Himachal Pradesh High Court
Prem Chand Sharma & Others vs Union Of India & Others on 5 September, 2018
Bench: Sanjay Karol, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPs No.374 of 2014 & 3634 of 2015 Reserved on : 24.5.2018 .
Re-heard on : 5.9.2018 Date of Decision : September 5, 2018 CWP No.374/2014 Prem Chand Sharma & others ...Petitioners.
Versus Union of India & others ...Respondents.
CWP No.3634/2015Smt. Vidya Devi & others ...Petitioners.
Versus Union of India & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes. For the Petitioners : Mr. B.C. Negi, Senior Advocate, with Mr. Suneet Goel, Advocate, in CWP No.374 of 2014.
Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate, in CWP No.3634/2015.
For the Respondents : Mr. Rajesh Kumar Sharma, Assistant Solicitor General of India, for the Union of India.
Ms. Jyotsna Rewal Dua, Senior Advocate, with Ms Charu Bhatnagar, Advocate, for the National Highway Authority of India.
Mr. Ashok Sharma, Advocate General, with Mr. Ajay Vaidya, Senior Additional Advocate General; and Ms Rita Goswami, Mr. Adarsh Sharma & Mr. Nand Lal Thakur, Additional Advocates General, for the State.::: Downloaded on - 06/09/2018 22:59:45 :::HCHP
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Sanjay Karol, Acting Chief Justice Since common issues and questions of fact and law are involved, these petitions are being disposed .
of vide common judgment.
2. In CWP No.374 of 2014 (hereinafter referred to as the First Petition), petitioners, who are residents of Kandaghat, District Solan, Himachal Pradesh, have prayed, inter alia, for the following reliefs:
"(i) That this Hon'ble Court may kindly be pleased to issue a Writ of Certiorari quashing undated order Annexure P 9 r passed by the Competent authority rejecting the representations/objections of the petitioners under National Highways Act, 1956, and direct the Competent Authority to pass fresh order on the said objections/representations filed by the petitioners under the provisions of National Highways Act, 1956. This Hon'ble Court may also be pleased to quash by way of issuance of writ of Certioreri subsequent notification dated 11.9.2013 Annexure P 10 issued under Section 3D of the National Highways Act, 1956.
(ii) That this Hon'ble Court may be pleased to direct Respondents to carry out fresh survey of Kandaghat Tehsil Kandaghat District Solan for the purpose of four laning of Parwanoo Shimla National Highway and ensure that the proposed By Pass i.e. Kandaghat By Pass is constructed in a manner which does not results in demolition of the properties of the petitioners situated in Kandaghat, by actually constructing the By pass from ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...3...
from Kilometres 115.200 to Kilometres 118.700 rather than constructing the same in the manner as is being done presently."
.
3. Annexure P-10 (Page-136) is the Notification dated 11.9.2013, issued under Section 3D of the National Highways Act, 1956 (hereinafter referred to as the Act) and Annexure P-9 (Page-134) is the order, rejecting the petitioners' objection with regard thereto.
4. Petitioners in CWP No.3634 of 2015 (hereinafter referred to as the Second Petition), who are residents of Dhalli area, District Shimla, Himachal Pradesh, have prayed, inter alia, for the following reliefs:
"a) That the Respondents may be ordered and directed to consider the claims and objections of the present petitioners as well as all other similarly situated persons hailing from the area in between Kaithlighat to Dhalli and take a fresh decision in the light of submissions made in this Petition and the present proposal and plan for construction of Four Lane road from Kaithlighat to Dhalli through the tunnel and above mentioned villages may kindly be set aside and quashed. They may be directed to produce entire record.
b) That appropriate orders and directions may be issued to the Respondents to afford proper opportunity of hearing to the petitioners and all other similarly situated persons and take a decision for change of survey of four-lanning from Kaithlighat to Shimla and make necessary alterations and modifications so that the main Shimla Town is closely brought on this four-lane road instead of adopting present proposal for the ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...4...
construction of four lane road from Kaithlighat through tunnels via Domechi- Sihunta-Gusan-Shurala-Kamla Nagar (Bhattakuffar) - Chamiana-Dhalli portion.
c) Directions may be issued to the .
