Khedut Hit Rakshak Samiti & 134 vs National Highway Authority Of India & ... on 10 March, 2015

[Cites 41, Cited by 0]

Gujarat High Court

Khedut Hit Rakshak Samiti & 134 vs National Highway Authority Of India & ... on 10 March, 2015

Equivalent citations: AIR 2015 (NOC) 1057 (GUJ.), 2015 AIR CC 1875 (GUJ) (2015) 3 GUJ LR 2131, (2015) 3 GUJ LR 2131

Author: Anant S.Dave

Bench: Anant S. Dave, Mohinder Pal

       C/WPPIL/283/2013                                    CAV JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                     WRIT PETITION (PIL) NO. 283 of 2013



FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE ANANT S. DAVE


and


HONOURABLE MR.JUSTICE MOHINDER PAL

================================================================

1     Whether Reporters of Local Papers may be allowed to see
      the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law as
      to the interpretation of the Constitution of India or any order
      made thereunder ?

================================================================
           KHEDUT HIT RAKSHAK SAMITI & 134....Applicant(s)
                            Versus
       NATIONAL HIGHWAY AUTHORITY OF INDIA & 6....Opponent(s)
================================================================
Appearance:
MR BM MANGUKIYA, ADVOCATE for the Applicant(s) No.1-108.1 , 109-135
MS BELA A PRAJAPATI, ADVOCATE for Applicant(s) No.1-108.1, 109-135
MR JK SHAH APP for the Opponent(s) No. 3 - 4
MR DEVANG VYAS, ASG for the Opponent(s) No. 7
MR MIHIR JOSHI Senior Advocate with MR MAULIK G NANAVATI,
ADVOCATE for the Opponent(s) No. 2



                                  Page 1 of 70
      C/WPPIL/283/2013                             CAV JUDGMENT



================================================================

        CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
               and
               HONOURABLE MR.JUSTICE MOHINDER PAL

                         Date : 10/03/2015



                         CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) This petition under Article 226 of the Constitution of India is filed by the petitioner challenging the action of respondent No.1 - National Highway Authority of India [for short, NHAI'] and other authorities viz. respondent Nos. 2 to 4 of acquiring land of petitioner Nos.2 to 135, who are agriculturists and occupying subject lands. The petitioner No.1 is an unregistered Association in the name and style of `Khedut Hit Rakshak Samiti' representing all petitioners, who are not well informed and unable to ventilate their grievances, and therefore, on their behalf and interest extraordinary jurisdiction of this Court is invoked under Article 226 of the Constitution of India. Initially, considering the statement at page 11 of the writ petition that the petition is semiPIL, by order dated 23.10.2013 the matter was ordered to be listed before appropriate Bench taking PIL cases and accordingly this petition is treated as Writ Petition / PIL.

2 The petitioners have made following prayers:

Page 2 of 70 C/WPPIL/283/2013 CAV JUDGMENT

"[A] Be pleased to admit this petition.

[AA] Be pleased to issue a writ in the nature of mandamus and;or any other appropriate writ, order or direction in the nature of mandamus, and to quash and set aside the impugned Award recorded by the respondent dated July 18, 2014 - ANNEXUREEE.

[B] Be pleased to issue a writ of mandamus and/or any other appropriate writ order or direction in the nature of mandamus, and to quash and set aside the impugned order dated July 08, 2013 to July 12, 2013, recorded by the competent authority - Special Land Acquisition Officer and consequent notification issued by the respondent dated August 06, 2013 for acquisition of land of the petitioners and others for laying down of by pass on the National Highway No.8D which commences from 23.00 km. to 43.05 km. Of the State National Highway No.8D leading from Somnath.

[BB] Pending hearing and final disposal of this petition, be pleased to stay the implementation, execution and operation of the impugned Award recorded by the respondent dated July 18, 2014 - AnnexureEE.

