Rajasthan High Court - Jodhpur

Achala Ram vs State Of Rajasthan on 12 April, 2023

Bench: Pushpendra Singh Bhati

[2023/RJJD/009492] (1 of 10) [CW-5117/2020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5117/2020

1. Achala Ram S/o Sh. Gobar Ram, Aged About 67 Years, Resident Of Village Genwa (Chokha), Opposite Sbi Bank, By-Pass Road, Jodhpur.

2. Shyam Lal S/o Sh. Gobar Ram, Aged About 57 Years, Resident Of Village Genwa (Chokha), Opposite Sbi Bank, By-Pass Road, Jodhpur.

3. Ramdayal S/o Sh. Shiv Lal, Aged About 62 Years, Resident Of Village Genwa (Chokha), Opposite Sbi Bank, By-Pass Road, Jodhpur.

4. Shanker Lal S/o Sh. Shiv Lal, Aged About 57 Years, Resident Of Village Genwa (Chokha), Opposite Sbi Bank, By-Pass Road, Jodhpur.

5. Chhagan Lal S/o Late Sh. Ramchander, Aged About 40 Years, Resident Of Village Genwa (Chokha), Opposite Sbi Bank, By-Pass Road, Jodhpur.

6. Jetha Ram S/o Late Sh. Ramchander, Aged About 35 Years, Resident Of Village Genwa (Chokha), Opposite Sbi Bank, By-Pass Road, Jodhpur.

7. Smt. Dakhu Devi W/o Late Sh. Ramchander, Aged About 75 Years, Resident Of Village Genwa (Chokha), Opposite Sbi Bank, By-Pass Road, Jodhpur.

----Petitioners Versus

1. State Of Rajasthan, Through District Collector, Jodhpur.

2. National Highway Authority Of India, Through Its Project Director, Project Implementation Unit, Rajiv Yaan, 188, Ummaid Heritage, Ratanada Jodhpur.

3. Authorized Officer, Land Acquisition And Sub-Divisional Officer, Jodhpur.

----Respondents Connected With S.B. Civil Writ Petition No. 3995/2020 Jai Ram @ Jaya Ram S/o Kripa Ram, Aged About 76 Years, R/o Village Genva (Chokha), Harala Bhakhari, Bypass Road, Jodhpur.

----Petitioner Versus

1. State Of Rajasthan, Through District Collector, Jodhpur.

2. National Highway Authority Of India Through Project Director, Project Implementation Unit, Rajeevayan, 188, Ummed Haritage Ratanada, Jodhpur.

3. Authorized Officer, Land Acquisition And Sub Divisional Officer, Jodhpur.

                                                    ----Respondents


For Petitioner(s)          :    Mr. C.S. Kotwani in WP No.5117/2020




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For Respondent(s)            :    Mr. Ankur Mathur

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 06/04/2023 Pronounced on 12/04/2023

1. After the judgment was reserved on 06.04.2023, Advocate

Mr. C.S. Kotwani, learned counsel appeared in the Chamber and

submitted that though he represented the petitioners in both the

instant petitions i.e. WP Nos. 5117/2020 & 3995/2020, but after

the judgment was reserved, the petitioner in WP No.3995/2020

has taken NOC from him, and thus, virtually, he has no further

instructions in the said writ petition (No.3995/2020).

1.1 This Court realizes that in the likelihood of the judgment

coming against the petitioner in WP No. 3995/2020, he tried to

prohibit/pressurize the Counsel by taking away the NOC after the

judgment was reserved. Such a practice, in the firm opinion of this

Court, requires to be deprecated.

2. Since the both instant petitions involve a common

controversy, though with marginal variation in the contextual

facts, therefore, for the purposes of the present analogous

adjudication, the factual matrix and the prayer clauses are being

taken from the above-numbered SBCWP No.5117/2020, while

treating the same as a lead case.

2.1. The prayer clauses, as mentioned in the above-numbered

SBCWP No.5117/2020, read as under:

"It is, therefore, most respectfully and humble prayed that the instant writ petition may kindly be ordered

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to be allowed by issuing an appropriate writ, order or direction:

i. The impugned notice dated 24.07.2019 (Annex.9) and notice dated 16.03.2020 (Annex.11) issued with regard to land of humble petitioners situated in Khasra Nos.859/1, 861, 862, 861/1 and 864 may kindly be declared illegal and may kindly be ordered to be quashed and set aside; and ii. The respondents may kindly be restrained from acquiring the land of humble petitioners throughout of these notices for the purpose of construction of ring road; and iii. Any other order of direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the humble petitioners."

3. Brief facts of the case, as placed before this Court by learned

counsel for the petitioners, are that the petitioners are

agriculturists having their agricultural lands in Khasra No. 859/1,

861, 862, 861/1 and 864 measuring in all 8 bighas 10 biswas,

while rest of the land belongs to other co-tenants.

