Rajasthan High Court

Nirmala Rathore W/O Shri Gopal ... vs Union Of India on 18 August, 2021

Bench: Ashok Kumar Gaur

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             S.B. Civil Writ Petition No. 15829/2019

1.     Nirmala Rathore W/o Shri Gopal Singh Rethore D/o Late
       Shri Bhanwar Singh, Aged 61 Years, R/o Peelwa, Nagaur,
       Peelwa-341503 (Raj.)
2.     Sarla Chauhan W/o Late Shri Bane Singh D/o Late Shri
       Bhanwar Singh, Aged 62 Years, R/o House No. 1186,
       Sector - 9A, Gurgaon-122001 (Haryana)
3.     Urmila Rathore W/o Shri Roop Singh Rethore D/o Late
       Shri Bhanwar Singh, Aged 55 Years, R/o 5/233, Kala
       Kuan, H. Board, Alwar-301001 (Raj.)                        ----Petitioners
                                    Versus
1.     Union of India, through the Secretary, Ministry Of Road,
       Transport and Highway, Government of India, New Delhi.
2.     The Chief Engineer, (National Highway), Public Works
       Department, Government of Rajasthan, Jaipur (Raj.)
3.     The      Prescribed      Authority,         (Land         Acquisition)     And
       Additional District Collector, (First), Alwar, Rajasthan.
4.     The Project Director and Executive Engineer, Public Works
       Department,        National        Highway,          Dundahera,          Delhi-
       Gurgram Border, NH-8 KM, 24th Mile Stone, Gurugram,
       Haryana-122016                                            ----Respondents
5.     Bajrang Singh S/o Tejpal Singh, Aged 48 Years, R/o
       Jaipur Road, Baniya Ka Bag, Alwar (Rural), Alwar-301001
       (Raj.)
6.     Krishna Kumar S/o Tejpal Singh, Aged 42 Years, R/o
       Tatarpur House, Baniya Ka Bagh, Jaipur Road, Opposite
       Road Way Booking, Alwar-301001 (Raj.)
7.     Suman D/o Tejpal Singh, Aged 41 Years, R/o Behind
       Upnayan School, FCI Godam Road, Indra Colony, Bikaner-
       334001 (Raj.)                          ----Proforma Respondents


For Petitioner(s)         :     Mr.Rajendra Prasad, Senior Advocate
                                assisted by Mr.Manish K. Sharma,
                                Adv. & Mr.Saurabh Pratap Singh, Adv.
For Respondent(s)         :     Mr.Sudhir Gupta, Senior Advocate
                                assisted by Mr.Vikas Soni, Adv.,
                                Ms.Shweta Chauhan, Adv. & Mr.Vijay
                                Mittal, Advocate.


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                                       Mr.Pankaj Choudhary, Advocate for
                                       Mr.Rohit Choudhary, Dy.Govt.Counsel.
                                       Mr.Sushil Pujari, Adv. & Mr.Yogesh
                                       Purjari, Adv. for Nos.5 to 7.
                                       Mr.Akshay       Sharma,       Addl.Govt.
                                       Counsel (Through VC)


                 HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                           ORDER

         Order Reserved on             :       2nd August, 2021
REPORTABLE
         Date of Order                 :       18th August, 2021

         By the Court:

The instant writ petition has been filed by the petitioners

challenging the validity of notification dated 21.08.2018 and

declaration dated 21.12.2018 issued under Section 3A(1) and 3D

respectively of the National Highways Act, 1956 (hereinafter shall

be referred to as 'the Act of 1956') and the award dated

08.03.2019 passed under Section 3G of the Act of 1956.

2. The facts, as pleaded in the writ petition, in nutshell, are that

father of the petitioners had purchased land in February, 2002

admeasuring 0.64 hectare in Khasra No.4177 of village Pinan,

Tehsil Rajgarh, District Alwar. The land use of the aforesaid land

was converted for petrol pump measuring 1973.94 Sq.Mtrs. and

further the land was converted for commercial use vide order

dated 27.01.2004, as per the order passed by the Sub Divisional

Officer, Rajgarh, District Alwar and the remaining land 2092.20

Sq.Mtrs. remained unconverted as 'Barani'.

3. The petitioners have pleaded that their father after setting

up a petrol pump, as allotted to him by the Indian Oil Corporation

(3 of 30) [CW-15829/2019]

Limited, executed a gift deed of an area measuring 2092.20

Sq.Mtrs. in favour of the petitioners-four daughters and mutation

was also sanctioned accordingly by the revenue authorities. The

father of the petitioners transferred the dealership in favour of his

four daughters in the name of M/s.Jai Ambey Indian Oil Company

on 25.11.2010.