[C] Pending admission and final disposal of the present petition, this Hon'ble Court be pleased Page 3 of 70 C/WPPIL/283/2013 CAV JUDGMENT to stay the implementation, execution and operation of the impugned order dated July 08, 2013 to July 12, 2013 recorded by the Special Land Acquisition Officer and the consequent notification dated August 06, 2013 and be further pleased to direct the respondents, their agents and servants that they shall not take any steps to forcibly or otherwise enter in the lands of the petitioner and/or to disturb the possession of the said pieces of land, in any manner whatsoever".

3 According to the petitioners following is the factual matrix of the subject dispute:

3.1 The Government of India through its Ministry of Roads and Highways contemplated to enhance the traffic capacity and safety for the efficient transshipment of the goods as well as passengers traffics of few of the selected heavily traffic stretch or corridor of the National Highway which was sought to be implemented on the basis of Design, Build, Finance and Operate Project. The project of developing national highway 8D from the junction of national highway 8B and national highway 8D near Jetpur town upto Somnath Temple was envisaged for laying down National Highway of four lane. The total length of the said corridor is of approximately 127 kms. One M/s. Reassociate South Asia Private Limited, New Delhi (hereinafter referred to as "the Consultant"

for short) was appointed to prepare a technical Page 4 of 70 C/WPPIL/283/2013 CAV JUDGMENT feasibility report. As per the procedure followed by the Central Government and National Highway Authority, before submitting final report by the Consultant, the Environmental Impact Assessment Report (hereinafter referred to as "EIA Report" for short) is first prepared by the consultant, then same is placed for general opinion / objection of the public on its website and thereafter environmental clearance hearing takes place. AS per the information submitted at the relevant point of time, the Consultant proposed two options i.e. option nos.1 and 2. The option no.2 has been shown in the redline and option no.1 has been shown in green line. The option no.1 which was suggested for expansion of the existing bypass. The option no.1 suggested crossing of railway line at two places. The option no.2 avoided crossing of the railway line.

3.2 As directed by the Central Government, before the intention is declared for acquisition of land for laying down of the proposed highway, the environmental clearance is required. The said clearance is given only after public hearing. The public hearing was fixed on January 05, 2010. The hearing was attended by Mr. A.M. Parmar, District Magistrate and Collector; Mr. Mehul Bhatt, Manager National Highway Authority of India; Mr. H.K. Bhatt, DGMcumProject Director; Dr. S.D. Badrinath, the representative of Consultant. The said hearing was presided over by Mr. G.M. Sadhu, Regional Officer, Gujarat Pollution Control Board. 15 representations Page 5 of 70 C/WPPIL/283/2013 CAV JUDGMENT have been made in the said public hearing which was held for the environmental clearance only. The suggestions have been made by various persons. However, the final conclusions were given by Mr. Parmar, District Magistrate and Collector, which states that the proposed bypass should be at the distance from the existing bypass. The alignment should be fixed so as to see that the minimum land is used for laying down of the new and proposed bypass. The care should be taken for the passage of the storm water and no obstruction should be created from natural course of water. There should be sufficient plantation and the last suggestion was that Project should be implemented so as to see that minimum damage is done to the farmers.

3.3 In the meeting which was held on January 05, 2010 there is no third option either proposed, considered or approved by the experts of the subject as stated before this Court. That false statement is made by the respondents. The contentions raised before this Court by the respondents now is that the third option is suggested by a body of expert which met on January 05, 2010 and third option has been approved and it is implemented.

3.4 That after the said environment clearance consultant meeting, the environmental impact and environmental management plan was published. In Volume 3 of the said report in para 5.4.2 it has been clearly stated that by virtue of the advertisements dated Page 6 of 70 C/WPPIL/283/2013 CAV JUDGMENT December 03, 2009 and December 04, 2009, public hearing was fixed on January 05, 2010 (seek 2009). The conclusion has been given in para 5.5 which suggests that there was no object of the proposed laying down of the bypass in Junagadh town though the farmers are marginal, they demanded adequate compensation.

