Mahendra Pal vs Union Of India & Ors on 27 September, 2016

[Cites 12, Cited by 3]

Rajasthan High Court - Jodhpur

Mahendra Pal vs Union Of India & Ors on 27 September, 2016

This batch of writ petitions has been filed by the petitioners while challenging the notification dated 24.01.2014 issued under section 3A of the National Highways, 1956 (in brevity 'the Act of 1956' hereinafter) and notification dated 23.01.2015 issued under section 3D of the Act of 1956, whereby 4 the land mentioned in above notifications, which includes the lands of the petitioners, is sought to be acquired for the purpose of widening/construction of 2 lane paved shoulder road (Suratgarh to Sriganganagar) of the National Highway No.15 running from Km.173/000 to Km.248/650.

The principal grievance of the petitioners is with regard to the construction of bypass from Km.238+000 to Km.248+600.

Brief facts of the case are that the Ministry of Road Transport and Highways, Union of India issued a notification under section 3A of the Act of 1956 on 24.01.2014 declaring its intention to acquire the land mentioned in the notification for the purpose of widening/construction of 2 lane paved shoulder road on National Highway No.15 from Km.173/00 to Km.248/650 (Suratgarh to Sri Ganganagar) and invited objections from the persons concern. The said notification was published in local newspapers on 7th and 8th March, 2014. Pursuant to that, the objections were filed on behalf of petitioners and other persons. The Land Acquisition Officer decided the said objections vide 5 order dated 27.10.2014 and thereafter notification under section 3D of the Act of 1956 was issued on 23.01.2015. The said notification was published in daily newspaper Dainik Bhaskar on 22.04.2015.

Lands belonging to the petitioners falling under the above mentioned two notifications are situated in between Km.238+000 to Km.248+600 of Suratgarh to Sriganganagar Road where a bypass is proposed to be constructed. The petitioners are opposing acquisition of the land on the following grounds:-

(I) That the land sought to be acquired for the purpose of construction of bypass running from Km.238+000 to Km.248+600 on the Suratgarh to Sri Ganganagar Road has not been declared as National Highway under section 2 of the Act of 1956.

It is argued that without declaration of stretch of road, where bypass is proposed to be constructed, as National Highway by issuing notice under section 2 of the Act of 1956, the respondents cannot acquire the land of the petitioners. It is contended that as the proposed bypass running from Km.238+000 to Km.248+600 has not been declared as National 6 Highway under section 2 of the Act of 1956, the respondents have no authority to acquire the said land and the impugned notifications issued by it under sections 3A and 3D of the Act of 1956 are liable to be set aside.

(II) That the Government of Rajasthan has assigned the work of preparation of feasibility report for widening/construction of 2 lane paved shoulder road from Suratgarh to Sriganganagar from Km.173/000 to Km.248/650 of National Highway No.15 to one Theme Engineering Services Private Ltd. The said company has submitted its feasibility report (Annex.15) to the State Government, wherein it has not proposed to construct any bypass from Km.238+000 to Km.248+600 and, therefore, there is no requirement of acquiring the land of the petitioners for the purpose of construction of the said bypass. It is contended that a bypass constructed and maintained by GREF is already in existence, hence, no other bypass is needed. (III) That in the notifications issued by the respondents under sections 3A and 3D of the Act of 1956, the purpose for acquiring the land is 7 mentioned as widening/construction of 2 lane paved shoulder road and in the said notifications, it has notwhere been mentioned that the land is required to be acquired for the purpose of construction of bypass. It is argued that when in the impugned notifications, it has not been mentioned that the land is required for the purpose of construction of bypass, then the land belonging to the petitioners cannot be acquired for the said purpose. It is submitted that the respondents cannot use the land for any other purpose other than the purpose mentioned in the notifications.