4. The petitioners have further pleaded that after demise of

their father, the land admeasuring 1973.94 Sq.Mtrs. was mutated

in the name of the petitioners viz., Vimla, Sarla, Nirmala and

Urmila and due to demise of Smt.Vimla in the year 2018, her

share was transferred to her legal representatives i.e. proforma

respondents No.5 to 7 viz., Bajrang Singh, Krishna Kumar and

Suman. The petitioners have pleaded that they and the

proforma respondents are in the possession of the land in question

being recorded khatedars and owners.

5. The petitioners have pleaded that the respondent-Ministry of

Road, Transport and Highway, Government of India, New Delhi in

order to acquire the land belonging to the petitioners and others

for the purpose of building (widening/two/four laning with paved

shoulder etc.) maintenance, management and operation of

National Highway No.148N in the stretch of the land from KM

79.395 to KM 149 in the District Alwar, Rajasthan, issued

notification dated 21.08.2018 under Section 3A(1) of the Act of

1956. The said notification was also published in the daily

newspapers-Times of India and Dainik Bhaskar, as per Section

3A(3) of the Act of 1956 and further objections were invited from

the aggrieved persons.

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6. The petitioners have pleaded that the Additional Collector,

Alwar was appointed as Competent Authority and Land Acquisition

Officer (hereinafter shall be referred to as 'the CALA') to hear the

objections in response to the notification issued under Section

3A(1) of the Act of 1956.

7. The petitioners have further pleaded that they filed their

objections within the prescribed period indicating that nature of

the land was wrongly shown as Barani because the said land had

already been converted for commercial purpose i.e. for running

petrol pump and the remaining land was residential.

8. The petitioners objected that their father being a freedom

fighter was allotted a petrol pump and as such after his death, the

petrol pump was the only source of livelihood and they had made

a huge investment for commissioning and running of the said

petrol pump. The petitioners also raised an objection that no

appropriate survey of the land was done before acquisition and

request was made for dropping the acquisition. The petitioners

have pleaded that objections filed by them were duly

acknowledged and 08.10.2018 was the date fixed for hearing the

objections.

9. The petitioners have further pleaded that the date fixed for

hearing the objections was preponed for 04.10.2018 and the

persons whose land was acquired were asked to remain present

either through lawyer or in person to raise their objections before

the CALA.

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10. The petitioners have pleaded that vide common order dated

11.10.2018, the CALA (respondent No.3) decided and disallowed

the objections of the petitioners and other persons.

11. The petitioners have pleaded that the respondents thereafter

issued a declaration under Section 3D of the Act of 1956, vide

notification dated 21.12.2018 and the same was also published in

the Rajasthan Patrika newspaper on 05.01.2019. The petitioners

thereafter made a representation to the respondent No.3 in

respect of the declaration of acquisition notification dated

21.12.2018 and raised an issue with regard to the nature of land

being shown incorrectly as 'Barani'. The petitioners also raised an

objection about their only source of income and livelihood being

taken away and if the petrol pump was to be removed, then some

other land was required to be allotted to the petitioners on

minimum price on the State Highway and further make payment

in their favour toward loss of earning by way of proper

compensation.

12. The petitioners have pleaded that the respondent No.3

decided the claim of the petitioner as Claim No.172 and held that

compensation was to be determined, as per the revenue record

including compensation for the structures & as per the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 and the National

Highways Authority of India was to give adequate compensation

for loss of livelihood and also letter was to be written to the

General Manager of Indian Oil Corporation Limited to allot a petrol

pump to the petitioners at an alternative site.

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13. The petitioners have pleaded that thereafter the respondent

No.3 passed final award dated 08.03.2019 under Section 3G of

the Act of 1956 and awarded a sum of Rs.64,93,482/- in lieu of

the petitioners' land.

14. The petitioners, in their writ petition, have specifically raised

following grounds:-

(a) The award dated 08.03.2019 is arbitrary, bad in law

and violative of the constitutional provisions.

(b) The objections submitted by the petitioners have been

rejected in a mechanical manner and no reasoning has been

assigned for disallowing the objections and as such there is a

violation of the provisions of Section 3C(1) of the Act of

1956.

(c) The respondents have not conducted proper survey and

did not prepare the survey map and the preparation of

survey map, only on the basis of Google Maps, is without

application of mind.

(d) The petitioners are operating a petrol pump of Indian

Oil Corporation Limited since last 16 years and this being the

only source of their livelihood, the petitioners are left with no

other business and as such the acquisition is violative of

Articles 19 and 21 of the Constitution of India.

(e) The respondents have failed to determine the

compensation in a proper manner and only a sum of

Rs.64.93 lakhs has been awarded by ignoring the petrol

pump business and the structure raised thereon. The

acquired land measuring 0.64 hectares (6400 Sq.Mtrs.)

