Allahabad High Court
Anurag Srivastava And 2 Others vs National Highway Authority Of India ... on 6 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1462, 2020 AIR CC 628 (ALL), 2020 (1) ALJ 326, 2020 (1) ALR SOC 8 (ALL), (2019) 9 ADJ 769 (ALL), 2020 (139) ALR SOC 8 (ALL), (2019) 136 ALL LR 640
Author: Pankaj Bhatia
Bench: Pradeep Kumar Singh Baghel, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - C No. - 107 of 2019 Petitioner :- Anurag Srivastava And 2 Others Respondent :- National Highway Authority Of India Through Its Chairman And 2 Others Counsel for Petitioner:- Shyam Narain Rai, Shri Ravi Kant (Senior Advocate) Counsel for Respondent :- A.S.G.I., C.S.C., Neeraj Dube Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Pankaj Bhatia,J.
(Delivered by Hon. Pradeep Kumar Singh Baghel , J.) The petitioners have instituted this writ proceedings aggrieved by an award dated 19th September, 2018 passed by the second respondent in respect of their land which has been acquired under the provisions of the National Highways Act, 19561.
The facts are these: the petitioner no. 3 along with her two sons, namely, Anurag Srivastava and Arvind Srivastava, petitioner nos. 1 and 2 respectively, are the owners of Plot Nos.257, 448 and 450 situated in Village Babura Bhairodayal, Tehsil Lalganj, District Mirzapur. They claim that they have residential house over Plot Nos. 448-Kha and 450. The residential house of the petitioners has a garden with various varieties of trees planted in it. Their residential house is adjacent to the main road. The petitioners claim that they are not using Plot Nos. 448, 257 and 450 for any agricultural purpose. Plot Nos. 448 and 450 were chak out during the consolidation proceedings due to their non-agricultural usage. It is stated that over Plot No. 257 the petitioners have constructed a permanent building, which is used as servant quarter and for keeping animals i.e. cows, buffaloes, etc. The respondent no. 1, the National Highway Authority of India2, has undertaken a project for widening of National Highway No. 7, from 98.640 Kms. to 140.265 Kms. in district Mirzapur (Varanasi- Hanumana Section). In this regard a notification under Section 3A of the Act, 1956 was published in the Gazette of India, Extraordinary, on 15th January, 2018. The petitioners' Plot Nos. 257, 448 and 450 admeasuring 0.0236, 0.0450 and 0.0260 hectares respectively were included in the said notification declaring the intention to acquire the land shown in the notification. The said notification was published in two newspapers, namely, 'Dainik Jagran' and 'Times of India' on 03rd February, 2018. Later the notification under Section 3D of the Act, 1956 was published on 02nd April, 2018.
The grievance of the petitioners is that the respondents in hot haste without proceeding in accordance with the provisions of Section 3G(3) of the Act, 1956 proceeded to determine the compensation and passed an award dated 19th September, 2018. It is stated that no publication was made in any newspaper inviting objections from the persons and the petitioners whose land was being acquired and they have not been paid adequate compensation.
It is averred in the writ petition that without giving any opportunity of hearing to the petitioners their land has been acquired that too without determining the adequate compensation for the land of the petitioners. The petitioners claim that ignoring the valuation of the land, which is more than Rs.6,500/- per square meter as per the circle rate prepared by the District Magistrate, a meager amount of compensation at the rate of Rs.218/- per square meter has been awarded. It is stated that the petitioner's land has been treated to be agricultural land ignoring the evidence that a pucca house is standing over it and the land is being used for non-agricultural purposes and it is located within a short distance from the road. The petitioners have brought on the record the photographs to demonstrate that a permanent structure is existing over the acquired land.
A counter affidavit has been filed on behalf of the first respondent. The stand taken by the respondent is that the petitioners' land has been acquired for the public interest. It is stated that on the plots of the petitioners there are trees. It is further stated that in the revenue record no land has been mentioned as non-agricultural land. The land in question has been acquired for the construction of four lane and a joint survey has been made on the acquired land of the petitioners by Study Point Samiti, Lucknow and employees of the tehsil. The compensation awarded to the petitioners is said to be adequate.
