Calcutta High Court (Appellete Side)
Of India vs Additional District Magistrate on 28 April, 2008
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No.15635 (W) of 2004
National Highways Authority
of India
...Petitioner
Versus
Additional District Magistrate
(Land Acquisition) & Ors.
...Respondents
Mr. Debangshu Basak
Mr. Aniruddha Roy
Mr. D.N.Sharma
Mr. R.K. Rai
...for the petitioner
Mr. Tapas Kumar Majumder
...for the respondent no.1
Mr. Kalyan Bandopadhyay
Mr. Probal Mukherjee
Mr. Subir Pal
...for the respondent no.4
Before the Hon'ble Justice Dipankar Datta
Heard on : 27.7.07, 10.8.07, 31.8.07, 14.9.07 & 30.11.07
Judgment on : 28.4.08
The fourth respondent constructed a shopping complex on plots bearing Nos.
4603, 4604, 1372 and 1373. According to the writ petitioner, the National
Highways Authority of India (hereafter NHAI for short), plots bearing nos. 1372-
73 are part of National Highway No.2 (hereafter NH 2 for short) and the fourth
respondent encroached portions of it for constructing the shopping complex. In
the process of widening NH 2, the NHAI threatened demolition of the said
shopping complex to the extent it encroached it.
Feeling aggrieved thereby, the fourth respondent moved a writ petition before this
Court, which was registered as AST No.1879 of 2001. The writ petition was
disposed of on 18.12.2001 with the following order:
"Learned Counsel appearing for National Highway Authorities upon
instruction submits that his instruction is that the four plots as mention in the
writ application on which such complex has come up two of them belonged to
National Highway Authority. The said fact is disputed by the learned
counsel appearing for the writ petitioner. Therefore, there are disputed
questions of fact which can be decided by the authority on the basis of
making a spot enquiry. In that view of the matter, this Court disposes of this
writ application by the following directions :
1. The Additional District Magistrate, Land Acquisition, Burdwan,
respondent No.7, for whom Mr. Mishra is appearing, will make a spot
enquiry in respect of the land which is occupied by the structure erected
by the petitioner.
2. Such enquiry will be held in the presence of the petitioner or his
authorised representative and also in the presence of a competent officer
of National Highway Authority of India.
3. Notice of such enquiry must be given to both the parties by the respondent
no.7 and in the said enquiry parties will be at liberty to produce records
and documents and may raise their respective contentions.
4. The respondent no.7 after giving such hearing and considering the
materials on record will pass an order finding out whether there is any
encroachment of land by the petitioner and if any such encroachment is
found, the authorities will be at liberty to pass orders for demolition of the
same.
5. This Court directs the Additional District Magistrate, Land Acquisition,
Burdwan to submit a report after making the spot enquiry as early as
possible but not later than 15th January, 2002.
6. Till such report, as directed above, is submitted, parties are directed to
maintain status quo as regards possession, as of date."
The first respondent acting in compliance with the aforesaid order conducted
spot enquiry upon notice to the parties and by an order dated 19.3.02 held that
the fourth respondent had encroached plot nos. 1372-73. NHAI was granted the
liberty to approach the appropriate authority for obtaining an order of demolition.
The order dated 19.3.02 was subjected to challenge by the fourth respondent in
W.P. 5792 (W) of 2002. On contested hearing, the writ petition was dismissed on
20.8.02 by a learned Judge. An intra court appeal filed by the fourth respondent
against the said order bearing MAT No.2819 of 2002 (renumbered as FMA
No.3075 of 2002) has since been dismissed by the Court of Appeal by order dated
3.1.07.
The fourth respondent having failed to obtain any orders from the Court
restraining NHAI to demolish the shopping complex in so far it encroached plot
nos. 1372-73, a process was initiated by it for demolition and the shopping
complex on the encroached portion was demolished on 7.9.02.
Alleging that NHAI in the process of demolishing the shopping complex on the
encroached portion had caused demolition of even the authorised portion of the
shopping complex standing on plot nos. 4603-04, the fourth respondent lodged a
complaint before the District Magistrate and Collector, Burdwan. Various
correspondences were exchanged by and between the District Magistrate, the
fourth respondent, UCO Bank (with whom the property is charged) and NHAI.
Ultimately, the District Magistrate referred the issue to the first respondent for a
decision. The first respondent conducted further spot enquiry and called upon
the disputing parties to present their case before him. NHAI abstained on the
ground that the intra court appeal referred to above was pending on that date.
