Madhya Pradesh High Court
Prabhu Dayal Tripathi vs National Highway Authority Of India ... on 16 March, 2016
1
Writ Petition Nos.22314/2013, 19986/2014 (PIL),
14550/2015, 18612/2015, 18613/2015, 18614/2015,
18615/2015, 18616/2015, 18617/2015, 18618/2015,
18619/2015, 18620/2015, 18621/2015, 18622/2015,
18623/2015, Conc No.420/2016 & Conc No.459/2016
16.03.2016
W.P.No.22314/2013
None appears for the petitioner.
Shri Mohan Sausarkar, learned counsel for the
respondent/National Highway Authority.
The only relief claimed in this petition is to direct the respondents to refrain from dispossessing the petitioner from the subject land without following due process.
Counsel for the respondents submits that possession of the subject land has already been taken over after following due procedure.
The relief claimed in this petition, therefore, does not survive for consideration. If the petitioner is still aggrieved with the acquisition or quantum of compensation, is free to pursue any other remedy as per law. All questions in that behalf are left open.
Disposed of accordingly.
2W.P.No.19986/2014 (PIL) Shri A.D.Mishra, learned counsel for the petitioner. Shri Mohan Sausarkar, learned counsel for the respondent/ National Highway Authority.
Heard counsel for the parties on admission. By this petition under Article 226 of the Constitution of India notifications dated 09.03.2013 and 14.03.2014 have been challenged on the ground that the same are inappropriate.
It is noticed that the notification is the outcome of the planning done by the Expert Committee. It is not open to this Court to question the wisdom of the Expert Committee about the road alignment or road width. This position is no more res integra. The Supreme Court in the case of Union of India Vs. Kushala Shetty and others reported in (2011) 12 SCC 69 has rejected similar argument.
Accordingly, we dismiss this writ petition.
W.P.No.14550/2015None appears for the petitioner.
Shri K.N.Pethia, learned counsel for the respondent No.2/National Highway Authority.
Heard on admission.
3The relief claimed in this petition filed as public interest litigation is to restrain the National Highway Authority from encroaching upon forest area earmarked for sanctuary.
In the reply-affidavit, it has been plainly stated that wherever the National Highway is passing through the forest area, requisite permission and clearance from the competent Authority have been obtained, including the environmental clearance. That position has not been controverted by filing rejoinder.
Since, there is no reason to doubt that the Authority has taken permission for construction of concerned road, from the competent Authority, no other issue arises for consideration.
We dispose of this petition, accordingly.
W.P.No.18612/2015, W.P.No.18613/2015, 18614/2015 and 18615/2015 Shri Jitendra Tiwari, learned counsel for the petitioner.
Shri K.N.Pethia, learned counsel for the respondent National Highway Authority.
Heard counsel for the parties on admission.
4Only two points have been raised in this petition in support of the reliefs claimed. It is prayed that Annexure P-1 award passed by the Sub Divisional Officer, Gwalior be quashed and set aside and to restrain the respondents from taking possession of land in excess of the acquired area.
The principal grievance is that the National Highway Authority has taken over possession of the property belonging to the petitioner, which is in excess of the land notified for acquisition. Secondly, the notification issued on 19.07.2012 refers to base price of the year 2011-12. Instead, it should have mentioned base price of year 2012-
13. It is lastly argued that the compensation amount awarded to the petitioner in any case is inadequate.
Taking the last point first, the petitioner has statutory remedy of arbitration under the Act. The petitioner, if so advised, is free to take recourse to that remedy, which will have to proceed in accordance with law. We may not be understood to have expressed any opinion on the merits of that matter. All issues in the said proceedings must be decided as per law. Suffice it to observe that no other grievance need be dealt with in the present petitions.
The argument of the petitioner about the base price 5 should have been of the year 2012-13 is not supported by any statutory provision. No such provision has been brought to our notice. Further, if that notification is issued in the month of July, some benchmark was required to be provided, for which the base price of the financial year 2011-12 has been reckoned. That is in close proximity of the date of notification. In any case, for determining the quantum of compensation other relevant factors are taken into account and on that basis award appears to have been passed by the concerned Authority. In other words, even this contention does not merit further consideration.
The argument of the petitioner that the respondents/ National Highway Authority has been given in possession of land belonging to the petitioners in excess of the land notified for acquisition, also does not commend to us. The respondents by way of affidavit, in paragraph 4 of the reply, have submitted as under:-
"4. That as regards the contention contended by the petitioner that the competent authority has not followed the provisions of the Section 3(B) of the Act, 1956 is totally incorrect and misleading. The document which has been submitted by the petitioner as Annexure P-3 is not a complete document and it does not relate to the petitioners' land therefore a fresh document in which the petitioners' land was duly mentioned is enclosed as Annexure R-2 in which the total land of the petitioner and the total land of the 6 petitioners' has been mentioned as 0.93 hectare in which well is situated only on the area i.e. 0.010 hectare and the land which was acquired by way of the notification is 0.349 hectare in which the well is not situated, therefore, there is no question for mentioning the well and in such facts and circumstances it is specifically denied that the competent authority has not done any spot inspection under Section 3B. A complete process is provided under the Act 1956. After notification u/s 3A of the Act, 1956, objections were called for and a complete mode of hearing is provided under Section 3(C) of the Act, 1956, but the petitioners did not choose to file any objection. As far as objections with regard to existence of well/room is concerned, first, well/room is situated on very small portion of the land and part of land which is acquired on which well/room is not situated therefore there is no question to mention these facts. Apart from this as per Section 3(D) of the Act final publication is required to be published and an opportunity has been granted to the petitioners to submit the objections but objections were never filed. In such facts and circumstances, no relief can be granted. The entire process was duly conducted and processed strictly according the provisions of the Act, 1956 and there is no scope for challenging the aforesaid process. It is specifically denied that the National Highway is taking more land than the land which has been notified for acquisition. Under Section 3B, power has been given to the authorized person to enter for survey. Admittedly, proper publication was done on 05.09.2011, 06.09.2011 and 25.11.2011. The petitioner came to know about the acquisition proceedings by news paper namely Dainik Bhaskar & Nai Duniya. After publishing the gazette notification under Section 3A the petitioner has not submitted any application/objection before the competent authority. It is denied that respondent no.3 is not a competent authority. Under section 3B of act 1956 there is a power to enter for inspection of Survey nos. The respondent No.3 who is appointed by the central 7 Government has taken a survey and after doing spot inspection the notification was published."