In support of the above contentions, learned counsel for the petitioners has placed reliance on decisions of Hon'ble Supreme Court in Tulsi Cooperative Housing Society, Hyderabad & Ors. vs. State of A.P. & Ors., (2000) 1 SCC 533 and Narpat Singh & Ors. vs. Jaipur Development Authority & Anr., (2002) 4 SCC

666. (IV) That the Land Acquisition Officer has not considered and decided the objections filed by the petitioners in response to the notification issued 8 under section 3A of the Act of 1956 in right perspective and decided the same in cursory manner. The order passed by the Land Acquisition Officer is non-speaking order.

(V) That before deciding the objections filed by the petitioners, the respondents have initiated the proceedings for issuance of the notification under section 3D of the Act of 1956 and, therefore, it can be assumed that the Land Acquisition Officer has rejected the objections filed by the petitioners with a predetermined and biased mind. It is argued that though the objections of the petitioners were decided on 27.10.2014 but prior to that the respondents initiated the proceedings for issuance of the notification under section 3D of the Act of 1956 vide letter dated 30.09.2014 and this fact itself shows that the Land Acquisition Officer has not considered the objections and rejected the same in mechanical manner.

In support of the above contentions, learned counsel for the petitioner has placed reliance on decision of this Court in Kailash & Anr. vs. State of Rajasthan & Ors. [S.B.Civil Writ 9 Petition No.4111/2009] decided 04.01.2011.

The stand of respondents is to the effect that for the purpose of linking the existing National Highway through a bypass, there is no requirement of issuance of any notification under section 2 of the Act of 1956 declaring the said stretch of road as National Highway. It is submitted that a stretch of road connecting two points of same highway automatically becomes a part of National Highway and there is no need to issue a notification under section 2 of the Act of 1956 for declaring the said stretch of road as National Highway.

In support of the above contentions, learned counsel for the respondents has placed reliance on decision of Gauhati High Court rendered in Md. Zakir Hussain vs. State of Assam & Ors. (W.P. (C) 4099 of 2002) decided on 17.03.2003, reported in (2003) 3 GLR 324.

The respondents have taken a stand that in the initial feasibility report submitted by the consultant, he has opined that at several locations, the existing alignment of Suratgarh-Sri Ganganagar needs geometric improvement. It is contended that 10 after deliberation and discussions at various levelles, the consultant has finally proposed to construct a new bypass in place of existing bypass from Km.238+000 to 248+600 maintained by the GREF and in view of the recommendations of the consultancy company, the notification under section 3A of the Act of 1956 has been issued seeking acquisition of the land of the petitioners.

The respondents have contended that the construction of bypass includes into the purpose of widening/construction of 2 lane paved shoulder road and there is no need to specify the construction of bypass as a purpose for acquisition of the land.

It is contended by the respondents that the Land Acquisition Officer has taken into consideration each and every objection of the petitioners and thereafter passed the order dated 27.10.2014 with reasons and, therefore, the same is not liable to be interfered with.

It is further contended that the proposals for issuance of notification issued under section 3D of the Act of 1956 were prepared only after passing of the order dated 27.10.2014 by the Land 11 Acquisition Officer, whereby the objections filed by the petitioners have been disposed of and it is wrong to say that prior to the disposal of the objections filed by the petitioners, the proceedings for issuance of the notification under section 3D of the Act of 1956 were commenced. It is submitted that 3D proposals are to be initiated by the Land Acquisition Officer only and from the letter dated 29.10.2014, it cannot be gathered that the Land Acquisition Officer has sent any proposal for preparation of notification under section 3D of the Act of 1956 before deciding the objections of the petitioners.

Heard learned counsel for the parties and perused the material on record.

The preamble of the Act of 1956 reads as under:

"An Act to provide for the declaration of certain highways to be national highways and for matters connected therewith."

In the Act of 1956, the term 'National Highway' has not been defined, however, the National Highways Authority of India Act, 1988 (for short 'the Act of 1988' hereinafter) provides the definition of 'National Highway'. Section 2(e) of the 12 Act of 1988 is reproduced hereunder:

"2(e) "national highway" means any highway for the time being declared as a national highway under Section 2 of the National Highways Act, 1956 (48 of 1956)."