Upon hearing the fourth respondent and upon spot enquiry, the first respondent
came to a conclusion that NHAI had demolished parts of the shopping complex
which were authorised, having been constructed on plot nos. 4603-04. He
proceeded to pass an order which is dated 16.7.04/2.8.04 holding, inter alia, as
follows
"*******
The action of the NHAI authorities in causing excess demolition and
damages to the existing structure is high handed and they have failed in
their duty to act strictly in accordance with the order passed by ADM(LA)(LA),
Burdwan.
The structure which was demolished in excess of authority was
commercial in nature. The question of the livelihood as guaranted under
article 21 of the constitution of India is consequently infringed by
demolishing a commercial structure, in excess of authority, which provided
source of sustenance of the claimant.
Under such circumstances, it is conclusively found that NHAI
authorities have acted illegally and failed in their duty to take reasonable
care and caused indiscriminate demolition of the valuable structure, beyond
the area earmarked in the order of Additional District Magistrate (LA),
Burdwan and thus the claimant is liable to be compensated in the money
value for loss suffered due to arbitrary and negligent state of action.
*******
However, as to the claim for damages and compensation on the heads of actual and direct loss suffered by the claimant Sri Atanu Pramanick for depreciation of his property due to excess demolition caused by the NHAI authorities, I am of the opinion that he ought to be compensated of the amount as vetted by the Executive Engineer, Division-I over the cost of demolition along with 30 % solatium and 9% interest from the date of demolition upto the date of payment.
A) Cost of structure
(Vetted by Executive Engineer,
P.W.D Div.I, Burdwan). Rs.15,20,879.00
30 % Solatium over cost of structure Rs. 4,56,263.00
(Interest from the date of demolition
i.e. 7.9.2002 to 31.8.2004) Rs. 2,71,324.00
--------------------
Grand Total Rs.22,48,466.00
Accordingly it is ordered that Project Director, NHAI, Durgapur shall place a fund at District Magistrate's P.L.Account (Fund-72) amounting to Rs. 22,48,466.00 (Rupees twenty two lakhs forty eight thousand four hundred and sixty six) only for payment of compensation etc. as detailed above in favour of Sri Atanu Pramanik.
*********"
This order has been subjected to challenge in this petition by NHAI on the sole ground that the first respondent had no jurisdiction to decide the issue and award compensation to the fourth respondent.
After hearing of the petition had commenced, the fourth respondent sought for leave of Court to file a supplementary affidavit to rely on certain additional documents. The prayer was granted and parties were given liberty to exchange their affidavits in relation thereto. The writ petition was thereafter heard finally. Mr. Basak, learned Counsel appearing for NHAI submitted that the first respondent had no jurisdiction to invoke the National Highways Act, 1956 (hereafter the NH Act for short) while ordering compensation to be paid in favour of the fourth respondent. According to him, though the first respondent is the competent authority under the NH Act but he has been conferred power and jurisdiction to award compensation in terms of provision of Section 3G thereof only in respect of a case where a particular land has been acquired by NHAI. Since plot nos.4603-04 had not been acquired, the first respondent had usurped power which he did not posses.
Referring to the contents of the supplementary affidavit, Mr. Basak submitted that the land which was the subject matter of dispute before the Court had ultimately been bought from the private party without recourse to provisions of the NH Act and that in such proceedings, expertise of the first respondent in computing the compensation payable to the private parties was utilised. Further, the first respondent was never requested by NHAI to exercise powers of competent authority under the provisions of the NH Act. He concluded by submitting that the case of the 4th respondent and the other private party did not stand on similar footing, - while the land of the said private party was required by NHAI, there was no such necessity in respect of the lands on which the shopping complex had been constructed, i.e. on plot nos. 4603-04 and, therefore, any allegation of discrimination made by the fourth respondent was without basis. He, accordingly, prayed for quashing of the impugned order. Mr. Majumder, learned Counsel representing the first respondent placed reliance on the counter affidavit filed by him and contended on the basis thereof that the writ petition being thoroughly misconceived is liable to be dismissed. Mr. Bandopadhyay, learned Senior Counsel for the fourth respondent supported the order of the first respondent.