3.5 That in the public hearing held on January 05, 2010, Mr. Vitthalbhai Radadiya, Member of Parliament was not present, however, having learnt the proposed alignment which was required the acquisition of his property, for the first time wrote a letter dated March 02, 2010; Mr. Mohanlal Patel, Ex M.P. wrote a letter on January 07, 2010 and late Mrs. Bhavnaben Chikhaliya, ExM.P. also wrote a letter on January 23, 2010.

3.6 That the Central Government in exercise of the powers under Section 3A of the Act, issued the notification dated January 01, 2010, declaring its intention to acquire lands for laying down of a National Highway 8D at junction of 12.9 kms. to 127 kms. in Junagadh section. The lands of the village Koyli and Shapur were proposed to be acquired. There was no intention of the Central Government to acquire land of the present petitioner at that point of time. The satisfaction has been recorded by the Central Government under section 3A of the Act to acquire land for expansion of the national highway i.e. bypass at Junagadh having stretch of 7.9 kms.

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4. It is further the case of the petitioner that joint survey of the proposed land was carried out and proposed alignment was cleared from all obstructions and number of trees were cut off. That proceedings as contemplated under Section 3A, 3B and 3C of the National Highways Act, 1956 [for short, 'the NH Act, 1956'] were completed. That objections raised by aggrieved farmer owners and in occupation of the lands sought to be acquired also came to be rejected. Even third option according to Expert Consultant was not viable and expensive than earlier one which would cost 107 crores as per present estimate against earlier estimate cost of Rs.39 crores for option No.2, action is taken by the NHAI only at the behest of private respondents, who are Member of Parliaments, ExMember of Parliaments and politically influential persons. It is categorically stated that socalled hearing to the objections is an eye wash and it is a case of nonapplication of mind and violative of principles of natural justice and number of decisions of the Apex Court relied upon by the learned counsel for the petitioner.

[1] In the case of Women Education Trust Vs. State of Haryana reported in (2013) 8 SCC 99 [2] In case of Usha Stad and Agricultural Farm Private Limited Vs. State of Haryana reported in (2013) 4 SCC page 210.

[3] In case of Hukamchand Vs. State of Haryana Page 8 of 70 C/WPPIL/283/2013 CAV JUDGMENT reported in (2013) 11 SCC page 578.

[4] In case of Surendrasing Brar Vs. Union of India reported in (2013) 1 SCC page 403.

[5] In the case of Kamal Trading Pvt. Ltd. Vs. State of West Bengal reported in (2012) 2 SCC page 25.

[6] In the case of Raghubirsing Shehravali Vs. State of Haryana reported in (2012) 1 SCC page 792.

[7] In case of Hindustan Petroleum Corporation Limited Vs. Dairus Shapur Chenai reported in (2005) 7 SCC page 627.

[8] In case of Gurbandarcor Brar Vs. Union of India reported in (2013) 11 SCC page 228 4.1 All the above decisions have geneses under provisions of Land Acquisition Act, 1894.

4.2 Thus, according to learned counsel for the petitioner, the whole procedure undertaken by the respondent No.1 and other government authorities in publication of notification at different stages of Act, 1956 is unjust, unreasonable arbitrary, discriminatory and colourable exercise of powers and issued with malafide intention to favour only private respondents depriving valuable cultivable lands belonging to the petitioners, which is the only source of livelihood of their families. Therefore, the Page 9 of 70 C/WPPIL/283/2013 CAV JUDGMENT actions impugned in this petition, as reflected in the prayer clause, is violative of Articles 14 , 19 and 21 of the Constitution of India and Notification No.S.O.1878(E) dated 17.08.2012 along with orders dated 08.07.2013 and 21.07.2013 passed by Special Land Acquisition Officer and consequential Notification dated 06.08.2013 issued by respondent No.1 and award dated 18.07.2014 are required to be quashed and set aside.