In reply to the averments made in Paragraph-12 of the writ petition that without publishing any notice under the provisions of Section 3G(3) of the Act, 1956 the respondents have proceeded to determine the compensation, a vague and evasive reply has been made in the counter affidavit. However, a supplementary counter affidavit has been filed on behalf of the first respondent, wherein it has been mentioned that inadvertently in the notification dated 29th April, 2018 instead of Section 3G(3) the provision has been mentioned as 3D(1) and it was a mistake.
We have heard Sri Ravi Kant, learned Senior Advocate, assisted by Sri Shyam Narain Rai, learned counsel for the petitioners, and Sri Neeraj Dube, learned counsel for the first respondent- NHAI.
Learned counsel for the petitioners submitted that no notice under Section 3G(3) of the Act, 1956 has been published and the authorities have determined the compensation without inviting objection. The notice under Section 3G(3) of the Act, 1956 is mandatory, hence the entire proceeding for determining the compensation has caused serious prejudice to the interest of the petitioners. It was urged that the compensation awarded to the petitioners is totally inadequate and upon erroneous assumption, therefore, it is arbitrary exercise of power. Learned counsel for the petitioners has placed reliance on a judgment of a Division Bench of this Court in the case of Sharda Yadav v. Union of India and others, Writ-C No. 30046 of 2014, decided on 18th July, 2014.
Sri Neeraj Dube, learned counsel for the first respondent, submitted that the notice under Section 3G(3) of the Act, 1956 was published on 29th April, 2018, but by mistake in the notice Section 3D was mentioned.
We have considered the submissions advanced by learned counsel appearing for the parties and perused the record.
Indisputably, the petitioners are owners of Plot Nos. 257, 448 and 450, which have been acquired by the first respondent for widening of National Highway. The Act, 1956 has been enacted to provide for the declaration of certain highways to be national highways and for matters connected therewith. By the Act 16 of 1997, Sections 3, 3A, 3B, 3C, 3D, 3E, 3F, 3G, 3H, 3I and 3J have been inserted in the Act, 1956. Section 3A empowers the Central Government to declare its intention to acquire any land, which is required for the building, maintenance, management or operation of a national highway or part thereof, for public purpose. A notification is published in the official gazette declaring the intention to acquire such land. Sub-section (2) of Section 3A provides that in the notification a brief description of the land is also to be mentioned. In addition to the official gazette, as per sub-section (3) of Section 3A the notice is also to be published in two local newspapers. Section 3B empowers the authorities to make inspection, survey, measurement, valuation, set out boundaries, etc. Section 3C gives an opportunity to the land owners to file their objection within twenty-one days from the date of publication of the notification under sub-section (1) of Section 3A. The objection, so made, is considered by the competent authority and after giving an opportunity the competent authority can either allow or disallow the objections. Section 3D provides that if after the notification published under sub-section (1) of Section 3A no objection is received by the competent authority within the specified period or where the objection has been filed and it has been disallowed by the competent authority, a report shall be submitted by the competent authority to the Central Government, which shall declare by notification in the official gazette that the land should be acquired for the purpose mentioned in sub-section (1) of Section 3A. Sub-section (2) of Section 3D provides that after publication of declaration in this section i.e. Section 3D(1), the land vests in the Central Government free from all encumbrances. Section 3E says that once the land is vested in the Central Government and the amount determined by the authority under Section 3G has been deposited, the competent authority may issue a notice to the owner, who is in possession, to surrender or deliver the possession to the competent authority or any person duly authorized by it. Section 3F gives a right to the authority to carry out maintenance, management or building of the national highways.
Under Section 3G the compensation is determined in respect of the land which is acquired. Sub-section (3) of Section 3G provides that before proceeding to determine the amount the competent authority shall give a public notice in two local newspapers, one of which will be in a vernacular language, inviting claims from all persons interested in the land to be acquired.
Since the present dispute is in respect of the requirement of publication of notice, Sections 3D and 3G of the Act, 1956, which are relevant for the purpose, are extracted below:
"3D. Declaration of acquisition.--(1) Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A.
(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority."
"3G. Determination of amount payable as compensation.-- (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.
(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent. of the amount determined under sub-section (1), for that land.
(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.
(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.
(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.
(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.
(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration--
(a) the market value of the land on the date of publication of the notification under section 3A;
(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;
(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;
(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change."