Firstly, he submitted that the first respondent having returned a finding that while demolition of structure on plot nos. 1372-73 was intended and worked out but had actually extended to plot nos. 4603 and affected portion of the building on plot no.4604, in terms of Section 3G(7) of the NH Act the competent authority did have the competence to award compensation for damages suffered by a person interested in the land at the time possession thereof is taken by NHAI by reason of acquisition. He contended that the word 'acquisition' has not been defined in the NH Act but having regard to the dictionary meaning of the same, the same must be given an extended meaning to read "to get back possession"
which is also an act of acquisition and, therefore, NHAI is liable to pay compensation to the fourth respondent for causing damage to his property on plot no.s 4603-04 at the time of taking re-possession of land bearing plot nos. 1372-73. He urged the Court to consider the scheme of the NH Act. According to him, provisions contained in Section 3G are in the nature of beneficent legislation ordaining that for acquisition of land and for taking possession thereof by NHAI if anyone's property and/or interest therein has been affected, he is entitled to compensation to be computed by the competent authority. In this connection, he relied upon the decision of the Apex Court in Bombay Dyeing Manufacturing Company Ltd. vs. Company Environment Action Groups reported in AIR 2006 SC 1489 for the proposition that assignment of contractual meaning to a statute is permissible having regard to the constitutional as well as international law operating in the field. According to him, Article 300A of the Constitution bars deprivation of a right to property save by authority of law. NHAI having taken steps for the purpose of re-possessing plot no.s 1372-73 and in the process having caused damage to the fourth respondent's shopping complex on plot nos. 4603-04 which were authorised constructions, the general meaning of the word acquisition ought to be considered for deciding the issue involved in the present petition. He next relied on the decision of the Apex Court in S.M. Nilajkar vs. Telecom District Manager, Karnataka reported in (2003) 4 SCC 27 for the proposition that in case of doubt in construing a beneficent legislation and where it is possible to take two views, the provision which serves the interest of the beneficiaries must be adopted. In this regard he also relied on a decision in N. Roy, Commissioner of Police vs. Suresh Ramsingh reported in (2006) 5 SCC 745. The scheme of the Act, according to him, clearly shows that it is a beneficent legislation for the purposes of giving compensation to affected persons and as such the provisions ought to be liberally construed by the Court. If Section 3G of the Act is construed liberally and in favour of the fourth respondent, his constitutional rights as protected by Articles 14 and 300A of the Constitution would be upheld.
Secondly, he submitted that NHAI is estopped from questioning the jurisdiction of the first respondent to award compensation. This submission was sought to be supported by him by referring to the conduct of NHAI at the time the proceeding was pending before the first respondent, the conduct of NHAI in relation to the claim made by one Sankar Prosad Rakshit (hereafter Rakshit for short) as well as the order dated 18.12.01 passed by this Court on the writ petition of the 4th respondent.
It was contended by him that NHAI never raised the question of jurisdiction before the first respondent before filing of the writ petition; on the contrary, it abstained from taking part in the proceedings before the first respondent on the ground that the intra-court appeal was pending though the issue involved in the said appeal had no relevance with the issue which was before the first respondent. In this connection reliance was placed on the Division Bench decision of this Court in Purba Lama vs. State of West Bengal reported in 1997 (2) CHN 98.
Referring to the order dated 18.12.2001 passed by this Court, Mr. Bandopadhyay submitted that the NH Act did not in any manner authorise the first respondent to decide whether plot nos. 1372-73 were at all encroached by the 4th respondent or not. However, such question was directed to be considered by the first respondent by this Court and the same was accepted both by NHAI and the fourth respondent without raising any demur. He continued by submitting that the first respondent having acted in compliance with the Court's order and having returned a finding that plot nos. 1372-73 had only been encroached without there being any encroachment on any other land belonging to NHAI and liberty having been granted to NHAI to take steps for demolishing the structure only on the encroached portion of the land, the first respondent did have the jurisdiction to ascertain, on the complaint made by the fourth respondent and referred to him by the District Magistrate concerned, as to whether demolition by NHAI in terms of his order had extended to authorised portions of the structure or not since the same was squarely covered by the order of this Court. The first respondent having enquired into the issue and having found that NHAI had, in fact, acted illegally and in a high-handed manner by demolishing the authorised structure of the fourth respondent, he had the necessary jurisdiction to pass orders on NHAI to compensate the fourth respondent owing to damage caused by it. According to him, the first respondent's jurisdiction to ascertain whether there had been encroachment of NH 2 by the structure erected by the fourth respondent having been accepted by NHAI, it was no longer open to it to question the jurisdiction of the first respondent to enquire as to whether the demolition drive undertaken in pursuance of his order extended to the authorised portion of the structure or not.