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comprises of the land for petrol pump, duly converted land

for commercial use and further the remaining land falls in

abadi and, as such, the actual nature of the land has not

been considered.

(f) The respondents have not complied with the provisions

of Section 3G(3) of the Act of 1956 and no public notice

under the said provision was served upon the petitioners.

(g) The respondents failed to comply with the provisions of

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013.

15. The respondents No.1 and 4 have filed reply to the writ

petition and asserted that the land in question is part of the land

that is utilized for the purpose of Greenfield Delhi-Vadodara-

Mumbai Expressway being developed under the Bharatmala

Pariyojna and National Highway No.148N is to be constructed for

the benefit of public at large and work of the National Highway

No.148N, in the stretch of land from KM 79.395 to KM 149.000,

falls in the project implementation Unit-Sohna (Haryana) falling

within the District Alwar in the State of Rajasthan. The appointed

date, as per the contract agreement entered into between the

National Highway Authority of India and the Contractor, was

having a time limit of 730 days, as declared on 10.12.2019 and

the construction is to be completed upto 08.12.2021.

16. The respondents have asserted that the National Highway

Authority of India has been empowered to maintain the highways

by virtue of Section 11 of the National Highways Authority of India

Act, 1988 and the procedure as given out in Section 3, 3A to 3J of

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the Act of 1956 has been followed while undertaking acquisition of

land.

17. The respondents have further asserted that after issuing

notification under Section 3A of the Act of 1956, the objections

were invited, from the aggrieved persons, to the use of such land

and objections, so filed by the petitioners, were heard by the CALA

and after hearing the objections and making further enquiry, the

CALA disallowed such objections vide order dated 11.10.2018 and

subsequently, the Central Government, upon receipt of the report

under the Act of 1956 from the CALA, vide public notification

dated 21.12.2018, published in the official gazette, declared that

the land in the Schedule, as mentioned in sub-section (1) of

Section 3D of the Act of 1956, stands vested absolutely in the

Central Government, free from all encumbrances under sub-

section (2) of Section 3D of the Act of 1956.

18. The respondents have further asserted that the CALA

determined the amount of compensation, in respect of the land in

question, vide award dated 08.03.2019 by awarding

Rs.64,93,482/- in favour of the petitioners towards the acquired

land and further vide award No.42(C) dated 26.04.2019 awarded

Rs.1,44,03,236/- towards structure and other material belonging

to the petitioners. The respondents have pleaded that after

approval for acceptance of award, they have deposited the

awarded amount for further disbursement to the respective land

owners.

19. The respondents have further asserted that CALA handed

over possession of the acquired land on 11.11.2019, as per the

(9 of 30) [CW-15829/2019]

provisions of Section 3E of the Act of 1956. The respondents have

pleaded that as per the Section 3G(5) of the Act of 1956, if the

amount of compensation, determined by the CALA, is not

acceptable then it can be determined by the Arbitrator, appointed

by the Central Government on the application filed by either of the

parties.

20. The respondents have asserted in the reply that the

petitioners did not approach the Arbitrator under Section 3G(5) of

the Act of 1956 and the District Collector, Alwar was already

appointed as Arbitrator and as such, the petitioners have wrongly

approached this Court without first approaching the Arbitrator for

enhancement of compensation. The respondents further pleaded

that the arbitral award, so passed by the Arbitrator, is also covered

by the provisions of the Arbitration and Conciliation Act, 1996.

21. Senior Counsel for the petitioners Mr.Rajendra Prasad, has

made following arguments, during the course of hearing, before

this Court:-

21A. The respondents have not complied with Section 3C(2)

of the Act of 1956 as no order was passed by the CALA and

no such order was communicated to the petitioners.

21B. The report under Section 3D(1) of the Act of 1956 sent

to the Central Government cannot be considered as an order

and as such, the declaration of acquisition is vitiated.

21C. There has been no objective application of mind while

deciding the objections filed by the petitioners and reasoned

order has not been passed by the CALA and as such the

declaration of acquisition is vitiated.

(10 of 30) [CW-15829/2019]

21D. The provisions contained in Section 3E of the Act of

1956 conferring power to take possession has not been

followed and notice of sixty days was a pre-condition and as

such, the land could not have been vested in the

respondents. Taking possession of the land, without following

mandatory provisions is violative of Section 3E of the Act of

1956 and has resulted into the land being acquired without

following due process of law.

21E. There has been total non-application of mind while

issuing the notification under Section 3A of the Act of 1956,

as the description of the land of the petitioners was

incorrectly given and nature of the land was wrongly shown

as 'Barani' while the land of the petitioners was having petrol

pump, commercial use and other residential use, etc.