No rejoinder-affidavit has been filed by the petitioners to counter the assertion of fact in the reply- affidavit. As that has remained uncontroverted, the grievance of the petitioners is prima facie, untenable.
Nevertheless, we are not expressing any final opinion on the correctness of this grievance. Instead, we give liberty to the petitioners to take recourse to civil suit for declaration and recovery of possession of the excess land, which was owned by the petitioners and allegedly did not form part of the notification issued by the Authorities for acquisition and/or award passed by the concerned Authority being disputed question of facts. If the entire land is subject matter of the award as contended by the respondents, the grievance of the petitioners of having been dispossessed without following due procedure can be tested in the civil suit, if filed.
The petitioners are free to take recourse to remedy of civil suit only in relation to the land owned and possessed by them at the relevant time, which was not made part of the notification for acquisition or the award. All questions in that behalf will have to be decided on its own merits, in accordance with law and are left open.
8Petitions disposed of accordingly.
W.P.No.18616/2015, 18617/2015, 18618/2015 & 18621/2015, 18622/2015 Shri Jitendra Tiwari, learned counsel for the petitioner in W.P.No.18618/2015 and W.P.No.18622 /2015.
Shri K.N.Pethia, learned counsel for the respondent/National Highway Authority.
Heard counsel for the parties on admission. We are in agreement with the preliminary objection of the respondents that the petitioner has remedy of arbitration proceedings under the Arbitration and Conciliation Act, 1996, in the event, the petitioners are interested in claim of enhancement of compensation amount. The challenge in these petitions is only in relation to the award Annexure P-1 and no other relief has been claimed, in particular, of questioning the action of acquisition itself.
Hence, the petitions are disposed of with liberty to the petitioner, leaving all questions regarding issue of claim for enhancement of compensation open to be decided on its own merits, including the question of 9 limitation.
Interim relief, if any is vacated forthwith. Disposed of accordingly.
W.P.No.18620/2015Shri S.M.Guru, learned counsel for the petitioner. Shri K.N.Pethia, learned counsel for the respondent/ National Highway Authority.
Heard counsel for the parties on admission. This petition takes exception to the order passed by the Commissioner dated 26.12.2014. We agree with the preliminary objection taken by the respondents that the said order was amenable to remedy under the provisions of Section 3G (6) of the National Highways Act, 1956 read with Section 34 of the Arbitration and Conciliation Act, 1996. The petitioner failed to avail of that remedy within the statutory remedy provided in Section 34 (3) of the Act of 1996. In that, the impugned order was passed on 26.12.2014, whereas the writ petition has been filed only on 27.04.2015. Since, the petitioner had remedy under Section 34 of the Act of 1996 and that remedy has become time barred, the petitioner cannot be permitted to adopt 10 circuitous route to challenge the order by way of writ petition.
Hence, dismissed.
W.P.No.18623/2015Shri Manoj Sanghi, learned counsel for the petitioner. Shri Amit Seth, learned Govt. Advocate for the respondents/State.
Shri K.N.Pethia, learned counsel for the respondent/National Highway Authority of India.
Heard counsel for the parties. As short question is involved in this petition, the petition is taken up for final disposal forthwith, by consent. Counsel for the respondents waive notice for final disposal.
By this petition the order passed by the Sub Divisional Officer dated 14.03.2015 (Annexure P-2) has been challenged. That order was passed on the representation made by the petitioners (Annexure P-7) whereby grievance was made that their claim has not been considered and also to apportion the compensation in favour of the petitioners as per their entitlement.
The Sub Divisional Officer, as required by Section 3H (4) of the National Highways Act, 1956, ought to have referred the matter to the Principal Civil Court of original 11 jurisdiction in the District for adjudication. Instead, the Sub Divisional Officer took upon the responsibility to reason out the claim of the petitioner. That is, obviously, in the teeth of the statutory provision. The Sub-Divisional Officer has had no jurisdiction to decide the representation himself. The representation should have been referred by him to the concerned Principal Civil Court of original jurisdiction, if the same was filed within limitation. The fact whether it was filed within limitation is the only question that ought to be addressed by the Sub Divisional Officer.
Accordingly, we set aside the impugned decision and relegate the parties before the Sub Divisional Officer to reprocess the representation Annexure P-7, in accordance with law, expeditiously and communicate the decision taken thereon to the petitioners not later than six weeks from the receipt of copy of this order. All questions in that behalf are left open.
Disposed of accordingly.
Conc. No.420/2016 and Conc. No.459/2016 Shri Amit Seth, learned Govt. Advocate for the respondents/State.
12Shri K.N.Pethia, learned counsel for the respondent/National Highway Authority of India.
As the main writ petitions are disposed of, we decline to initiate contempt action.
Disposed of accordingly.
(A. M. Khanwilkar) (Sanjay Yadav)
Chief Justice Judge
AM.