5 As against the above, Shri Mihir Joshi, learned Senior Advocate appearing with Mr. Maulik Nanavati for respondent No.1 would contend as under:

5.1 The contention of the petitioner that the alignment of the bypass road has been changed by the Authority / Government at the behest of some political leaders, is false. He submits that there has been no change in the alignment. He contends that the alignment that was fixed by the authority fell for consideration in the earlier writ petition, being Special Civil Application No.10826 of 2011. In the said writ petition, a specific contention was raised by the petitioner that the alignment had been changed by the authority at the behest of some political leaders and that such change would cause monetary loss to the public exchequer. In support of his submission he has relied upon the averments made in the reply affidavit, which reads as under:

"4. I say that Notification No. S.O 2390(E) Page 10 of 70 C/WPPIL/283/2013 CAV JUDGMENT dated 06.08.2013 issued under Section 3D of the Act (impugned notification) was preceded by Notification No. S.O 1879(E) dated 17.08.2012 issued under Section 3A of the Act of 1956. I say that Notification No. S.O 1879(E) dated 17.08.2012 issued under Section 3A of the Act mentioned the parcels of lands which were intended to be acquired by the Central Government for the public purpose of building (widening/six laning, etc.), maintenance, management and operation of National Highway No. 8D on the stretch of land from Km. 12.9000 to Km. 127.000 (Junagadh Section) in District Junagadh in the State of Gujarat. Prior to the publication of Notification No. SO 1879(E) dated 17.08.2012, the Central Government had issued Notification No. S.O 2594(E) dated 19.10.2010 under Section 3A of the Act of 1956 declaring its intention to acquire lands falling on the same alignment of the Project Highway.

5. I say that Notification No. 2594(E) dated 19.10.2010 issued under Section 3A of the Act of 1956 was challenged before this Hon'ble Court in Special Civil Application No. 10826 of 2011 filed by Shri Mansukhbhai Kalyanbhai Chovatiya and others.

5.1 The said petition was filed challenging, "the legality, validity and propriety of the action on the part of the respondents in Page 11 of 70 C/WPPIL/283/2013 CAV JUDGMENT taking a decision to acquire the lands through which a new Jetpur - Veraval bypass is to be laid down and constructed". It was the case of the petitioners in the said petition that "there already exists a bypass, which bypasses Junagadh and instead of expanding the said existing bypass a new bypass is sought to be laid down and constructed on the peril of the present petitioners". It was alleged that "this action on the part of the respondents is arbitrary, without application of mind, in colorable exercise of power, at the behest of certain influential persons holding land on the existing bypass and is therefore illegal and unconstitutional".

5.2 Some paragraphs containing averments made in the memo of petition, grounds urged in support of the prayer and relief sought in the said petition - in so far as the deponent deems them to be relevant for the adjudication of some issues raised in the present petition are reproduced hereinbelow:

Paragraph 18E of the memo of petition:

"The Petitioners state that the decision of the respondent authority to acquire the lands of the petitioners for the purposes of construction of a new bypass is based on Page 12 of 70 C/WPPIL/283/2013 CAV JUDGMENT irrelevant considerations alien to the provisions of the Act. furthermore the authority has abdicated the discretion vested to it under law and has proceeded to act on the basis of the representation of the Member of Parliament."

Grounds urged:

"c. It is submitted that the decision to change the alignment of the Highway suffers from vice of non consideration of relevant factors. It is submitted that there was no material in the nature of project report/feasibility report regarding the revised alignment of the highway. Such reports form the basis/rationale to enable the authority to arrive at a decision. Non existence thereof clearly indicates that the decision is based without considering the relevant factors.

d. It is submitted that the competent authority has in fact abdicated his discretion and has acted at the instance of the Member of Parliament and certain influential persons. The said fact is amply evident from the repeated reference made in the notings as well as in the final proposal where Page 13 of 70 C/WPPIL/283/2013 CAV JUDGMENT after recording that the original alignment is feasible it is proposed that the same be changed considering the representation of the MP since it is futuristic. It is well settled that discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case (2003(4) SCC 579).

e. It is submitted that the impugned action is ex facie unreasonable and irrational. It is submitted that there is an existing two lane bypass. Instead of expanding the said two lane bypass (which proposal was approved and found to be feasible), the decision has been taken to construct a completely new highway just 1.25 km away from the existing highway. The cost of construction is estimated to be 15 crores more than the cost of expansion. The expansion would essentially acquire the margin lands. There cannot be any material change in the traffic conditions since the proposed highway is only 1.25 km away from the existing Page 14 of 70 C/WPPIL/283/2013 CAV JUDGMENT highway. In contrast by virtue of the proposed acquisition (1) many of the farm lands would become uncultivable since the irrigation wells are being acquired (2) many farmers would loose their status as agriculturist (3) many of the agriculture lands would become fragments. It would thus destroy the very existence of the petitioners before the Court. It is submitted that the decision does not meet with the touchstone of Wednesbury reasonableness and is therefore illegal and unconstitutional."