21F. The provisions contained in the Act of 1956 are pari-

materia with the provisions contained in the Railway Act,

1989 and if the authorities have not passed the order

disallowing the objections, as required under the Act of

1956, such proceedings are void ab initio. In support of his

submissions, Mr.Rajendra Prasad, Senior Counsel placed

reliance on the judgment rendered by the Apex Court in the

case of Nareshbhai Bhagubhai & Ors. Vs. UOI & Ors.

reported in (2019) 15 SCC 1.

22. In support of his case, Mr.Rajendra Prasad placed reliance

on the following judgments rendered by the Apex Court:-

(i) State of Uttar Pradesh Vs. Singhara Singh & Ors. reported in AIR 1964 SC 858.

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(ii) Dr.G.H.Grant Vs. The State of Bihar reported in AIR 1966 SC 237.

(iii) Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai & Ors. reported in AIR 2005 SC 3520.

(iv) Kranti Associates Pvt. Ltd. & Anr. Vs. Masood Ahmed Khan & Ors. reported in (2010) 9 SCC 496.

(v) Raghbir Singh Sehrawat Vs. State of Haryana & Ors. reported in AIR 2012 SC 468.

(vi) State of UP & Ors. Vs. Hari Ram & Ors. reported in (2013) 4 SCC 280.

(vii) UOI & Ors. Vs. Shiv Raj & Ors. reported in AIR 2014 SC 2242.

(viii) Laxmi Devi Vs. State of Bihar & Ors. reported in (2015) 10 SCC 241.

(ix) Uttar Pradesh Power Transmission Corporation Ltd. & Anr. Vs. CG Power & Industrial Solutions Ltd. & Anr. reported in AIR 2021 SC 2411.

(x) SJS Business Enterprises (P) Ltd. Vs. State of Bihar & Ors. reported in (2004) 7 SCC 166.

23. Mr.Sudhir Gupta, Senior Counsel appearing for the

respondents has raised following preliminary objections about

maintainability of the writ petition before this Court:-

23a. The petitioners have alternative statutory remedy

inasmuch as the petitioners if have any grievance in respect

of quantum of award then the recourse in such situation is

not writ petition but by way of preferring arbitration

proceedings, as contemplated under Section 3G(5) of the Act

of 1956.

23b. The petitioners have not challenged to the

supplementary award dated 26.04.2019 and the petition was

filed on 04.09.2019 challenging the notification, declaration

and award contending that only compensation of Rs.64.93

Lakhs was awarded in their favour.

(12 of 30) [CW-15829/2019]

23c. The petitioners have neither raised any grievance or

objection against subsequent award dated 26.04.2019 nor

they challenged the same and as such, the petitioners

having agreed and accepted the said award, the present writ

petition cannot be maintained before this Court.

23d. The petitioners are guilty of suppression and

concealment of facts as they have not disclosed the

subsequent award dated 26.04.2019 and the petitioners

have also not disclosed before this Court that they have

applied for conversion of land owned by them in the vicinity

of the subject land for commercial use as petrol pump for the

purpose of re-location and the petitioners, have such an

alternative site, having not disclosed this fact to the Court,

are guilty of suppression and concealment of important and

material facts.

24. Mr.Sudhir Gupta, Senior Counsel, while supporting the

notifications, declaration and award issued by the respondents,

has made following submissions before this Court:-

24A. The oral submission made by the Senior Counsel for

the petitioners, during the course of arguments, that no

"order" under Section 3C(2) of the Act of 1956 was passed

by the CALA, needs to be rejected by this Court as there is

no pleading in the entire writ petition filed by the petitioners

that no such order was passed.

24B. The petitioners themselves, in their writ petition, have

specifically pleaded that common order dated 11.10.2018

was passed deciding and disallowing the objections filed by

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the petitioners and others. He submitted that once the

pleading of the petitioner is very specific with regard to

passing of an order under Section 3C(2) of the Act of 1956,

the petitioners cannot be permitted to argue that no such

order was passed and only "report" was prepared by the

CALA by writing a letter dated 11.10.2018, containing report

under Section 3C of the Act of 1956, addressed to the

Central Government.

24C. The issue with regard to determination of compensation

can be agitated before the authority, as per the remedy

provided under the Act of 1956 and this Court cannot be a

proper forum to decide the quantum of compensation.

24D. The national project of such a nature is required to be

implemented in a speedy manner as it has to facilitate the

proper traffic movement for the general public.

24E. The petitioners have encroached over the subject land

as the land has already vested with the Central Government

and the petitioners were also issued notices under the

provisions contained in the Control on National Highway

(Land and Traffic) Act, 2002.

24F. The petitioners have themselves got the land converted

for setting up a petrol pump, as an alternative site, in the

same vicinity and if the only source of livelihood, as alleged

by the petitioners, is alleged to be taken away, proper

remedial measures have been taken by the respondents,

while passing the additional & subsequent award and further

the amount of compensation, if not accepted by any person,

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adequate remedy is provided for redressal of the grievance

by way of approaching the Arbitrator.