Next, he invited the attention of the Court to the documents brought on record by the supplementary affidavit filed by the 4th respondent.
It appears therefrom that NHAI required the land of Rakshit. Without taking recourse to law, the structure of Rakshit was demolished by it for extension of highway. Rakshit complained to the administrative authorities and prayed for compensation. Feeling aggrieved by the inaction of the administrative authorities to redress his grievance, Rakshit moved a writ petition before this Court. Specific allegation therein was that demolition of the structure raised by him was undertaken by NHAI without acquiring the land in accordance with law. That writ petition was disposed of on 17.3.03 by this Court with a direction upon the appropriate authority to consider the representation of Rakshit claiming compensation within the time specified therein. It appears from the letter dated 2.12.2003 issued by NHAI to the first respondent that compensation had been determined as per Section 3G(7) of the NH Act and a request was made to him to compute the amount of compensation payable to Rakshit in order to comply with the order of this Court. In reply to a query of the District Magistrate concerned, by a further letter dated 20.1.2004 NHAI confirmed that compensation had been determined as per Section 3G(7) of the Act which had duly been vetted by the first respondent and that approval of the competent authority of NHAI had been solicited for disbursement of compensation to Rakshit. It was further mentioned therein that the plot of land belonging to Rakshit was indispensable and that possession thereof would be taken over by executing a registered deed. By another letter dated 28.2.2004 the Project Director of NHAI, inter alia, confirmed that the first respondent had, vide his letter dated 5.2.04, reconfirmed the assessed amount. A demand draft of the amount assessed by the first respondent issued by NHAI has also been annexed to the said affidavit for establishing the fact that compensation as assessed by the first respondent in terms of Section 3G(7) of the Act has duly been paid to the person affected.
By relying on the contents of the aforesaid supplementary affidavit, Mr. Bandopadhyay submitted that NHAI has been conveniently changing its stand as and when it acts illegally. It has approached the first respondent for the purpose of making an order for compensation and has duly accepted the compensation determined by the first respondent though there was no acquisition of the land of Rakshit. He submitted that NHAI having accepted determination made by the first respondent even in a case where acquisition of property had not been resorted to but NHAI had acted illegally in demolishing a structure without taking recourse to law, it cannot be allowed to take a different stand being an Article 12 authority in respect of another citizen whose property has been damaged by it. In this connection, he relied on the decision of the Apex Court in Union of India vs. Kumudini Narayan Dalal reported in (2001) 10 SCC 231 (para
2). On the authority of the said decision it was argued that once NHAI has accepted the jurisdiction of the first respondent to determine compensation under Section 3G(7) of the Act in a case when there was no acquisition in terms of provisions contained in the NH Act, NHAI is estopped from challenging the decision of the first respondent in the present case where also NHAI contends that there has been no acquisition in terms of the provisions of the NH Act. On the basis of the aforesaid submissions, he contended that NHAI is estopped from taking the plea of jurisdiction of the first respondent to determine the amount of compensation.
Final point which was urged is that the first respondent had acted as the competent authority in terms of provisions contained in the NH Act. The NH Act being a central statute and the competent authority being a statutory authority appointed by the Central Government, NHAI being an Article 12 authority and a public sector undertaking could not have institute the present proceedings in view of the law laid down in Mahanagar Telephone Nigam Ltd. vs Chairman, Central Board reported in AIR 2004 SC 2434 without approaching the high power committee, for, such a course has been considered to be detrimental to public interest and would result in wastage of public money and time which is otherwise avoidable. According to him, NHAI has been taking shelter of technicalities of law after indulging in illegal activities and not having approached the Writ Court with clean hands is not entitled to any relief. He, accordingly, prayed for dismissal of the writ petition.
In reply, Mr. Basak contended that question of NHAI being estopped from raising the question of jurisdiction of the first respondent does not and cannot arise. According to him the order dated 18.12.2001 passed by this Court cannot be construed as one directing the first respondent to exercise powers as competent authority under the NH Act. In any event having regard to the settled law that consent cannot confer jurisdiction, as held in the decision of the Apex Court in S. Sethuraman vs R. Venkataraman reported in (2007) 6 SCC 382, it cannot be contended that NHAI is estopped from raising the issue of jurisdiction of the first respondent.