Respondents that they should comply with and act upon the prescribed procedure in letter and spirit in the matter of Environment and all other essential factors keeping into consideration the requirements and needs of Tourism, Forest, Defence, Public Utility and should thoroughly examine the scope of reduction of expenditure as involved and also to examine the point of reduction of distance of road through different survey."
Significantly, here the petitioners do not seek quashing of any particular notification under the Act.
5. In effect, in the first Petition, petitioners desire that road be constructed, as per the original proposal, i.e., from Km. 115.200 to Km. 118.700, instead of Km.
116.780 to Km. 118.130 on the portion commonly known as 'Kandaghat Bypass', so as to save the existing structures owned and possessed by several owners, whereas in the Second Petition, petitioners seek total realignment of the road to avoid demolition of 146 houses on the portion commonly known as 'Kaithlighat-
Dhalli Bypass Road', with a suggestion to construct the existing highway, crossing through Shoghi-Tara Devi-Tuti Kandi Bypass, as a four-lane highway.
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6. For the purpose of convenience, we discuss the facts, emanating from the first petition. On 27.2.2013, Ministry of Road Transport and Highways, New .
Delhi, issued Notification, under Section 3A of the Act, proposing to widen as four-lane, the existing National Highway 22 (NH-22) for the section commonly known as 'Solan to Shimla', falling within the range of Km. 106.000 to Km. 131.000. In April, 2013, villagers, including the petitioners, filed objections thereto, inter alia, suggesting
(a) that width of the road be reduced from 45 metres to 30 metres, just as it was so done in the sector from Parwanoo to Solan, (b) road Kandaghat Bypass be realigned, so as to save the existing structures, (c) in any event, a fresh alignment be carried out on the Chambaghat-Kaithlighat sector, so as to avoid the road passing through a busy area.
7. Pursuant thereto, in the month of April, 2013 itself, a meeting took place amongst the officials and the villagers. Also in the month of May, 2013, the site was re-
inspected, and after considering all objections, on 11.9.2013, Notification, under Section 3D of the Act, was published.
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8. Quite apparently, most of the objections raised by the petitioners, were rejected on 25.7.2013, with the Authority deciding to carry out the work of four-
.
laning of Kandaghat Bypass from Km. 116.780 to Km.118.130 instead of Km.115.200 to Km.118.700.
9. Before this Court, Mr. G.D. Verma and Mr. B.C. Negi, learned Senior Advocates, lay challenge to the actions of the respondents on the following grounds:
(1)r to Action in widening the road is ex-facie illegal for no clearances/permissions stand obtained from (i) local Panchayat,
(ii) Department of Wild Life/ Forest, (c) State Pollution Control Board.
(2) Construction of the proposed road (i) would cause immense loss to (a) flora and fauna, (b) entire ecology, (ii) equally, heritage character of the topography would be damaged, (iii) would adversely affect tourism and lastly (iv) no re- habilitation scheme stands proposed for the benefit of aggrieved parties, for the compensation awarded is grossly inadequate.
10. On the other hand, opposing such submissions, Ms Jyotsna Rewal Dua, learned Senior Advocate, has argued that (a) objections of the ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...7...
petitioners were squarely dealt with, in accordance with law, (b) construction activity is being carried out squarely in terms and under the provisions of the Act and more .
specifically after obtaining environmental clearance, despite there being no requirement with thereto, under the Act.