25. Mr.Sudhir Gupta, counsel for the respondents, placed

reliance on the following judgments:-

(i) UOI & Anr. Vs. Tarsem Singh & Ors. reported in (2019) 9 SCC 304.

(ii) National Highways Authority of India Vs. Sayedabad Tea Co. Ltd. & Ors. reported in (2020) 15 SCC 161.

(iii) UOI & Anr. Vs. Balvant Singh & Ors. reported in (2019) 9 SCC 687.

(iv) Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. reported in (1983) 2 SCC 433.

(v) Seth Chand Ratan Vs. Pandit Durga Prasad & Ors. reported in (2003) 5 SCC 399.

(vi) District Cricket Association & Anr. Vs. Deputy Registrar, Cooperative Societies-cum-Registrar Institution & Ors. reported in 2019 SCC OnLine Raj. 3121.

(vii) Prabha Bai & Ors. Vs. Project Officer, National Highway & Ors. reported in 2013 SCC OnLine MP 2755.

(viii) K.K.Jindal Vs. Land Acquisition Collector (N-W) reported in 2007 (98) DRJ 703.

(ix) Trishakti Electron & Industries Ltd. & Anr. Vs. TIL Ltd. & Ors. reported in (2018) 18 SCC 792.

(x) Order dt.03.03.2021 passed by this Court in Brahamdatt Meena Vs. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.8427/2020] & connected cases.

26. I have heard learned counsel for the parties and with their

assistance perused the material available on record.

27. Before proceeding further, this Court considers it appropriate

to quote the relevant provisions of the Act of 1956 as under:-

"3A. Power to acquire land, etc.--(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

(15 of 30) [CW-15829/2019]

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.

3B. Power to enter for survey, etc.--On the issue of a notification under sub-section (1) of section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf, to--

(a) make any inspection, survey, measurement, valuation or enquiry;

(b) take levels;

(c) dig or bore into sub-soil;

(d) set out boundaries and intended lines of work;

(e) mark such levels, boundaries and lines placing marks and cutting trenches; or

(f) do such other acts or things as may be laid down by rules made in this behalf by that Government.

3C. Hearing of objections.--(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.

Explanation.--For the purposes of this sub-section, "legal practitioner" has the same meaning as in clause (i) of sub- section (1) of section 2 of the Advocates Act, 1961 (25 of 1961).

(3) Any order made by the competent authority under sub- section (2) shall be final.

3D. Declaration of acquisition.--(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-5section (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

(16 of 30) [CW-15829/2019]

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.

3E. Power to take possession.--(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.

3F. XX XX XX

3G. Determination of amount payable as compensation.--(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.

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(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."

28. The objection of the petitioners relating to the notification,

issued under sub-section (1) of the Section 3A of the Act of 1956,

of giving incorrect description of nature of the land as 'Barani', this

Court, on bare reading of sub-section (2) of Section 3A of the Act

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of 1956, finds that the notification which is issued under Section

3A(1) of the Act of 1956, declaring the intention of the Central

Government to acquire the land, needs to give a brief description

of the land.

29. The requirement of giving brief description of the land

necessarily requires that the area, nature of land and owner of the

land should be mentioned. The nature of land, if has been shown

as 'Barani', in the present case, the same would not mean that

brief description of the land is not given.

30. The purpose of giving brief description of the land in the

notification under sub-section (1) of Section 3A of the Act of 1956

is to give notice to any person who is interested in the land to file

an objection to the use of the land for the purpose or purposes

mentioned in the notification for acquiring the land for building,

maintenance, management or operation of a national highway.

The brief description of the land, given in a notification, can be

identified by the person, who is interested in the land and

thereafter, if he files an objection before the competent authority,

it cannot be presumed that only because nature of the land has

not been mentioned, as is claimed by the owner of the land, the

same would not result into violation of any of his statutory right.

The necessity of giving brief description of the land is to give an

opportunity to any interested person in the land or owner of the

land, so as to question acquisition proceedings started by the

Central Government.

31. This Court, in the present facts of the case, finds that the

petitioners after learning about issuance of the notification have

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filed their objections before the CALA and as such, it cannot be

inferred that due to mentioning of the nature of their land as

'Barani' and the land being used for petrol pump and commercial

purpose, cannot result into declaring the notification as invalid or

bad in the eyes of law.

32. The submission of learned Senior Counsel for the petitioners

that while hearing the objections filed by the petitioners under

sub-section (1) of Section 3C of the Act of 1956, the CALA has not

decided the same in an objective manner and non-speaking order

has been passed, this Court finds that the CALA, after giving the

objectors an opportunity of being heard, in person or by a legal

practitioner and after making further enquiry, if required, takes

the necessary decision by allowing or disallowing the objection.