3.1. The respondent no.2, for the purposes of development

of Jodhpur by-pass road, initiated the acquisition proceedings

in Village Chokha, District Jodhpur. In this regard, the respondents

published a notice in the daily newspaper "Rajasthan Patrika" on

24.07.2019, impugned herein, under Section 3-A (1) of the

National Highways Act, 1956 (hereinafter referred as 'Act of

1956'), inviting the objections, and directed the concerned

persons to appear before the Authorized Officer (Land Acquisition)

& Sub Divisional Officer, District Jodhpur on 19.08.2019. The

petitioners accordingly, appeared before the said authority and

submitted their objections under Section 3-C of the Act of 1956.

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3.2. Thereafter, the respondents issued another notice dated

16.03.2020, impugned herein, in the daily newspaper "Rajasthan

Patrika" (Jodhpur Edition dated 18.05.2020) under Section 3-B of

the Act of 1956, inviting the objections and submissions regarding

the compensation in lieu of the acquisition of the lands in

question. The petitioners furnished their objections and

submissions before the SDO on 08.06.2020. The petitioners also

filed an application before the District Collector, Jodhpur regarding

the objections in respect of acquisition of the land in questions,

but the grievance of the petitioners was not redressed. Hence, the

instant petitions have been preferred.

4. Learned counsel for the petitioners submitted that the land

acquisition proceedings initiated by the respondents in the years

1993 to 1999 for construction of the ring road, when seen in

conjunction with the land acquisition proceedings in question,

clearly reveal that the respondent no.2-NHAI is diverting the road,

without there being any requirement and necessity, the same

results into heavy lossess to the petitioners. He further submitted

that the petitioners are the recorded khatedars of the lands in

question, and they had already constructed tube-well and houses

over the lands in questions. Hence, as per learned counsel, the

entire proceedings in question, as undertaken by the respondents,

are clearly violative of Sections 3-A and 3-E of the Act of 1956.

4.1. Learned counsel also submitted that during the pendency of

the present litigation, upon the objections being preferred by the

petitioners, the Authorized Officer (Land Acquisition) & Sub

Divisional Officer, District Jodhpur passed an award on

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06.08.2020, determining the compensation to be paid in lieu of

the acquisition of the lands in question; the respondents had also

published a notice of the said award on 30.09.2020 under Section

3(e) and 3(h) of the Act of 1956. As per learned counsel, the said

award had been passed behind the back of the petitioners and

without any cogent and justifiable reason for the same, as

revealed from the LAP of the road, which was prepared in the year

1994-95; hence, as per learned counsel, the said award also

cannot be sustained in the eye of law.

5. On the other hand, learned counsel for the respondents

opposed the aforesaid submissions made on behalf of the

petitioners and submitted that the disputed area is falling within

the domain of the State, and that, the lands in question were

being vested in the respondent-NHAI, for the purposes of

construction and development of 4-Laning of Dangiyawas (Km

96.595 of NH-112) to Jajiwal (Km 283.500 of NH-65 Nagaur Road)

and Section Package-I (Design Length 74.619 km) of Jodhpur Ring

Road in the State of Rajasthan on Hybrid Annuity Mode under

NHDP Phase-VII.

5.1. Learned counsel further submitted that so far as the above

numbered writ petition no. 3995/2020 is concerned, the same is

not maintainable because the petitioner in the said petition has

not challenged the acquisition of the land notified by the

respondents in the Official Gazette through newspapers, as per

which, the said piece of land has been shown to be vested in the

State Departments. Hence, as per learned counsel, the present

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assailment being laid by the encroachers cannot be said to be

justified in law.

5.2. Learned counsel also submitted in Writ Petition No.

3995/2020, the petitioner has already challenged the proceedings

in regard to the land in question before this Hon'ble Court by

preferring S.B.C.W.P. No.601/2019 (Jai [email protected] Jaya Ram & Ors.

Vs. State of Rajasthan & Ors.), wherein the Hon'ble Court refused

to grant interim order pertaining to construction of ring road.

5.3. Learned counsel further submitted that the requirement of

the lands has been duly assessed and analysed by technical

experts keeping in view various factors which is necessary in the

interest of public at large. Therefore, the challenge, as laid herein,

cannot be said to be justified in law.

6. Heard learned counsel for the parties as well as perused the

record of the case.

7. This Court observes that in writ petition no. 5117/2020, the

petitioners are agriculturists and having lands measuring 8 bighas

10 biswas and the same has been acquired by the respondents for

construction of Ring Road, and that, the compensation in lieu

thereof, has also been determined to be paid vide the

aforementioned award dated 06.08.2020 passed by the Authorized

Officer (Land Acquisition) & Sub Divisional Officer, District Jodhpur,

followed by due publication thereof. Therefore, the proceedings in

question, as undertaken by the respondents, are perfectly justified

in the eye of law.