Referring to the proceedings initiated by Rakshit and the orders passed thereon from time to time by this Court as well as NHAI and the first respondent, he contended that the land was ultimately purchased from Rakshit without recourse to provisions of the NH Act and, therefore, the same would have no applicability in the facts and circumstances of the present case. He also sought to contend that the decision in Purba Lama (supra) would have no application on facts and in the circumstances of the case since the competent authority in the instant case had no jurisdiction and as such question of NHAI submitting to its jurisdiction cannot arise and that the said decision has to be read in the context of the pronouncement of the Apex Court in S. Sethuraman (supra). He sought to distinguish the decision in Kumudini (supra) by submitting that the facts therein were entirely different.
Countering the submissions of Mr. Bandopadhyay that the word 'acquire' must be construed as anything done to get back possession, he submitted that an element of permanency and finality involving a transfer of title is ingrained in the word 'acquire' and the same appears from the scheme of the NH Act. Any plot of land required by NHAI for the purpose of structuring a road may be acquired in terms thereof which indicate the element of permanency, for, unless the land is acquired or title of the same is transferred to it in accordance with the other provisions of law, NHAI would not be in a position to utilise the same. However, in the instant case plot nos. 4603-04 were not at all required for the purpose of construction of highway and therefore the same have not been acquired and no compensation for any damage, if at all caused to the fourth respondent, can be ordered by the first respondent and it is the competent Civil Court which is to be approached by the fourth respondent for redress of his grievance. He relied on the decision of the Apex Court in I.T. Commissioner, Orissa vs M/s N.C. Budharaja reported in AIR 1993 SC 2529 for the proposition that a statute cannot always be construed with the dictionary in one hand and the statute in the other and that regard must also be had to the scheme, context and legislative history of the provision. The decision in S.N. Nilajkar (supra) was sought to be distinguished by submitting that the word retrenchment fell for consideration before the Court and the factual situation being different, the said decision in no way would aid the Court in deciding the issue raised herein. The decision in N. Roy (supra) was sought to distinguished by submitting that it had been held therein that the Court could not enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous. According to him the competent authority under the NH Act has the power to award compensation only in cases where a plot of land is acquired for the purpose of construction of highways and acquisition in terms thereof is resorted to, and such provision would not extend to cases like the present one where the land of the fourth respondent being plot nos. 4603-04 had not been acquired at all. The decision in Bombay Dyeing (supra), it was contended, discussed the principles of purposive legislation and that applying such principles of purposive legislation, the only conclusion that can be arrived at in respect of the word 'acquire' in the NH Act is that it contemplates permanent transfer of title of the land in question which is not involved herein. The decision in Mahanagar Telecom (supra) was sought to be distinguished by submitting that NHAI has not been litigating against a Government organisation or a department but it had questioned the propriety and/or legality of an order of a quasi judicial authority who usurped a power not conferred by the statute and in such case the permission of the high-power committee is not necessary.
Regarding the prejudice suffered by the fourth respondent, he submitted that NHAI has to deal with public money and no matter whether any prejudice has occasioned to the fourth respondent or not, NHAI cannot allow public money to be wasted on the basis of an order passed by an authority who had no jurisdiction to pass it and, therefore, only on the ground of prejudice, claim of NHAI cannot be defeated. He concluded by submitting that the petition ought to be allowed by setting aside the order of the first respondent. Having heard learned Counsel for the parties, the questions that arise for determination by this Court at the instance of NHAI is as to whether the first respondent had the jurisdiction to pass any order assessing compensation payable to the fourth respondent having regard to the fact that no portion of the land of the fourth respondent was acquired for the purpose of expansion of NH 2, and at the instance of the fourth respondent as to whether the writ petition is at all maintainable at the instance of NHAI against an order passed by the competent authority under the NH Act and further having regard to the fact that NHAI itself had approached the first respondent for computation of compensation payable to Rakshit, whether it is justified in taking a different stand so far as the order impugned vis-à-vis the fourth respondent is concerned. Before this Court proceeds to decide the contentious issues raised by the parties, certain provisions of the NH Act are worth noting. The NH Act, as it originally stood, did not contain any provision for acquisition of land for expansion of highways and compensation payable therefor. However, with the introduction of the Amendment Act, 1997, inter alia, contents of Section 3 were substituted by incorporation of the definitions of 'competent authority' and 'land' and Sections 3A to 3J were incorporated. Competent authority in terms of the Act would mean any person or authority authorised by the Central Government by notification in the official gazette to perform the functions of competent authority for such area as may be specified in the notification. Section 3A confers power on the Central Government to acquire land for a public purpose i.e. land required for building, maintenance, management or operation of a national highway. Sections 3B to 3F provide for steps to be taken after issuance of notification under Section 3A (3). Section 3G provides for determination of amount payable as compensation. Such determination in terms of Section 3G (1) shall be by an order of the competent authority. Sub-section (5) thereof authorises parties aggrieved by the order of the competent authority determining compensation to have the issue decided by an arbitrator to be appointed by the Central Government. Sub-section (7) thereof lays down the factors which are to be taken into consideration by the competent authority or the arbitrator while determining the amount under sub-sections (1) or (5), as the case may be.