33. This Court finds that the objections of the petitioners were

decided and disallowed by the CALA and such authority does not

exercise judicial powers and order cannot be crafted like a judicial

order which is passed by a legally trained mind.

34. This Court finds that the CALA, in the present case, has

taken into account 106 objections, filed by the objectors and came

to the conclusion that the project, for which the land was required,

is needed for development of the country and for the use of

general public and as such, the purpose, for which the land was

acquired, is in the national interest and as such, while issuing the

notification, the authorities have kept in mind the purpose for

which the Act of 1956 was enacted.

35. This Court finds that the Apex Court in the case of UOI &

Ors. Vs. Kushala Shetty & Ors. reported in AIR 2011 SC 3210

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has considered the scope of Sections 3A, 3A(1), 3B, 3C, 3C(1),

3C(2), 3D, 3D(1) & 3D(3) of the Act of 1956. The Apex Court

while considering the scope of interference by the Courts, in

acquisition matters of national highways, has held that the scope

of judicial review is very limited and the courts can nullify the

acquisition of land and in rarest of rare case, the particular

project, if it is found to be ex-facie contrary to the mandate of law

or tainted due to malafides. The Apex Court has also considered

the power given to the competent authority to pass orders after

deciding the objections filed by the objectors in respect of the

notification issued for acquisition of the land. The extract of the

judgment, being relevant for the present purpose, is reproduced

as under:-

"20. The only reason assigned by the Division Bench of the High Court for upsetting the well considered order passed by the learned Single Judge negating the respondents' challenge to the acquisition was that declaration under Section 3D(1) was published even before communication of the decision taken by the Competent Authority in terms of Section 3C(2). The process of reasoning adopted by the Division Bench for recording its conclusion appears to have been influenced by an assumption that the objections filed by the land owners had not been decided till the issue of declaration under Section 3D(1). However, the fact of the matter is that the Competent Authority had, after giving opportunity of personal hearing to the objectors, passed order dated 11.10.2005 and rejected the objections. Though, that order was not crafted like a judicial order which is passed by a legally trained mind, the rejection of the representations made by the respondents cannot be faulted only on that ground. The Competent Authority did advert to the substance of objections, the details of which have been incorporated in Annexure P-3 filed before this Court. The concerned officer rejected the same by observing that the land proposed for acquisition is necessary for widening the existing National Highways into four lanes. If the consideration made by the Competent Authority is judged in the backdrop of the fact that a Special Purpose Vehicle was incorporated with the name New Mangalore Port Road Company Limited for implementation of the project known as New Mangalore Port Road Connectivity Project from

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Surathkal to Nantoor and B.C.Road to Padil along with bypass from Nantoor to Padil, it is not possible to castigate the proved reasons recorded by the Competent Authority for rejecting the objections.

21. XX XX XX XX

22. XX XX XX XX

23. XX XX XX XX

24. 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 subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify 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."

36. This Court, had an occasion to deal with the scope of judicial

review in the acquisition matters under the Act of 1956 in the case

of Ratan Lal Aheer Vs. UOI & Ors. reported in 2019 (1) RLW

645 (Raj.) and after considering the law on the issue came to the

conclusion that interference in acquisition matter can only be in

two situations i.e. ex-facie contrary to mandate of law or tainted

due to malafides. The extract of the judgment, relevant for the

present purpose, is reproduced hereunder:-

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"30. This court finds that objections which are filed under sub-section (1) of Section 3C of the Act, 1956 are required to be taken into consideration by the competent authority and the objections are either to be allowed or disallowed. The order which is required to be passed while deciding the objections cannot be a judicial order. The said order which is passed by the competent authority cannot be an order like the court passes the order by a legally trained mind. The order of the competent authority has to take into account the objections which are raised by the objector. Allowing or disallowing the objections by competent authority must reflect that the objections are sustainable or not sustainable.

31 to 38 XX XX XX

39. The reliance placed by learned counsel for the petitioner on the judgment of the Apex Court in the case of M/s.Kranti Associates Pvt. (supra) is also to the effect that the administrative decisions must record reasons. The Apex Court in para-51 of the judgment has summarized the requirement of passing a reasoned order as it serves the principles of natural justice. This court finds that the said judgment cited by the learned counsel for the petitioner will be of little help in the present facts of the case.

40. This court finds substance in the submission for the learned counsel for the respondents that scope of judicial review in acquisition matters is very limited and the area of interference can only be in two situations i.e. ex-facie contrary to mandate of law or tainted due to malafides."