"q. It is submitted that the expenses of acquisition for the new road would be mammoth as compared to the earlier acquisition which would taken place on the existing bypass road and the approximate expenses of Rs.15 crores, being the first earmarked expenses for the acquisition which would be a huge burden on the respondents."

Some of the reliefs sought for by the petitioners therein in the prayer clause:

[B] Your Lordship may be pleased to hold and declare the action of the Respondent Authority in dropping the Page 15 of 70 C/WPPIL/283/2013 CAV JUDGMENT approved alignment of expansion of the existing JetpurVeraval, two lane bypass as arbitrary, illegal and unconstitutional.

[C] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by quashing and setting aside the impugned notification dated 19th October, 2010."

5.2 Mr. Mihir Joshi, learned Senior Advocate, further submits that the present petitioner had also preferred a writ petition being Special Civil Application No.14237 of 2011 challenging notification No.S.O.2594[E] dated 19.10.2010, which notification was also under challenge in Special Civil Application No.10826 of 2011. He has invited attention of this Court inter alia to paragraph Nos.26.1, 26.2, 27 and 28 of judgment delivered by the Division Bench in Special Civil Application No.10826 of 2011. He has further invited our attention to the order dated 23.01.2012 passed in Special Civil Application No.14237 of 2011 and has contended that the petitioner having permitted his petition to be disposed of in terms of the judgment delivered in Special Civil Application No. 10826 of 2011 cannot be permitted to contend that the said judgment had been obtained by collusion or that the said judgment is bad in law and Page 16 of 70 C/WPPIL/283/2013 CAV JUDGMENT on facts. It is further submitted that the legality or propriety of the judgment delivered by a co ordinate Bench of equal strength cannot be questioned or assailed in the present petition, more particularly, when the petitioner has derived benefit out of the said judgment.

5.3 Mr. Mihir Joshi, learned Senior Advocate has drawn our attention to the notification No.S.O.2594[E] dated 19.10.2010 and the notification No.S.O.1879[E] dated 17.08.2012 - both issued under Section 3A of the Act, NH Act, 1956 and has submitted that the lands, which were notified for acquisition in 2012, fell for consideration before this Court are the very same lands which have now been acquired.

5.4 It is further submitted that pending the petition the competent authority has after following due procedure determined the amount of compensation and the award for some of the villages falling on the alignment of the bypass road has been declared by the competent authority and, therefore, this Court should not entertain this petition.

5.5 Insofar as the contention of the petitioner that the objections raised by the petitioners were not properly considered by the competent authority, Mr. Joshi has relied upon the observations made by the Apex Court in the case of Competent Authority vs. Barangore Jute Factory, reported in 2005 (13) SCC 477 that, "unlike Section 5A of the Land Acquisition Act, Page 17 of 70 C/WPPIL/283/2013 CAV JUDGMENT 1894 which confers a general right to object to acquisition of land, under Section 4 of the said Act and Section 3C(1) of the National Highways Act, which gives a very limited right to object. The objection can be only to the use of the land under acquisition for purposes other than those under subsection 3a (1). The Act confers no right to object to acquisition as such. He has invited our attention to the objections, made individually as well as collectively by the petitioners and other land owners show and submitted that the principal objection was to the alignment - it having been changed at the behest of some local politicians, increased cost of the project and the hardship that would be suffered by the land owners because of such acquisition. None of the objections mention, even remotely, about non requirement of the land for building, maintenance, management or operation of the national highway. Reliance is also placed on the decision of the Apex Court in the case of Union of India v. Kushala Shetty reported in 2011(12) SCC 69.