Section 2 of the Act of 1956 is in respect of declaration of Highways to be National Highways and it reads as under:

"2. Declaration of certain highways to be national highways.--(1) Each of the highways specified in the Schedule is hereby declared to be a national highway. (2) The Central Government may, by notification in the Official Gazette, declare any other highway to be a national highway and on the publication of such notification such highway shall be deemed to be specified in the Schedule.

(3) The Central Government may, by like notification, omit any highway from the Schedule and on the publication of such notification, the highway so omitted shall cease to be a national highway."

The word 'bypass' has not been defined either in the Act of 1956 or in the Act of 1988.

Now the question before the Court is whether a link of road connecting two ends of a National Highway, which can be termed as bypass, is required to be declared as National Highway by issuing notification under section 2 of the Act of 13 1956 or not.

It is in common knowledge that with the passage of time, changes are required in alignment of any road including National Highway for various reasons. Need of change in alignment of any road or National Highway may require, where it is passing through the densely populated towns, cities or villages. It may also require in straightening any road or the National Highway if the same is curved one. If a portion of road is destroyed on account of natural calamities or turns into an accident pron area on account of increasing traffic alignment of that road or National Highway may require to be changed. Suffice it to say that to meet several eventualities, an alignment of any road or National Highway may be required to be changed occasionally and such possibilities cannot be ruled out. If such alignment is necessary and for that purpose a link of road popularly known as bypass is created, then in my view, the same will automatically become a part of existing road or Highway.

The respondents are defending their action of constructing new bypass from Km.238+000 to 14 248+600 while claiming that the existing bypass does not meet standard requirement and needs geometric improvements as sharp curves exist in it which may result in accidents.

The respondents have placed reliance on a letter No.NHI-40(1)/68 dated 31st January, 1969 issued by the Ministry of the Government of India and argued that as per the said letter, it is clarified that on account of changes in alignment of existing National Highway, some link road or bypass is to be created then such link or bypass will automatically become part of the National Highway and is not required to be notified as National Highway. The notification reads as under:

"Subject: Maintenance of National Highway connection two ends of a byepass.

I am directed to refer to your letters No. 2148E/23/PWE-59/N/66 dated the 5th April, 1968 regarding maintenance of the National Highway byepasses and the abandoned portions of the Highway thus byepassed and to say that the Government of India have been advised that under section 5 of the National Highways Act, 1956, it is their responsibility to develop and maintain in proper repair all National Highways. Changes in alignment do take place occasionally and where that happens, it is responsibility of the Central Government to maintain the changes in portion of the National Highway. In the Schedule attached to the National Highway Act, the highways are described in general terms and the 15 alignments are not specified. It does not appear to be intention of the Act that any changes in the Schedule should take place merely because of changes in alignments of portions of the National Highways automatically becomes part of the National Highways can be administratively made over to the State Government for maintenance without making any change in the schedule to the Act or issuing any notification under section 5 thereof."

The Gauhati High Court has taken into consideration the above notification in its judgment rendered in Md. Zakir Hussain vs. State of Assam & Ors. (supra) and held that a link of road popularly known as bypass does connects two points of the same highway and since the National Highway still exists connecting the two places, the bypass of new inclusion is not required to be notified as National Highway under section 2 of the Act 1956. The relevant observations of the Gauhati High Court in the above mentioned judgment are reproduced hereunder:

"44. Interpretation of the statute has to be forward-looking and not retrogate. It may so happen that the abandoned linked portion of the National Highway may completely cease to be a highway/thoroughfare and it may even turn into a jungle. Should it be, in such a situation, claimed that since no notification under Section 2 of the NH Act, 1956, has been published to exclude the abandoned portion of the National Highway or to include the newly created linked portion of the National Highway, the abandoned portion will continue to remain as the National Highway. Such an 16 interpretation will be far away from realities of life inasmuch as, on such an interpretation, the National Highway may exist, according to the statute, on a particular stretch, whereas in reality, it will not. Such a conclusion will be ridiculous.

