Mohammad Zaki vs Union Of India ...
2023 Latest Caselaw 2553 Raj

[2023/RJJD/008085]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4095/2020

Mohammad Zaki S/o Late Shri Mohammad Shafi, Aged About 46 Years, By Caste Muslim, R/o A-269 Shastri Nagar, Jodhpur At Present Yardan Estate, Prithvi Raj Nagar, Pali Road, Jodhpur.

----Petitioner Versus

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

2. The Additional District Collector-Iii Cum Land Acquisition Officer, Jodhpur.

                                                                 ----Respondents


For Petitioner(s)           :    Mr. Dron Kaushik
For Respondent(s)           :    Mr. Bhanu Pratap Bohra
                                 Mr. Ram Dayal Bhadu



               HON'BLE DR. JUSTICE NUPUR BHATI

                                     Order

29/03/2023

1. The petitioner has preferred the present writ petition for the

following prayers :-

i) The impugned notifications dated 05.05.2014 bearing no.S.O. 1213(E) (Annex.5) may kindly be quashed and set aside.

ii) That in the alternative it is directed to the respondent no.2 either restore back possession of petitioner's land to the petitioner or compensation in accordance with the 1 st to 4th Schedules of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

iii) The respondents may kindly be directed to not to interfere in the possession of the petitioner since no

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notification under Section 3A (1) has been issued against the petitioner."

2. The petitioner has set up a case that vide registered sale-

deed dated 04.02.1998 a land was purchased bearing Khasra

No.361/1 (later on re-numbered as 361/08 and presently it is

shown as 361/08 in Jamabandi) situated at village Kakani, Tehsil

Luni, District Jodhpur. The petitioner's name had also been

entered in the revenue case of Godavari as a Khatedar, which is

evident from the Jamabandi placed on record.

3. The petitioner applied for conversion of his agricultural land

to non-agricultural usage and conversion of the agricultural land

was accordingly done vide conversion order dated 30.12.1998 for

commercial purpose (petrol pump).

4. In exercise of powers conferred under Section 3A(1) of the

National Highway Act, 1956, a notification under Section 3A was

published in the Official Gazette on 12.7.2013 by the Central

Government for the purpose of acquiring certain lands around

National Highway No.65 in the stretch of land from Km 308/0 to

Km. 378/115 (Jodhpur-Pali Section) in order to widen/four-laning,

etc., for maintenance, management and operation of National

Highway No.65. However, the said Gazette Notification dated

12.7.2013 (Annex.4) did not specifically include the petitioner's

land.

5. Thereafter notification dated 05.05.2014 (Annex.5) was

issued by the Central Government under Section 3 D(1) of the Act

of 1956 wherein it was stated that vide the notification dated

12.07.2013 published in Official Gazette under Section 3, Sub-

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Section (ii) and Sub-Section (1) of Section 3A of the Act, the

Central Government had declared its intention to acquire the land

specified in the Schedule annexed to the said notification for

building (widening/four-laning, etc.) maintenance, management

and operation of National Highway No.65 and further mentioned

that in pursuance of notification dated 12.07.2014 objections were

received and the same were considered and disallowed by the

competent authority. In the aforementioned notification, the

petitioner's land has been included at Sr. No.159 and the nature of

the land was mentioned as "petrol pump".

6. The petitioner is aggrieved of the fact that he has been

deprived of mandatory opportunity of filing objection against the

proposed acquisition owing to this illegal omission in the

notification issued under Section 3A of the Act of 1956.

7. The petitioner was shocked that on the same day i.e.

05.05.2014 another notification was published in Gazette wherein

the Central Government gave brief description of the land for

building (widening/four-laning, etc.) maintenance, management

and operation of National Highway No.65 on the stretch of land

from Km.308/00 to Km. 378/115 (Jodhpur-Pali section) in Jodhpur

district from Km. 308/000 to Km. 336/400 in the State of

Rajasthan.

8. Vide this notification also objections were invited from the

interested persons in the land mentioned in the Schedule of the

notification within a period of 21 days of publication of the

notification.

9. However, the petitioner's land was again not included in the

notification dated 05.05.2014 (Annex.6). The petitioner submitted

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a detailed representation before the respondent no.2 i.e. the

Additional District Collector-III cum Land Acquisition Officer,

Jodhpur ventilating his grievance followed by a reminder dated

22.11.2017. Thereafter the petitioner had obtained a report from

the concerned Patwari dated 27.12.2017 (Annex.9). In the said

report, the concerned Patwari said that the acquired area in the

land in dispute is 300 x 25 = 7500 Sq. Feet.

10. Heard learned counsel for the parties and perused the

material available on record.

11. Counsel for the petitioner submits that the controversy

involved in the writ petition is squarely covered by the judgment

dated 10.04.2018 of this Court in S.B. Civil Writ Petition

No.8790/2015 (Smt. Renu Kasat Vs. Union of India & Ors.).

12. Learned counsel appearing for the respondents is unable to

refute the same.

13. The petitioner claims that his land was converted into

commercial nature and mutation entries in the revenue record

were also done accordingly. However, the petitioner has been

deprived of the mandatory opportunity of filing objection against

the acquisition as his land was not mentioned in both the

notifications issued under Section 3A of the Act of 1956.

14. Counsel for the petitioner also submits that, though, the

respondents have constructed national highway on petitioner's

land but the respondents have not passed any award till date and,

therefore, he is entitled to receive fair compensation in lieu of the

acquisition of his land, which was of commercial nature and also

that the value of the land has to be assessed as per the Right to

Fair Compensation and Transparency in Land Acquisition,

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Rehabilitation and Resettlement Act, 2013. Learned counsel,

therefore, prays that he may be permitted to make a redressal of

his grievance before the respondent no.2 i.e. the Additional

District Collector-III cum Land Acquisition Officer, Jodhpur.

15. To these submissions counsel for the respondents does not

object and prays that the matter be referred to respondent no.2

i.e. the Additional District Collector-III cum Land Acquisition

Officer, Jodhpur, who may be directed to consider all the aspects

of the matter.

16. In view of these submissions, it is concluded that the

acquisition in-question in regard to petitioner's land is concerned,

the same was carried out without including the petitioner's land in

both the notifications dated 12.07.2013 (Annex.4) and

05.05.2014 (Annex.6) and, therefore, the petitioner was deprived

of opportunity of filing objection and, thus, such acquisition

proceedings has resulted into illegal proceedings. However, as the

National Highway has already been constructed on such lands, the

position thereof cannot be altered in public interest.

17. In view of these circumstances the petitioner is given liberty

to approach respondent no.2 i.e. the Additional District Collector-

III cum Land Acquisition Officer, Jodhpur by filing a detailed

representation for award of compensation on all permissible

aspects including that of the nature of land as on the date of

acquisition and the current market value thereof.

18. The respondent no.2 i.e. the Additional District Collector-III

cum Land Acquisition Officer, Jodhpur shall thereupon decide the

matter in light of the observations made hereinabove. Requisite

exercise in this direction shall be completed within a period of

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three months from the date of submission of representation

alongwith certified copy of this order by the petitioner.

19. The writ petition is disposed of in these terms. The stay

petition is dismissed.

(DR. NUPUR BHATI),J 60-Sanjay/-

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