11. Certain facts are not in dispute. In relation to widening of Solan-Kaithlighat road, Notification under Section 3D of the Act already stands issued. Status, with regard to acquisition of land on this sector, as on May, 2018, was as under:
i Total land required 110.93 hect. ii Total Private land to be 34.41 hect.
acquired
iii 3(A) Notified 34.41 Hect
iv 3(D) Notified 32.78 hect
[notification for
1.63 Hect
submitted to
NHAI Hq]
v 3(G) Announced 31.32 hect.
vi Amount of award Rs432.75 Crs,
deposited till date
vii Disbursement by CALA Rs.340 Cr
Also, work stands allotted to a contractor, vide
communication dated 28.3.2018, in relation to which Agreement dated 11.4.2018 is executed. Total cost of the Project is `598 Crores. Out of km. 106.000 to km.::: Downloaded on - 06/09/2018 22:59:45 :::HCHP
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131.000 of length of the road, subject matter of the present petition is just 1.3 kms. (approximately).
12. Status of acquisition of land, in relation to .
four-laning of Shimla Bypass Section from Kaithlighat to Dhalli, is as under:
Sl Particulars In Solan In Shimla Total in Both no Dist Dist Districts i Total land required 4.6872 125.92 130.62 Ha Ha [Pvt Ha land] [40.30 Forest land + 85.62 Pvt r Land] ii Total Private land 4.6872 85.62 Ha 90.3072 Ha to be acquired Ha Forest Land - 40.30 Ha 40.30 Ha iv 3(D) Notified 4.6872 69.1107 73.7979 v 3(G) Notified 4.6872 69.1107 73.7979 vi Amount of award 38 Crs 567.20 605.20 Crs deposited till date Crs vii Disbursement by 34 450 484 Crs CALA
13. Even for this sector work stands allotted and the same is in progress.
14. At this juncture, we may take note of certain statutory provisions. The Act was enacted to provide for declaration of certain highways to be the national highways and for matters connected therewith. It's a Central Legislation enacted pursuant to Entry-23 of List-I of the Constitution of India. By virtue of Section 3A, ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...9...
wherever the Central Government is satisfied that for a public purpose, any building/land is required for operation of the National Highway, it may declare its intent to .
acquire the same. Pursuant thereto, by virtue of Section 3B, person authorized by the Central Government is empowered to inspect the said land/building. Keeping in view the principles of natural justice, by virtue of Section 3C, the owner of such building/land has a right to file objections. With the same being considered, the Central Government is empowered to issue Notification, declaring acquisition of the land as per Section 3D and pursuant thereto, take possession in terms of Section 3E. It is not that no compensation is required to be paid to the owners. Such right vests under the Act and by virtue of Section 3G the amount of compensation is required to be determined by the competent authority and paid to the owner. The amount, so determined, by virtue of Section 3H, is to be deposited with the competent authority, who is duty bound to disburse the same to the rightful claimants/owners. All National Highways are to vest with the Union of India and the Central Government is duty bound to properly maintain the same.
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15. Coming to the contentions raised by the learned counsel, we must, firstly, deal with the issue of non-obtaining of statutory permissions under the .
Environmental Laws of the land.
16. Hence, we must straightway refer to the Notification dated 22.8.2013 (Page-252), in terms of which projects for expansion/widening of National Highways upto the required limit within which the instant the Project r Proponent project falls. Such fact is not in dispute. We notice that has obtained clearances from the Himachal Pradesh State Pollution environmental Control Board, vide communications dated 28.1.2013 and 24.1.2013 (Pages 264 & 266) and the Ministry of Environment and Forests, Government of India, dated 30.8.2013 (Page 255). No other clearances are required in law.
17. We notice that objections of the petitioners, filed under Section 3A of the Act, were duly examined, and rejected with due application of mind. The Authority did comply with the procedure prescribed under Section 3C of the Act and only whereafter, declaration of acquisition of land under Section 3D was issued.