Bare perusal of Section 3G (1) of the Act makes the position clear that compensation is payable for any land acquired under the NH Act. How land is to be acquired is spelt out in Section 3A. It has to be by a notification published in the official gazette giving brief description of the land to be acquired and the substance of the notification has to be published in two local newspapers, one of which shall be in vernacular.
Admittedly, in the present case, land occupied by the fourth respondent was not sought to be possessed by NHAI in terms of any notification issued under Section 3A (1). From the narration of facts of the case as above, it can be discerned that a dispute existed at one point of time as to whether the fourth respondent had encroached any portion of NH 2 or not and that issue has since come to rest with the order of the first respondent (in compliance with the order dated 18.12.01). Removal of encroachment and possession of the land encroached by the fourth respondent had been taken over by NHAI not in accordance with any of the provisions contained in the NH Act. Reliance on the dictionary meaning of the word 'acquire' by Mr. Bandopadhyay is misplaced having regard to the provisions of the NH Act which are clear and unambiguous. Section 3G(1) ordains that where any land is acquired under this Act, there shall be paid an amount which shall be determined by the competent authority. The words 'under this Act' are significant. These words denote that the act of acquisition has to be undertaken in terms of provisions contained in Sections 3A to 3F of the NH Act. Had these words not been there, the position may have been different. The position as it stood on the date the first respondent initiated proceedings was that there was no notification issued under Section 3A (1). Therefore, the jurisdictional fact, existence of which would have clothed the first respondent with the authority and competence to determine compensation payable to the fourth respondent being absent, Mr. Basak is right in his submission that the first respondent could not have exercise powers under Section 3G to determine the quantum of compensation payable by NHAI to the fourth respondent. The order passed by the first respondent in view of the above discussion appears to be indefensible. Next, the Court would consider the issue of maintainability of the writ petition raised by Mr. Bandopadhyay. Although it ought to have been decided as a preliminary issue, this Court would proceed to decide it keeping in mind the discussion made above regarding the jurisdiction of the first respondent to assume powers under the NH Act in a case where there has been no acquisition of land in terms thereof.
NHAI is a creature of the National Highways Authority of India Act, 1988 (hereafter the NHAI Act). Section 3 of the NHAI Act provides for constitution of the NHAI. The Chairman and the members of the NHAI are to be appointed by the Central Government by notification in the official gazette in terms of Section 3(3) thereof. Section 11 confers power on the Central Government to vest or entrust any national highway in the NHAI by notification in the official gazette. On and from the date of publication of such notification, assets and liabilities of the Central Government would stand transferred to NHAI. Section 16 of the NHAI Act provides for the functions of NHAI subject to rules made by the Central Government. The Central Government in terms of Section 17 of the NHAI Act may provide to NHAI grants and loans. Funds of NHAI may be invested by it in the securities of the Central Government or in manner prescribed by rules framed thereunder, as enshrined in Section 20 thereof. Powers to issue directions and to frame rules have been given to the Central Government in terms of Sections 33 and 34 of the NHAI Act respectively. The Central Government has the power to temporarily divest NHAI of management of any national highway by exercising power under Section 31 of the NHAI Act. Similarly, Section 32 confers power on the Central Government to supersede NHAI.