5.6 Mr. Joshi, learned Senior Advocate for the respondent No.1 has invited our attention to object, reasons and scheme of the Act, 1894 and the NH Act, 1956 and contended that both the Acts are completely different. He pointed out that Section 4 of the Act, 1894 pertains to publication of preliminary notification and powers of officers thereupon, whereby, whenever it appears to the appropriate Government that land is likely to be needed for any Page 18 of 70 C/WPPIL/283/2013 CAV JUDGMENT public purpose, by issuing a notification in the official gazette and two daily newspapers of which at least one shall in the regional language, the Collector is authorized to give public notice. Other procedure is provided about payment of damages under Section 5 and hearing of objections under Section 5A of the Act and thereafter under Section 6 declaration that the land is required for a public purpose is not to be made again by following the procedure.

5.7 It is further submitted that as against the above, Section 3A of the NH Act, 1956 confers power to acquire land upon satisfaction of the Central Government that such land is required for a public purpose viz. for building, maintenance, management or operation of a national highway or part thereof, by public notification in the official gazette its intention to acquire such land. The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. Thus, there is a difference between language of Section 4 of the Act, 1894 and Section 3A of the NH Act, 1956 as Section 4 begins with word "wherever" while Section 3A of the NH Act, 1956 envisage satisfaction of the Government and acquiring the land for different purposes. Even the scope and ambit of hearing of objections under both the Acts is vastly different. Whereas, under Section 5A of the Act, 1896 the purpose for which the land is proposed to be acquired is open for examination by the Special Land Acquisition Page 19 of 70 C/WPPIL/283/2013 CAV JUDGMENT Officer under Section 3C of Act, 1956, the scope is very limited and restricted only to the use of the land for the purpose mentioned in Section 3A. It is also submitted that Sections 3D, 3E, 3F and 3G of the Act, 1956 provide complete mechanism different than Act, 1894. In the facts of the case, the land shall vest absolutely in the Central Government and even award is also passed under Section 3G of the Act, 1956, and therefore, such belated challenge to the action of NHAI under Sections 3D and 3G by the petitioners is delayed and resulted into great prejudice to the authority which has acquired land for public purpose. It is also submitted that proper hearing is given to all objectors and thereafter order is passed by the competent authority and by authorized officer and there is a limited scope of judicial review in the case of acquisition of land by the authority under the Act, 1956 when procedure laid down therein is fully complied with. It is, therefore, submitted that this petition not only suffers from delay and laches but is also barred by res judicata to the extent that very issue of the said petition is already decided by the Division Bench of this Court earlier qua the very land in question raising similar grounds, which came to be negated. Even the petitioners herein also invoked writ jurisdiction of this Court under Article 226 of the Constitution of India and accepted the reasons of the disposal of writ petition filed by similarly situated agriculturists and thus, they have acquiesced themselves by accepting earlier order and now it is not open for them to Page 20 of 70 C/WPPIL/283/2013 CAV JUDGMENT challenge action of NHAI by issuing baseless and irrelevant grounds. While disposing of the writ petition filed by the petitioners, only avenue which was kept open by the Division Bench was to give them an option of raising objection and nothing beyond that and accordingly this petition deserves to be dismissed. Learned Senior Advocate appearing for the respondents placed reliance on following two decisions:

[1] In the case of Union of India v. Kushala Shetty & Ors. reported in (2011) 12 SCC 69.

[2] In the case of Competent Authority v. Barangore Jute Factory & Ors. reported in (2005) 13 SCC

477. 5.8 He, therefore, submitted that the reasons given by the Competent Authority for rejecting the objections raised by him are just and proper as it is not within his province to sit in appeal on the issue of alignment, more particularly, after the correctness and propriety thereof has been upheld by the High Court.