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18. To satisfy our conscience, we called for the record for ascertaining as to whether houses/structures of the petitioners could be saved with a minor adjustment or .
realignment of the project i.e. expansion of the national Highway. We are of the considered view that it cannot be so done, more so for the reason that decision to implement the project on the basis of latest alignment of the track/road is based on objective assessment of the material collected by the experts and it is the body of experts who took such a decision, in public interest, to construct the road from Km. 116.780 to Km. 118.130, instead of Km. 115.200 to Km. 118.700, for if the road were to be constructed as per the original proposal, it would entail huge expense. Also following facts stand considered (a) minimize the loss and the damage to the environment, (b) minimize the cost of construction, (c) account for the geographical locations and local topography, including maintaining gradual gradient, and
(d) prevent the road to be taken through deep gorges.
19. Petitioners, possibly cannot, in fact have not alleged any bias or malafides. Also, there is no material on record to rebut the collective wisdom of a body of experts, indicating viability of an alternate route, ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...12...
accounting for all the factors, so considered, while forming final opinion with regard to the situs of the road in terms of latest alignment.
.
20. We may observe that even though there is no averment of malice in fact or law against anyone of the persons, muchless the respondents, impleaded herein, but even otherwise on this issue, the Apex Court in Girias Investment Private Limited & another v. State of Karnataka & others, (2008) 7 SCC 53, has observed that "There can be two ways by which a case of malafides can be made out; one that the action which is impugned has been taken with the specific object of damaging the interest of the party and, secondly, such action is aimed at helping some party which results in damage to the party alleging malafides."
Which in the instant case, we find to be none in existence.
21. Further dealing with similar facts, the Apex Court in Kushala Shetty (supra) has observed that "25. The plea of the respondents that alignment of the proposed widening of National Highways was manipulated to suit the vested interests sounds attractive but lacks substance and merits rejection because except making a bald assertion, the respondents have neither given particulars of the persons sought to be favoured nor placed any material to prima facie prove that the execution of ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...13...
the project of widening the National Highways is actuated by mala fides and, in the absence of proper pleadings and material, neither the High Court could nor this Court can make a roving enquiry to fish out some material and draw a dubious conclusion that the decision and actions .
of the appellants are tainted by mala fides."
22. Petitioners have placed on record a Chart (Page-329), indicating comparative disadvantages of the Kandaghat Bypass, highlighting that though road was to be constructed as per Option No.3, but in fact at the ground level, is being so done as per Option No.2.
23. This r fact stands refuted by the Project Proponent, vide affidavit dated 25.7.2017 (Page 332), inter alia, stating that whilst most of the claimants have received their compensation, though road is being constructed as per Option No.3, but the length stands reduced from Km.115.200-118.700 to Km.116.780- 118.130. This reduction to the extent of 1.360 km. is in consonance with the permissions accorded by the statutory authorities. Necessity for realigning and reducing the length of the road was only to minimize the damage to public property and protect the "World Heritage Kalka-Shimla Railway Track". What is also stated is that property of the petitioners is situate at around Km.117, hence, it would really not matter as to ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...14...
whether the road commenced from Km.115.200 or Km.116.780, for the said property, falls within the alignment of the road leading upto Km.118.700.
.
24. Hence, we see no reason to interfere in the said sector.
25. Petitioners in the Second Petition emphasize that widening of the existing road, instead of the proposed new road, would immensely benefit the commuters, r taking advantage utility, i.e. Bus Stand, etc. of the infrastructure, including the markets, places of public Also, it would reduce or existing minimize the commercial value and utility of the already developed localities.
26. Well, diminishing value of the property cannot be a ground for challenging construction of a road from another area. And public convenience is a factor which stands considered by the respondents. We also notice that on the Kaithlighat-Dhalli Bypass sector, decision to construct a road through new site was based upon several factors, including intent to decongest the track through the existing settlements, also leading to the international borders of India on the Tibet sector. At this ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...15...
juncture, we may also observe that work for construction of the road already stands allotted and is in progress.
27. We are of the considered view that .
Notification, acquiring the land/superstructure, and endeavour to take over possession thereof, is only after proper and complete examination of the material collected and collated by the experts. In fact, such decision is that of the experts, considering the technical feasibility of construction from all angles, resultant damage to property, disturbance to the public, safety of road users, geometrics of the road, etc. Proposal mooted by the petitioners, according to the respondents, is technically not feasible. We find no fault in that regard.