Reading of the aforesaid provisions makes the position clear that control of the Central Government over NHAI is deep and pervasive. Keeping these statutory provisions in mind, this Court would now proceed to decide as to how far and to what extent NHAI is justified in questioning the correctness, legality and validity of the order of the first respondent who acted as the competent authority under the NH Act in determining compensation payable to the fourth respondent. It is not in dispute that the Central Government by notification in the official gazette dated 16.7.01, in exercise of power conferred by Section 3(a) of the NH Act, has authorised the Additional District Magistrate (Land Acquisition), office of the Collector and District Magistrate, District Burdwan, West Bengal as the competent authority to perform the functions of such authority under the NH Act, with effect from the date of publication thereof, in respect of the land stretching from Km. 511/000 to Km.581/457 on NH 2 (for widening of existing highway as well as constructing bypasses, if any) in the State of West Bengal as specified in the schedule appended thereto. It is further not in dispute that the land on which the shopping complex of the fourth respondent has been constructed falls within the jurisdiction of the competent authority as mentioned in notification dated 16.7.01.
It would appear from the said notification that the authorization made by the Central Government in favour of the Additional District Magistrate (Land Acquisition), office of the Collector and the District Magistrate, Burdwan is a delegation of power by the Central Government and the competent authority while exercising powers in terms of the NH Act would act as the delegate of the Central Government.
In the present case, the Additional District Magistrate (LA), Burdwan was directed by the District Magistrate, Burdwan on an approach being made by the fourth respondent to decide the issue of compensation, if any, payable to the fourth respondent by NHAI for damage caused by it while removing encroachment not in the capacity of competent authority authorized by the Central Government under the NH Act to determine compensation but in the capacity of the office he holds in the Collectorate of Burdwan. Removal of encroachment and damage caused in course thereof which might require determination of compensation payable is not within the province of the Additional District Magistrate under the NH Act, yet, it was the first respondent purporting to act as competent authority under the NH Act who took cognizance of the complaint lodged by the fourth respondent and decided the issue as such 'competent authority'. Though it appears from the letters issued by NHAI in connection with proceedings initiated by the first respondent that the same had been addressed to the competent authority, that by itself would not confer jurisdiction on the Additional District Magistrate (LA) to discharge functions of competent authority. Any and every decision given by the first respondent purporting to exercise powers of competent authority under the NH Act cannot be treated as a decision of the Central Government, particularly when the Central Government is not the repository of power conferred by the NH Act to decide the quantum of compensation payable for damage caused in course of removal of encroachment. This being the position on facts, despite the legal position discussed above in respect of deep and pervasive control exercised by the Central Government over the NHAI, this Court finds no justification to conclude that NHAI was obliged to approach the High Power Committee before presenting this petition, as directed by the Apex Court in its decisions in Mahanagar Telephone (supra) and Chief Conservator of Forest, Govt. of A.P. vs. Collector and ors. reported in AIR 2003 SC 1805.
The objection raised by Mr. Bandopadhyay with regard to maintainablity of the writ petition, accordingly, stands overruled.
The contention raised by Mr. Bandopadhyay based on the contents of the supplementary affidavit, noted above, has exercised this Court's serious consideration.
In the considered view of this Court, the point raised by Mr. Bandopadhyay has substantial force. The land of Rakshit was not acquired by NHAI in terms of provisions contained in the NH Act, yet, the structure thereon was demolished. This was at or about the same time the structure of the fourth respondent on the encroached portion was demolished in course whereof the structure which was authorized was damaged. In order to comply with the order passed by this Court on 17.3.03, the first respondent appears to have conveyed the land value of L.R. Plot No.659, R.S. Plot No.573(P) of Mouza Khajaanwarbed, District Burdwan amounting to Rs.1,40,380, vide Memo dated 20.10.2003. On such determination being made and on receipt of determination made by the Government registered valuer regarding the value of structure, the same officer who affirmed the affidavit accompanying the present petition by his letter dated 2.12.03 appears to have sought for approval of the first respondent in relation to compensation determined as per Section 3G (7) of the NH Act for complying with the order of Court. It further appears from the letter dated 20.1.04 of the same officer addressed to the concerned District Magistrate that compensation determined as per Section 3G (7) of the NH Act had been vetted by the first respondent. It was pursuant to the above steps that NHAI proceeded for transfer of property by purchase instead of acquisition. For determining the compensation payable to Rakshit for demolition of his structure without recourse to law, i.e. by way of an acquisition in terms of Section 3A (1) of the NH Act, NHAI voluntarily called upon the first respondent to determine the land value (there being no specific direction on it to pay compensation in terms of Court's order dated 17.3.03) and acted on such determination made by him, and later on also proceeded to take steps for transfer by purchase on the amount being vetted by him. If one goes by the terms of the NH Act vis-à-vis the facts of Rakshit's case, NHAI had no obligation under the statute to approach the first respondent. Facts are clear that the services of the first respondent had been utilized by NHAI to wriggle itself out of a problematic situation arising out of dispossession of a citizen from his property without the authority of law. The shopping complex of the fourth respondent (the authorised portion) was demolished at or about the same time Rakshit's structure was demolished. Should NHAI be allowed to take a different stand now in case of the fourth respondent when the first respondent upon due enquiry and survey has reached a conclusion that NHAI in removing encroachments had touched upon legal constructions made by the fourth respondent and had subjected it to such damage that he is entitled to be compensated by it? The answer to the above question must be in the negative.