6 Heard learned learned counsels for the parties and perused the record of the case.

6.1 Before adverting to the rival contentions raised by the learned counsel for the parties, for the purpose of deciding the issue involved in the Page 21 of 70 C/WPPIL/283/2013 CAV JUDGMENT petition, important provisions of Land Acquisition Act, 1894, The National Highways Act, 1956 and The National Highways Act, 1988, are reproduced hereunder:

Land Acquisition Act, 1894 Section 4. Publication of preliminary notification and power of officers thereupon [1] Whenever it appears to the appropriate Government the land in any locality is needed or] is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice , being hereinafter referred to as the date of the publication of the notification.

[2] Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workman, to enter upon and survey and take levels of any land in such locality;

Page 22 of 70 C/WPPIL/283/2013 CAV JUDGMENT

to dig or bore into the subsoil;

to do all other acts necessary to ascertain whether the land is adapted for such purpose;

to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;

to mark such levels, boundaries and line by placing marks and cutting trenches;

and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle;

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so.

Section 5. Payment for damage The officer so authorized shall at the time of such entry pay or tender payment for all necessary damaged to be done as aforesaid, and, in case of dispute as to the sufficiency of the Page 23 of 70 C/WPPIL/283/2013 CAV JUDGMENT amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final.

Section 5A Hearing of objections [1] Any person interested in any land which has been notified under section 4, subsection (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

[2] Every objection under subsection (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of Page 24 of 70 C/WPPIL/283/2013 CAV JUDGMENT the [appropriate Government] on the objections shall be final.

[3] For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.

Section 6. Declaration that land is required for a public purpose (1) Subject to the provision of Part VII of this Act, appropriate Government is satisfied, after considering the report, if any, made under section 5A, subsection (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, subsection (I) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, subsection (2);

Provided that no declaration in respect of any particular land covered by a notification under section 4, subsection (1) Page 25 of 70 C/WPPIL/283/2013 CAV JUDGMENT [i] published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of three years from the date of the publication of the notification; or [ii] published after the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of one year from the date of the publication of the notification:

Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation 1 In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4, subsection (1), is stayed by an order of a Court shall be excluded.

Explanation 2. Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues.

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(2) Every declaration shall be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situated of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which It is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be;

and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing.

The National Highways Act, 1956 Section 3A Power to acquire land, etc. (1) Where the Central Government is satisfied Page 27 of 70 C/WPPIL/283/2013 CAV JUDGMENT that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.

(2) Every notification under subsection (1) shall give a brief description of the land.

(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.

Section 3B Power to enter for survey, etc On the issue of a notification under subsection (1) of section 3A, it shall be lawful for any person, authorized by the Central Government in this behalf, to

(a) make any inspection, survey, measurement, valuation or enquiry;

(b) take levels;

(d) set out boundaries and intended lines of work;

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(e) mark such levels, boundaries and lines placing marks and cutting trenches; or

(f) do such other acts or things as may be laid down by rules made in this behalf by that Government.

Section 3C Hearing of objections [1] Any person interested in the land may, within twentyone days from the date of publication of the notification under subsection (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that subsection.

(2) Every objection under subsection (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.

Explanation. For the purposes of this sub section, "legal practitioner" has the same meaning as in clause (i) of subsection (1) of Page 29 of 70 C/WPPIL/283/2013 CAV JUDGMENT section 2 of the Advocates Act, 1961 (25 of 1961).

(3) Any order made by the competent authority under subsection (2) shall be final.

Section 3D. Declaration of acquisition

(l) Where no objection under subsection (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 subsection (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 subsection (1) of section 3A. (2) On the publication of the declaration under subsection (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 subsection (1) of section 3A for its acquisition but no declaration under subsection (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:

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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 subsection (1) of section 3A is stayed by an order of a court shall be excluded.

(4) A declaration made by the Central Government under subsection (1) shall not be called in question in any court or by any other authority.

Section 3E Power to take possession.

(l) Where any land has vested in the Central Government under subsection (2) of section 3D, and the amount determined by the competent authority under section 3G with respect to such land has been deposited under subsection (1) of section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorized by it in this behalf within sixty days of the service of the notice.

(2) If any person refuses or fails to comply with any direction made under subsection (1), the competent authority shall apply--

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(a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;

(b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorized by it.