8. This Court further observes in writ petition no.3995/2020,

the lands in question were recorded in favour of the Forest

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Department and the Revenue Department, and that, the petitioner

therein is an encroacher on the said land, which was subsequently,

vested in the respondent-NHAI for the development works in

question. The documents relied by the respondents clearly

substantiate the impugned action of the respondents.

9. This Court further observes that the present cases are

pertaining to acquisition of the lands for the public project, in the

interest of public at large.

10. This Court, in the case of Radha Shyam Joshi Vs. Union

of India & Ors. (S.B. Civil Writ Petition No. 1381/2023 &

other connected matters decided on 14.03.2023) pertaining to

a similar public project, observed as under:

18. In the case of Gunasekaran Vs. The Divisional Engineer National Highways & Ors. (Civil Appeal No.4946/2021, decided on 24.08.2021), the Hon'ble Apex Court has made the following observations:

"7. . . . The legislature however, has not stood still. In the year 2002, new legislation was churned out viz., The Control of National Highways (Land and Traffic) Act, 2002 (hereinafter referred to as 'Act of 2002' for brevity). The following is the statement of objects and reasons:

"1. At present, the National Highways are governed by the National Highways Act, 1956 and the National Highways Authority of India Act, 1988. These enactments contain provisions for declaration of the National Highways and for the constitution of the National Highways Authority of India for the development, maintenance and management of the National Highways and the matters connected therewith. However, these enactments do not give powers to the Central Government to prevent or remove encroachments on land under the National Highways/or to restrict access to them from the adjacent land, or to regulate traffic movement of any category of vehicles or animals on the National Highways. The provisions in the existing law and in the Code of

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Civil Procedure, 1908 have not proved effective in view of dilatory tactics adopted by the private parties to defeat the purposes of these Acts. In order to deal effectively with these problems, it is imperative to vest the Central Government with necessary powers through the Highway Administration.

2. National Highways are rapidly getting congested and choked by undesirable roadside developments and encroachments.

In fact, encroachments make further widening of the existing roads in response to growing traffic, very difficult and costly, and often, impossible. The result is that the main traffic on the National Highways is subjected to a lot of hardship and there is widespread criticism about the deteriorating level of service.

3. The absence of legislation empowering the competent authority to remove encroachments on the National Highways has resulted in shops, hotels, tea stalls, repair shops, petrol pumps, weigh bridge, residences and commercial establishments extending their activities right on the National Highways land.

4. Highway authorities do not have either power to regulate traffic coming on the National Highways or to control the number of access roads joining the highways. All this leads to failure of roads and bridges caused by overloading, increased congestion, waste of fuel, reduced speed, high incidents of accidents, increased vehicle operating costs and unhealthy and unhygienic conditions. It has been also observed that highways are frequently dug up by utility organizations which put the traffic on highways in danger. The highway authorities have no adequate legal authority to prevent such nuisances."

(12) A perusal of Section 26, bearing in mind the object with which the said law was enacted, leaves us in no manner of doubt, as regards power and procedure for the removal of any encroachment at a National Highway. The appropriate law is the Act of 2002. ........"

18.1 The object and intent of legislature is very clear regarding encroachment on the lands meant for the purpose of development of National Highways (public projects), which has

[2023/RJJD/009492] (9 of 10) [CW-5117/2020]

also been made clear by the Hon'ble Apex Court in the case of Gunasekaran (Supra). The development of National Highways is a project for welfare and convenience of the public at large, and thus, any delay in completion of such public project would not only adversely affect the free flow of traffic, but the same would also run contrary to the legislative intent behind enactment of the Act of 2002.

......

20. This Court further finds that the project involved herein is a public project and the impugned action has been initiated by the respondents so as to secure adequate sight distance and preserve aesthetic value of the National Highway, besides ensuring free flow of the traffic. The respondents are also justified in ensuring that within a prescribed distance from the National Highway, no construction activity is allowed to be undertaken.

21. In light of the aforesaid observations and looking in the given factual matrix, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petitions.

11. This Court observes, in light of the judgment rendered in

Radha Shyam Joshi (Supra), that the Act of 1956 was enacted

to regulate the National Highways in the entire country, and to

deal with any land dispute in relation to the acquisition of lands for

construction of the National Highways. The whole purpose, being

such enactment, was the best public infrastructure and provision

of best National Highways in the country. Therefore, in the firm

opinion of this Court, the project in question, which is for the

benefit of public at large, ought not be stopped.

12. Thus, in light of the aforesaid observations and looking into

the factual matrix of the present cases, as also in light of the

judgment rendered in Radha Shyam Joshi (Supra), this Court