37. The submission of learned Senior Counsel for the petitioners

that no order disallowing the objections of the petitioners was

passed under sub-section (2) of Section 3C of the Act of 1956 and

only a 'report' being prepared and sent to the Central

Government, as such, the entire acquisition is vitiated, this Court

has to first consider the pleadings which have been made by the

petitioners in their petition, before embarking upon to decide the

validity of the order passed by the authorities on this Court.

38. This Court finds that the petitioners themselves in

unequivocal terms have mentioned in the facts of the petition that

the CALA by common order dated 11.10.2018 decided and

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disallowed the objections of the petitioners and others. The

petitioners themselves have taken a specific plea that such order

was passed by the CALA under sub-section (2) of Section 3C of

the Act of 1956 and as such, now during the course of arguments,

such ground has been raised and the same has been noted to be

rejected by this Court.

39. This Court, after scanning the entire material available on

record and pleadings made in the writ petition, finds that the

petitioners have not raised any ground in their writ petition that

the order dated 11.10.2018 was not an order and it was only a

report prepared under Section 3D of the Act of 1956. The

petitioners, having not taken such ground to challenge the order

dated 11.10.2018, are estopped to question the said order only by

making oral submission before this Court.

40. This Court further finds that since there is no specific

averment made in the pleadings, the respondents have

accordingly not controverted the same by filing specific reply or

counter affidavit. This Court finds that if some facts are not

specifically pleaded in the writ petition and the writ petition is set

up only on certain other facts, the Court cannot permit to raise

such grounds, during the course of hearing/arguments and as

such, the oral plea taken by the petitioners is rejected by this

Court. Pleadings in the writ petition have to be specific and

without any ambiguity. The facts of the case and grounds to

challenge the action/inaction have to be clearly stated. The

material facts are required to be part of pleadings.

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41. The submission of learned Senior Counsel for the petitioners

that the impugned order dated 11.10.2018 has to be construed as

a report, as envisaged under sub-section (1) of Section 3D of the

Act of 1956, this Court on careful reading of the order dated

11.10.2018 finds that the CALA has mentioned about the notices

issued, under Section 3C of the Act of 1956, to the different

persons including the petitioners and in total 106 objections were

received by the CALA and he has given brief description and

details of the objections which were filed before him. The CALA

has recorded that the main objection of the objectors was in

respect of demarcation of the land and further some objectors had

raised grievance against acquisition on different grounds. The

CALA, after considering the objections, came to the conclusion

that the land is sought to be acquired for a project of national

importance meant for general public and as such, he disallowed

the objections. A perusal of the order shows that it has all the

ingredients of an order passed by an authority and same cannot

be termed as a report by the CALA.

42. This Court further finds that the CALA has endorsed the said

order to the office of Sub-Divisional Officer and Tehsildar of

different sub-divisions like Ramgarh, Laxmangarh & Raini with

direction that the order be pasted on their notice board. The CALA

also directed to notify and paste the order on notice board for the

purpose of objectors to know about such order being passed.

43. The submission of learned Senior Counsel for the petitioners

that possession of the land has not been taken, as per the

requirement of Section 3E of the Act of 1956, this Court finds that

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the requirement of Section 3E of the Act of 1956 is to give notice

to handover possession within sixty days after service of notice to

the owner or any other person, who may be in possession of the

land to surrender or deliver possession to the competent

authority, after the land is vested in Central Government under

sub-section (2) of Section 3D of the Act of 1956 and the amount is

determined by the competent authority under Section 3G of the

Act of 1956.

44. This Court finds that in the present case, after notification

regarding declaration of acquisition was published and issued

under Section 3D(1) of the Act of 1956, on publication of such

declaration, the land vests absolutely in the Central Government

free from all encumbrances under sub-section (2) of Section 3D of

the Act of 1956. This Court further finds that no plea can be

allowed to be raised by the petitioners that they were in rightful

possession of the land and the land in question never vested in

the Central Government.

45. This Court further finds that the Control on National Highway

(Land and Traffic) Act, 2002 specifically deals with the situation

where any person who is in unauthorized occupation of highway

land can be removed or even fine can be imposed upon him.

46. The submission of learned Senior Counsel for the petitioners

that the provisions contained in the Railway Act, 1989 and the Act

of 1956 are pari-materia, before dealing with the contention raised

by the cousnel, this Court deems it proper to quote the relevant

provision of the Railway Act, 1989, as follows:-

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"20-D. Hearing of objections, etc.- (1) Any person interested in the land may, within a period of thirty days from the date of publication of the notification under sub-section (1) of Section 20A, object to the acquisition of land for the purpose 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.

Explanation.- For the purposes of this sub-section, "legal practitioner" has the same meaning as in the clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of1961).

(3) Any order made by the competent authority under sub- section (2) shall be final."