From a simple reading of Sections 3D and 3G of the Act, 1956 it is evident that the purposes of publication of the notice in both the sections i.e. Sections 3D and 3G are entirely different. Under Section 3D there is a declaration of acquisition and after the notification is made in the official gazette, the land vests absolutely in the Central Government free from all encumbrances. After acquiring the land, the next step is determination of compensation. Section 3G(3) again requires that before proceeding to determine the compensation, the competent authority shall give a public notice in two local newspapers, one in vernacular language, inviting claims from all persons interested in the land to be acquired. Sub-section (4) of Section 3G clearly provides that the notice shall give the particulars of the land and an opportunity is to be afforded to the land owner to appear in person or by his agent or by a legal practitioner before the competent authority before determining the compensation.
In the present case, in Paragraph-10 of the writ petition the petitioners have made the following averments:
"10. That in hot haste without proceeding in accordance with the provisions of Section 3G(3) of the Act of 1956, the respondents have proceeded to determine the compensation by means of an Award dated 19.9.18. It is stated that no publication was made in any newspapers inviting objections from persons and the petitioners whose land was being acquired for proper valuation of his land which was being acquired against the valuation of their land proposed by the respondents so that adequate compensation be determined and paid to them. There was no publication in any newspapers or any local newspaper notifying the petitioners or persons whose land was being acquired of the date, time and place where the objections had to be made against the proposed valuation which was being made by the respondents of the land sought to be acquired for expansion of the National Highway by means of notification dated 15.01.2018 and 03.02.2018."
The first respondent in its counter affidavit has denied the said statement and has made an evasive reply. In Paragraph-11 of the counter affidavit it is stated that a gazette notification under Section 3D(2) [/kkjk 3?k] mi/kkjk (2)] was made on 02nd April, 2018 and thereafter under Section 3G(3) before determination of compensation the notice has been published in two newspapers in 'Amar Ujala' and 'Indian Express' on 29th April, 2018, which have been brought on record as CA-1 to the counter affidavit. Paragraph-11 of the counter affidavit reads as under:
"11. That the contents of paragraph 10 of the writ petition are not admitted. It is further stated that the notification no. 1316 of the acquire land of village Babura Bhairav Dayal published in the Gazette under Section 3D on 2.4.2018, thereafter under Section 3G(3) of NH Act before determination of the compensation notice has been published in two newspaper Amar Ujala and India Express on 29.4.2018. A true copy of the Gazette notification published on 29.04.2018 is being filed for kind perusal of this Hon'ble Court as Annexure No. CA-1 to this affidavit."
From a perusal of Paragraph-11 of the counter affidavit it is clear that no specific reply has been given with regard to issue raised by the petitioners that no notice was published under Section 3G(3).
Later a supplementary counter affidavit has been filed by the first respondent wherein it has been admitted that by mistake in the notice under Section 3G(3), Section 3D has been mentioned. Paragraphs-3 and 4 of the supplementary counter affidavit are reproduced hereunder:
"3. That the under Section 3D(1) of the NH Act, 1956 Gazette notification has been published on 2.4.2018, thereafter under provision of 3G(3) of the Act notification has been published in two newspaper Amar Ujala and Indian Express on 29.4.2018, but due to mistake of the publication it has been shown in the newspaper Section 3D(1) instead of 3G(3) of the Act.
4. That in para 11 of the main counter affidavit (sworn on 24.02.2019) correct provision of Section 3G(3) of NH Act 1956 has been mentioned in accordance with which publication in two local newspaper is done. However, in the notification dated 29.4.2018 instead of mentioning correct provision of 3G(3), the provision has been mentioned as 3D(1). Accordingly this Supplementary Counter affidavit taken on record treating part of para 11 of the main counter affidavit."
From a perusal of Paragraph-11 of the counter affidavit it is evident that an incorrect statement has been made that notice under Section 3G(3) of the Act, 1956 was published. In support of the said statement the respondents have brought on the record a gazette notification as CA-1 to the counter affidavit. A perusal of the said gazette notification shows that it is a notice under Section 3D and not under Section 3G as mentioned in Paragraph-11 of the counter affidavit. Later a supplementary counter affidavit has been filed explaining that in the gazette notification it has been wrongly shown as Section 3D. In fact, it should be Section 3G(3). We are of the opinion that the said explanation cannot be accepted. From a perusal of the aforesaid pleadings we are constrained to observe that the officers of the NHAI have tried to evade the issue and it was not fair on their part to give an evasive and vague reply in their counter affidavit. The NHAI is a statutory authority and it is not expected from it to conduct itself like an ordinary litigant. It was its duty to place the correct facts before the Court fairly. In the supplementary counter affidavit it has been admitted that by mistake instead of Section 3G(3), Section 3D has been mentioned.