45. Therefore, it logically follows that if a portion of the National Highway is abandoned, it ceases to be National Highway and the portion of the Highway, which links two disjointed portions of the same National Highway, shall be treated as the "National Highway". The abandonment of such a portion of the National Highway is not really exclusion of the National Highway inasmuch as the National Highway will still exist. Existence of Highway is a condition precedent for enabling the Parliament to declare the Highway as a National Highway or for the Central Government to declare, by notification, the Highway as the National Highway. The word "Highway" has not been defined in the NH Act, 1956.

According to the Shorter Oxford Dictionary. On Historical Principles, Vol II, 3rd Edition, "Highway means a public road open to all passengers, a high road ; esp. a mail or principal road. The ordinary or main road by land or water". Chambers Dictionary (Revised Edition 1976) shows that "Highway" means : A public road on which all have right to go ; the main or usual or course. Thus, the Highway is nothing but a principal or a main road connecting two different places. Such connection will remain existing even when a portion of the original Highway stands abandoned.

46. Though there is provision for either inclusion of a Highway within the ambit of National Highway and for exclusion thereof, there is no provision in the NH Act, 1956, for abandonment of the original link of the National Highway. On account of by-pass or link road, the National Highway is not excluded but remains existing. Since the NH Act, 1956, is silent on this aspect, it can be filled up by executive instructions and, i.e., precisely what the Government of India has done. When the NH Act, 1956, was amended in 1997, by the National Highway Laws (Amendment) Act, 1997, one has to assume that the Parliament was aware of the Government of India's stand with regard to abandonment of the stretches of the 17 National Highways and of various notifications/circulars issued in this regard and the Parliament must be deemed to have put its seal of approval on such circulars/notifications, etc.

47. Thus, when the bypass becomes the principal road linking one part of the National Highway with another, such a bypass is nothing but the National Highway and the portion, which is abandoned, ceases to be a part of the National Highway. Notwithstanding such a situation, since the National Highway still continues to stand and the link between the two places, joined by the bypass, still survives, it cannot be said that the National Highway, on account of the bypass and/or abandonment of old portion of the National Highway, has ceased to exist. Assuming for the sake of argument that a part of the National Highway is eroded by water or is destroyed by any other natural calamities, but the portion of the National Highway, which has been so eroded, is linked by a new road, such a link road will make the National Highway survive, for, by the new link road, only alignment is changed and not the National Highway.

48. What, thus, crystallizes from the above discussions is that after the amendments in 1997, introduced into the NH Act, 1956, the omission of the words "except such part thereof as are situated within any Municipal area" will mean that if the National Highway passes through the Municipal area, such a Highway, notwithstanding the fact that it falls within the municipal area, will, now, be treated as National Highway, but if it has not been in use and bypass has been created, in the meanwhile, the bypass will be treated as the National Highway. In other words, such a bypass does nothing but connects two points of the same highway. Since the National Highway still exists connecting the two places, the abandonment is really not exclusion nor is the bypass a new inclusion and, hence, a new notification, as envisaged in Section 2 of NH Act, 1956, is not really required."

I am perfectly in agreement of the observations made by the Gauhati High Court in the decision rendered in Md. Zakir Hussain vs. State 18 of Assam & Ors. (supra). Hence, argument of the learned counsel for the petitioners to the effect that the proposed bypass from Km.238+000 to Km.248+600 is required to be notified as National Highway is bereft of any merit and the same is liable to be rejected.