It is settled law that a Writ Court is not only a court of law but also a court of equity. The conduct of NHAI does not entitle it to exercise of discretion in its favour. It did not oppose determination of the issue of alleged encroachment of NH 2 by the fourth respondent, by the Additional District Magistrate (LA), Burdwan. In fact, the order of the said officer having enured to its benefit, was promptly implemented. Order of the concerned District Magistrate requesting the Additional District Magistrate (LA) to decide the issue of compensation was never questioned by it. The same officer has by the impugned order now determined the amount of compensation payable to the fourth respondent by NHAI. Despite opportunity granted by the first respondent, NHAI did not appear before him and raise any objection questioning his jurisdiction. It abstained from attending the enquiry on an irrelevant and insignificant ground that a writ appeal against the order dated 20.8.02 preferred by the fourth respondent was pending. After all an officer, who is otherwise authorised by the Central Government to determine compensation payable under the NH Act to persons deprived of property due to acquisition, acting independently has applied his mind and come to a conclusion that NHAI has touched upon authorised portions of the shopping complex of the fourth respondent and has caused damage to his property while removing encroachment. It was that very officer who had determined that the fourth respondent while constructing a shopping complex had encroached a flank of NH
2. While determining quantum of compensation payable, he has taken into consideration factors spelt out in Section 3G (7) of the NH Act which he is also required to consider for determining compensation payable on acquisition of land in terms of provisions contained in the NH Act. This Court finds the approach to be fair and reasonable for it was the Additional District Magistrate (LA) who was best suited to decide as to whether NHAI overstepped the limits of the order 19.3.02 or not. The object of providing compensation is to place the claimant as far as possible in the same position financially as he was before the act by which he has been deprived of something. Perfect compensation is hardly possible to be assessed and money cannot be a complete substitute for the deprivation/loss suffered. Justice requires that it should be equal in value, although not alike in kind. A grave injustice would occasion if the Court encourages NHAI to maintain double standard. Certainty in State action is an important aspect of the rule of law. NHAI being an Article 12 authority ought to maintain uniformity and certainty in all its actions and cannot be allowed to shift stands to suit its convenience as and when it chooses. There is no basic difference in the plights of Rakshit and the fourth respondent, - both have been battered and shattered albeit via different modes. While Rakshit has been compensated promptly to keep misdeeds of the officers of NHAI under wraps, the fourth respondent unfortunately has been dragged to Court to contest a proceeding in which NHAI has sought for orders to obliterate an order that holds it responsible for acting dehors the order by which it was granted liberty to remove encroachment. A writ petition is not intended to facilitate avoidance of obligations voluntarily incurred, is the settled law. This Court finds no sufficient reason, in furtherance of public interest, to exercise discretion in its favour.
The writ petition stands dismissed. Parties, however, shall bear their own costs. The fourth respondent shall be entitled to interest at the rate indicated in the interim order dated 30.9.04 of this Court. He shall be entitled to further interest at the same rate till such time the payment as ordered by the first respondent is actually released in his favour.
Urgent photostat certified copy of this judgment and order, if applied for, shall be furnished to the applicant within four days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.) Later :
A prayer for stay of operation of the order has been made by Mr. Roy, learned Counsel appearing for NHAI. Such prayer has been opposed by Mr. Bandopadhyay, learned Counsel appearing for the fourth respondent. He submits that for a period of three weeks from date, no steps shall be taken for enforcement of the impugned order of the first respondent. In view thereof, this Court considers it unnecessary to consider NHAI'S prayer for stay of the operation of the order.
(DIPANKAR DATTA, J.)