47. This Court finds that under Section 3C of the Act of 1956

interested person can object to the use of the land for the purpose

or purposes mentioned in sub-section (1) of Section 3A of the Act

of 1956 and the Section 20D of the Railway Act, 1989 also enables

the interested person to object to the acquisition but there is a

distinction between the right to object to the use of the land for

the purpose for which the land is acquired or object to the

acquisition.

48. This Court finds that the Division Bench of the Punjab and

Haryana High Court has also recently considered the similar issue

in the case of Sharman Spinning Mills Pvt. Ltd. & Ors. Vs.

UOI & Ors. [CWP No.10537-2021 (O&M)] decided on

30.06.2021 and it would be pertinent to quote the relevant portion

of the judgment as follows:-

"7.6 Next argument as noticed in para (vi) above is with regard to the correctness of the order passed by the competent authority. He contends that the competent authority has not passed a speaking order while examining

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each and every objection independently after analysing its merits. He relies upon the judgment in Nareshbhai Bhagubhai Vs. Union of India (2019) 15 SCC 1. It may be noted here that Section 3C of the 1956 Act enables a person who is interested in the land to file objections with respect to the use of the land for the purpose or purposes mentioned in the sub-section. The competent authority is required to give an opportunity of hearing to the objector, either in person or by a legal practitioner, before taking decision either to allow or disallow the objections. Such obligation to decide cannot be equated with a judicial order, passed by a legally trained mind. The competent authority is not required to be a person with legal knowledge. Hence, it would not be appropriate to expect that the competent authority would pass an order in the manner suggested by the learned counsel representing the petitioners. In these cases, the court would form an opinion on a careful reading of the order as to whether the objections to the acquisition have been considered or not.

Still further, the Writ Court does not sit in appeal over the order passed. The court is expected to examine its validity while exercising the power of judicial review. Once on reading of the order, the court comes to conclusion that the competent authority has considered the objections while applying its mind, it would not be appropriate to interfere. On careful reading of the order, the Competent Authority, after noting the various objections, found that the notification has been issued after prior approval of alignment of the road and the piece of land shall be required to be acquired for building the bypass road which will eventually become principal road (National Highway) after the previous one is abandoned and ceases to be a National Highway. This bench has carefully read the judgment of the Supreme Court in Nareshbhai Bhagubhai(Supra). In that case the acquisition of the land was under The Railways Act, 1989. The court noticed that after granting an opportunity of hearing to the objectors on 30.7.2011, no order has been passed by the competent authority although the Railways had taken a contradictory stand with respect to the order passed on the objections. It was further found that the personal hearing can not be reduced to empty formality or a mere eyewash. Hence, the Court held that the competent authority failed to comply with the statutory requirement. However, instead of quashing the land acquisition, on the statement of the counsel representing the land owners, the Court directed that the compensation for the land acquired shall be paid at the current rate. The Hon'ble Supreme Court in Union of India Vs. Kushala Shetty & Ors. (2011)12 SCC69 have held that the competent authority under the 1956 Act is not expected to be manned by a legally trained mind who can write an order like a judgment dealing with all the objection meticulously.

7.6.1 This argument can be examined from another perspective. The language of Section 5-A of the Land

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Acquisition Act 1894, Section 15 of the 2013 Act, Section 15 of the Railways Act 1989 and Section 3C of the 1956 Act are not pari-materia. Under Section 3C, interested person can object to the use of the land for the purpose or purposes mentioned in that sub-section. Section 5-A the 1894 Act enables the interested person to object to the acquisition of land. The right to object to the acquisition has been further elaborated in Section 13 of the 2013 Act. Similarly, Section 20-D of the Act 1989 also enables the interested person to object to the acquisition. However Section 3C only enable the person interested to object to use or the land for the purpose or purposes mentioned in that sub-section. The Hon'ble Supreme Court while noticing distinction in the language of the 1894 Act and the 1956 Act in Competent Authority Vs. Banglore Jute Factory & Ors. (2005) 13 SCC 477 held that under the 1956 Act the interested persons have no right to object to acquisition of land except on the question of its user, in paragraph 8 which is extracted as under:-

"8. The absence of a plan also renders the right to file objections under Section 3-C(1), nugatory. In the absence of a plan, it is impossible to ascertain or know which part of the 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 5-A 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 3-C(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 Section 3- A(1). The Act confers no right to object to acquisition as such. This answers the argument advanced by the learned counsel for NHAI that failure to file objections disentitles the 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 Admn. v. Gurdip Singh Uban1. In our view, this judgment has no application in the facts of the present case where the 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 5-A. 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. Dehors the right to file

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objection, the validity of the notification has to be considered. Failure to file objection to the notification under Section 3-C, therefore, cannot non-suit the writ petitioners in this case."