.

7. It is also the contention of Mr. Ashish Surana, Advocate that in the course of acquisition of land belonging to the petitioner in WPC No. 2196 of 2018, the National Highway Authorities have also erased all the constructions that were available on the said land and have also cut upon all the trees that stood on the land for the purpose of the construction and widening of the National Highway and at this juncture the said portion of land which stood acquired has since become useless, so far as the petitioner is concerned and for this reason also the prayer of the Union of India should not be acceded to and the writ petition should be rejected.

8. Having heard the contention put forth on either side and on perusal of records, it would be relevant at this juncture to take note of the fact that admittedly the respondents had their land which situated at village Hatkachora, Tahsil Jagdalpur, District Bastar in khasra No. 141/1/1, 141/1/2, 141/1/3 and 141/1/4 measuring 0.400 hectare. The said land stood acquired under the provisions of the NH Act, 1956. The notification under Section 3A(3) of the National Highways Act was published on 20.02.2015 Gazette and on 02.04.2015 in local newspaper and the final notification/declaration under Section 3D of

the aforesaid Act of 1956 was published on 14.09.2015 in the official gazette and thereafter it was published in the local newspaper on 30.09.2015. As a consequence of the said acquisition the National Highway Authorities demolished all the existing structures from the said land and also cut upon all the standing trees from the said land. The land owners were given a permission to raise their constructions leaving open 25 mtrs of land from the center of the road and which the respondent No.3 have done, thereafter some portion of the remaining land was also sold by the respondent No.3.

9. The instant writ petition now has been decided after about more than 2½ - 3 years from the date the notification under Sections 3A & 3D of the National Highways Act was published. It is now the stand of the petitioner in WPC No. 736 of 2018 that the said land is no longer required as the said portion of land was not required for widening of the said road and it stood acquired by way of an error or a mistake on the part of the department. It is also the contention of the Dy.S.G. that the need for filing of the writ petition arose only on account of the fact that the NH Act, 1956 is silent on this part and since the Act is silent, the Department thought it fit for filing a writ petition before this Court seeking the permission of the High Court for grant of permission to denotify the land of the respondents from the acquisition proceedings and from the award dated 07.10.2017.

10. It would be relevant at this juncture to take note of the fact that Section 48 of the old Act i.e. the Land Acquisition Act of 1894 provides for the government to withdraw from the acquisition in the event if the said land is no longer required for the Department. For ready reference Section 48 of the old Act is reproduced herein under:

"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. -

(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay

such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."

11. So also under the new Act of 2013 Section 93 prescribes for a pari materia provision which again for ready reference is being reproduced herein under:

"93. Completion of acquisition not compulsory, but compensation to be awarded when not completed.-

(1) The appropriate Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the appropriate Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land."

12. Both the above said provision of Section 48 of the old Act and Section 93 of Act of 2013 permits the appropriate Government or for that matter the department to withdraw from the acquisition proceedings in the event if the land is not required for the purpose for which it was being acquired subject ofcourse complying with the other statutory conditions stipulated under the said Act.

13. A point to be considered in the instant case is that both Section 48 under the Act of 1894 as also Section 93 under the Act of 2013, the withdrawal from the acquisition would only be permissible unless the possession is taken by the appropriate authority, which in other words mean that in the event if the acquisition stands concluded, the possession having been taken, the authorities concerned would not have the power to withdraw from the acquisition proceedings.

14. It would be trite at this juncture to refer to the judgment of the Hon'ble Supreme Court in the case of "Pimpri Chinchwad New Township Development Authority v. Vishnudev Cooperative Housing Society

and others" 2018(8) SCC 215, wherein in paragraph 32 the Hon'ble Supreme Court has held as under:

"32. Once we hold that the possession of the land in question was taken by the State in accordance with law on 30.05.2004 from the landowners, we have no hesitation in holding that the provisions of Section 48 of the Act were not applicable to the case at hand. In other words, once it is held that the possession of the acquired land was with the State, the land stood vested in the State disentitling the State to release the land from the acquisition proceedings by taking recourse to the provisions of Section 48 of the Act."