The scheme of the amendment brought by the Act 16 of 1997, whereby Sections 3A to 3J have been inserted in the Act, 1956, clearly shows that the notification has to be published at three stages: first, under Section 3A(2) declaring intention to acquire the land and inviting objections; secondly, under Section 3D(2) for declaration to the effect that the land should be acquired and on such declaration the land vests absolutely in the Central Government; and thirdly, under Section 3G(3) a public notice is required to be published in two local newspapers inviting the claims from all the persons interested in the land.
It is admitted case that only two notices have been published under Sections 3A and 3D of the Act, 1956. No other notice has been brought on the record by the authorities along with the counter affidavit.
As regards the averment that in the gazette notification by mistake in stead of Section 3G Section 3D has been published, it is not acceptable. If there was a mistake in the publication in two newspapers on 29th April, 2018, the respondents ought to have issued a corrigendum. No such step has been taken to correct the mistake.
A Division Bench of this Court in the case of Sharda Yadav (supra) has considered the similar facts. In that case also, the notice under Section 3G was not issued. The Court held as under:
"Having considered the submissions raised, we find that there is a statutory obligation for publishing the notice in two newspapers for the purpose of award of compensation under Section 3-G of the Act. The petitioner has categorically stated in paragraph 20 of the writ petition that no such notice was ever published nor any opportunity was given to the petitioner to file any objections.
Sri Mehrotra submits that the notification dated 3.11.2011 should be considered to be a notification published in the newspaper under Section 3-G of the Act.
We are afraid that the said notification is a notification under Section 3-D and is not a notification under Section 3-G of the Act. The averment contained in paragraph 28 of the counter affidavit is, therefore, misleading. The respondents, therefore, have not complied with a statutory provision containing the principles of natural justice engrafted in the Act itself. It is settled law that if an act requires to be performed after publication of the notice in the newspaper then it is not a mere formality and the matter relating to award of compensation dealing with substantive right of a tenure holder cannot be defeated by delivering the award without complying with the aforesaid provision. Once it is held that the award is in violation of principles of natural justice then it is not necessary for this Court to relegate the petitioner to the remedy under the 1996 Act. The award itself being contrary to the provisions of Section 3-G and in contravention thereof, we have no hesitation to hold that the said act of the authority was in complete disregard of the statutory provisions resulting in violation of principle of natural justice. The question, therefore, availing of any alternative remedy by the petitioner on the facts of this case does not arise and we are supported in our view by the law pronounced by the Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, reported in 1998 (8) SCC Page 1.
The award which has been rendered in relation to the agricultural land of the petitioner is clearly in violation of Section 3-G of the Act as the award itself also nowhere recites that any such notice was published in the newspaper as required in the said provision. Consequently, the impugned award dated 30.4.2013 to the said extent is quashed."
We find that the facts of this case are squarely covered by the law laid down by the co-ordinate Bench decision of this Court in Sharda Yadav (supra). Similar argument was raised in that case also that notice under Section 3D be treated as notice under Section 3G. In the present case, it is admitted case of the respondents that by mistake in the notice under Section 3G(3), Section 3D was mentioned but no corrigendum has been issued. Moreover, the respondents have not brought on the record the notice dated 29th April, 2018 in spite of filing a supplementary counter affidavit.
For all the reasons mentioned above, we find that the award dated 19th September, 2018 passed by the second respondent under Section 3G of the Act, 1956 has been passed without following the procedure prescribed under Section 3G(3) of the Act, 1956, hence it is quashed to the said extent. We grant liberty to the petitioners to file objection in terms of Section 3G(3) of the Act, 1956 before the competent authority in respect of their claim that a construction is in existence and their land is non-agricultural. The competent authority shall consider their objections and pass the award in accordance with law after furnishing opportunity to the petitioners. The said exercise be undertaken expeditiously, preferably within four months from the date of communication of this order.
Accordingly, the writ petition is allowed. No order as to costs.
Dated: 06th September, 2019 SKT/-