The another argument of the learned counsel for the petitioners is to the effect that in the notification under section 3A of the Act of 1956, the purpose for acquisition of the land of the petitioners and others is mentioned as widening/construction of 2 lane paved shoulder road and in the notification, construction of bypass has not been mentioned, therefore, acquisition of the land of the petitioners vide impugned notifications is illegal.

There is no quarrel on the point that land acquired for a specific purpose can only be used for that purpose and not for any other purpose as held by Hon'ble Supreme Court in Tulsi Cooperative Housing Society, Hyderabad & Ors. vs. State of A.P. & Ors. and Narpat Singh & Ors. vs. Jaipur Development Authority & Anr. (supra).

However, in my opinion, widening/ 19 construction of 2 lane paved shoulder road of a National Highway includes the construction of bypass also. As observed earlier, with the change in the alignment, if any linking road or bypass is created, the same will automatically become National Highway and in such circumstances, it cannot be said that the respondents are acquiring the land for the purpose, which has not been mentioned in the notification issued under section 3A of the Act of 1956.

The contention of the respondents to the effect that the consultant company has not proposed for construction of bypass from Km.238+000 to 248+600 is also not tenable because in its initial proposal, the company has specifically observed in clause 2.5 that "present road alignment is linear throughout except at few locations, where alignment needs geometric improvements." After observing it, the consultant company in its report has mentioned about the existing bypass, starts from Kms.238+000 to Kms.248+600. So it can be assumed that consultancy company has opined that the existing bypass requires geometric improvements 20 Moreover, the said report was submitted at the initial stage and later on after due deliberation, the consultant company has proposed for the construction of new bypass in place of existing bypass. There is no reason to disbelieve the stand of the respondents that the existing bypass has sharp turns, which resulted into accidents in high speed and therefore, needs geometric improvement and in that process only the respondents are constructing a new bypass in place of existing bypass.

I have also gone through the order passed by the Land Acquisition Officer rejecting the objections filed by the petitioners. It is noticed that in the writ petitions, no specific prayer has been made by the petitioners for quashing the order dated 27.10.2014 passed by the Land Acquisition Officer, whereby the objections filed by them have been rejected, however, since the counsel for the petitioners has advanced the arguments in respect of the order dated 27.10.2014, I have gone through the said order, wherein the Land Acquisition Officer dealt with the objections filed by the petitioners in detail and gave reasons for rejecting the same.

The objections raised by the petitioners are general in nature, whereas the stand of the department was supported with the technical reports and, therefore, it cannot be said that the Land Acquisition Officer has rejected the objections filed by the petitioners without applying its mind.

So far as the judgment of this Court rendered in Kailash & Anr. vs. State of Rajasthan & Ors. (supra) cited by learned counsel for the petitioner is concerned, the same is quite distinguishable on the facts of this case and, therefore, the same has no application in the present case.

Another contention of the learned counsel for the petitioners to the effect that the proposals for issuance of notification under section 3D of the Act of 1956 were prepared prior to the decision on their objections is also not tenable because the letter dated 29.10.2014 was not written by the Land Acquisition Officer but the same was written by the Executive Engineer of PWD. From the documents Annexure-R-6(I), R-6(II), R-6(III) and R-6(IV), it is clear that the Land Acquisition Officer initiated 22 preparation of proposal of 3D notification only after deciding the objections filed by the petitioners.

In view of the above discussions, I do not find any merit in these writ petitions and the same are hereby dismissed.

Since the writ petitions are dismissed, the ad interim stay orders dated 06.05.2015 and 27.05.2015 passed in SBCWP Nos.4675/2015 and No.5774/2015 respectively are vacated. The applications (S.B.Civil Misc. Application Nos.53/2015 and APPLW No.2146/2016 filed in SBCWP Nos.4675/2015 and No.5774/2015 on behalf of the respondents under Article 226(3) of the Constitution of India for vacation of ad interim stay order are disposed of.

The stay petitions also stand dismissed.

(VIJAY BISHNOI), J.

m.asif/PS

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Rajasthan High Court - Jodhpur