28. It is not that petitioners are deprived of compensation, which stands determined in accordance with law, and if anyone of them is aggrieved thereof, they can resort to statutory remedy, which in any case, is not subject matter of challenge before this Court, nor is any particular fact pleaded with respect thereto.
29. We notice that the Act does not envisage rehabilitation of such of those persons whose property, in the shape of superstructure, stands acquired, for under sub-section (7) of Section 3G, factor for determining ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...16...
compensation stands specified. In any event, at the cost of repetition, we clarify, it shall be open for any one of the aggrieved persons to take recourse to such remedies, .
which they are otherwise entitled to, in accordance with law.
30. Reliance on Rameshwar & others v. Jot Ram & another, (1976) 1 SCC 194, in the given facts, is of no consequence, for we do not find the action of the respondents to be illegal, warranting necessity of passing an order with regard to existence of the status as on the date of filing of the petitions.
31. The Apex Court in Ramniklal N. Bhutta & another v. State of Maharashtra & others, (1997) 1 SCC 134, in almost similar circumstances, wherein land stood acquired for a public purpose, prescribed certain guidelines to be followed by the Court in interfering with the process of acquisition of land for a public purpose.
They being - (a) exercise of power under Article 226 of the Constitution of India being discretionary in nature, (b) which must be exercised only in furtherance of interest of justice and not merely for making out a legal point, (c) public interest must outweigh private interest, (d) wherever the Court finds acquisition to be "vitiated on ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...17...
account of non-compliance with some legal requirement", which the persons interested are entitled to, it can award damages, on lump sum basis, instead of quashing the .
acquisition proceedings, (e) for quashing of acquisition is not only the mode of redress, (f) balancing of competing interests, must be kept in mind.
32. The grounds can be multiplied, but it is also a settled principle of law that only in the rarest of rare
33.
r to cases, where the action is ex-facie illegal and tainted with malafides, should the Court interfere.
The Courts are neither experts nor do they have expertise to adjudge suitability of alignment of a road, which is best left to be decided by the body of experts. {Subhashgir Khushalgir Gosavi & others v.
Special Land Acquisition Officer & others, (1996) 8 SCC 282}.
34. The Apex Court in Union of India v. Kushala Shetty & others, (2011) 12 SCC 69, has observed as under:
"28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...18...
experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by .
experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex- facie contrary to the mandate of law or tainted due to mala fides."
r Emphasis supplied.
35. Right of filing objections under the Act is restricted and limited to the right of a claimant whose land stands acquired under the provisions of the Act.
Right under the Act is restricted only to the use of the land for the purpose, unlike a general right conferred under the Land Acquisition Act. {Competent Authority v.
Barangore Jute Factory & others, (2005) 13 SCC 477 (Para-8)}.
36. In the instant case, we do not find any possibility of the petitioners' land being excluded from the process of acquisition. Such land is necessarily required for the public purpose, which stands acquired with the completion of all formalities. It is true that the ::: Downloaded on - 06/09/2018 22:59:45 :::HCHP ...19...
order, rejecting the objections, does not assign any reason, but then we do not interfere with such action only on this ground, for we have satisfied ourselves with .
regard to sufficiency of the material on record.
37. It is true that the severity of pain of displacement is experienced only by the displaced person, as even after rehabilitation or resettlement at another place or colony, an oustee/displaced person is perceived to be an psychological r effect alien of for generations.
displacement compensated in terms of money. However, at the same cannot Socio be time it is also a hard fact that in larger public interest and for the purpose of betterment of the society and development of the nation, private interests have to give way to larger public interest.
Hence, we find no merit in the present petitions, which are hereby dismissed.
( Sanjay Karol ), Acting Chief Justice.
( Vivek Singh Thakur ),
September 5, 2018(sd) Judge.
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