15. It goes without saying that the said principles of Law laid down by the Hon'ble Supreme Court squarely apply in a proceeding under Section 93 of the Act of 2013 as well as the provisions are pari materia to Section 48 of the Act of 1894.

16. Coming to the provisions of the NH Act, the bare perusal of the entire statute would by itself reflect that the said Act of 1956 does not provide for any such provision or the power with the National Highway Authority or the concerned Department to withdraw from the acquisition proceedings. On the other hand after the notification under Sections 3A & 3D has been notified and published, sub-section (2) of Section 3D of the Act of 1956 specifically enumerates that upon the publication of the notification under Section 3D, the land shall stand vested absolutely with the Central Government free from all encumbrances.

17. It would also be relevant at this juncture to refer to the observations made by the Hon'ble Supreme Court in the case of "Manish Goel vs Rohini Goel" 2010 (4) SCC 393, though the said judgment was passed under a different statute, but dealing with the powers of the writ Court and the extent the writ Court could exercise its power has been laid down by the Hon'ble Supreme Court in paragraphs No. 14 & 15, which is reproduced herein under:

"14. Generally, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab & Ors. v. Renuka Singla & Ors (1994) 1 SCC 175; State of U.P. & Ors. v. Harish Chandra & Ors. AIR 1996 SC 2173; Union of India & Anr. v. Kirloskar Pneumatic Co. Ltd. AIR 1996 SC 3285; Vice Chancellor,

University of Allahabad & Ors. v. Dr. Anand Prakash Mishra &Ors. (1997) 10 SCC 264; and Karnataka State Road Transport Corporation v. Ashrafulla Khan & Ors. AIR 2002 SC 629).

15. A Constitution Bench of this Court in Prem Chand Garg & Anr. v. Excise Commissioner, U.P. & Ors. AIR 1963 SC 996 held as under:

"12.....An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws."

The Constitution Benches of this Court in Supreme Court Bar Association v. Union of India & Anr. AIR 1998 SC 1895; and E.S.P. Rajaram & Ors. v. Union of India & Ors. AIR 2001 SC 581 held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure."

18. It has been the settled position of law by a catena of decisions by the Hon'ble Supreme Court wherein it has been time and again reiterated that in the course of exercising of the writ powers by the High Court under Article 226, it would not create a law or exercise their powers, which are otherwise not enshrined under the provisions of law. Exercising of such powers, which are otherwise not prescribed would be inconsistent to the substantive law itself. Particularly in the instant case where the Land Acquisition Act of 1894 and the subsequent Act of 2013 both having a clause for withdrawal from the acquisition and the subject Act i.e. the National Highways Act, 1956 not having such a provision, this Court is of the opinion that there seems to be a deliberate exclusion by the Law Makers while enacting the said law and under the circumstances, it would not be fit for this Court in exercise of its writ powers to grant a relief that the petitioner in WPC No. 736/2018 has sought and the writ petition of the Union of India, therefore deserves to be and is accordingly rejected.

19. So far as the writ petition filed by the petitioner in WPC No. 2196/2018 is concerned, taking into consideration the specific provision under Sub-section (2) of Section 3D, wherein subsequent to the publication of

notification under Section 3D, the property stands exclusively vested with the Central Government. There is no reason why the petitioner Birendra Kumar Lala, whose land stood acquired vide the said notification should not be paid the compensation quantified by the authorities so far as his land which stands acquired is concerned.

20. Since this Court has already rejected the prayer of the Union of India so far as granting of permission to denotify the said land is concerned, it is observed that the petitioner i.e. Birendra Kumar Lala shall be entitled for the entire compensation for his land which stood acquired vide award dated 07.10.2017 (Annexure P/1). The concerned authorities under the National Highway so also by the concerned Land Acquisition Officer is directed to ensure that the compensation payable to the petitioner Birendra Kumar Lala is released forthwith.

21. In view of the same, the writ petition of petitioner-Union of India i.e. WPC No. 736/2018 stands rejected and as a consequence the writ petition of the petitioner-Birendra Kumar Lala i.e. WPC No. 2196/2018 stands allowed.

Sd/-

(P. Sam Koshy) Judge Ved