Section 3F Right to enter into the land where land has vested in the Central Government.

Where the land has vested in the Central Government under section 3D, it shall be lawful for any person authorized by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance, management or operation of a national highway or a part thereof, or any other work connected therewith.

Section 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.

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(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 subsection (1), for that land.

(3) Before proceeding to determine the amount under subsection (1) or subsection (2), the competent authority shall give a public notice published in two local newspaper, 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 subsection (1) or subsection (2) is not acceptable to either of the parties, the amount shall, on an application by either of Page 33 of 70 C/WPPIL/283/2013 CAV JUDGMENT 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 subsection (1) or subsection (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 Page 34 of 70 C/WPPIL/283/2013 CAV JUDGMENT change.

The National Highways Authority of India Act, 1988 Section 13. Compulsory acquisition of land for the Authority Any land required by the Authority for discharging its functions under this Act shall be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of the National Highways Act, 1956 (48 of 1956).

7 The Division Bench of this Court [Coram :

Hon'ble Mr. Justice V.M.Sahai and Hon'ble Mr. Justice A.J.Desai], in similarly situated petition being Special Civil Application No.10826 of 2011, held in paragraphs 26.1 to 29, as under:

"26.1 With respect to the first contention that the alignment of widening/constructing of the bypass road was changed at the instance or at the dictates of the local Member of Parliament and other influential local public leaders is concerned, we have gone through the allegations made in detail by the petitioners in the memo of petition. The petitioners have raised the ground of mala fides in Ground (d). The allegations made by the petitioners are that the Committee decided Page 35 of 70 C/WPPIL/283/2013 CAV JUDGMENT to change the alignment only at the dictates of the Member of Parliament, but in support of this, the petitioners have failed to produce any documentary evidence or other evidence that the authorities have considered only and only the representation made by him. We have gone through the representations made by Citizens of Junagadh dated on 19.1.2010, the representation of Civil Engineers Association on 13.1.2010 and similar suggestions made by different institutions. It is true that the local Member of Parliament has requested the National Highway Authority of India to alter the place of widening the bypass which was proposed in the original plan. He has further requested that looking to the area of Junagadh which is surrounded by Girnar Wildlife Sanctuary, the new bypass may be constructed at a distance of 3 to 4 kms away from the existing Junagadh bypass. He has not suggested any area from which the new bypass shall be constructed. Similar is the representation by local Member of Legislative Assembly dated 17.1.2010. The Corporators of Junagadh City have also made detailed representation since the original construction of bypass was passing through a thickly populated area which was not desirable in the interest of citizens of Junagadh City. The respondents have produced a map along with heir affidavitinreply showing the original proposed bypass and two options which were considered for shifting the bypass. Out of these two options, the authorities Page 36 of 70 C/WPPIL/283/2013 CAV JUDGMENT have decided to shift the bypass after getting details from different authorities. The respondents have denied the allegations leveled against the authorities and have submitted that

(i) the Act was enacted by the Parliament for the constitution of an Authority for the development, maintenance and management of National Highways and matters connected therewith and incidental thereto being Act No. 68 of 1988 and thus `National Highways Authority of India' (NHAI) came into existence; (ii) the function of the Authority is to develop, maintain and manage the National Highways already vested in and other National Highways which may be vested in or entrusted to it by the Central Government; (iii) any land required by the Authority for discharging its function under NHAI Act 1988 shall be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of National Highways Act, 1956 (48 of 1956) as provided under Section 13 of the said NHAI Act, 1988; (iv) as defined under Section 3A of the National Highways Act, 1956, where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a National Highways or part thereof, it may, by notification in the official gazette, declare its intention to acquire such land and such a notification shall give a brief description of the land to be Page 37 of 70 C/WPPIL/283/2013 CAV JUDGMENT acquired for the aforesaid purpose and (v) for the purpose of acquisition of land and to exercise authority for the said purpose under National Highways Act, 1956, Competent Authority under Section 3A of the said Act has to be appointed by the Central Government.

26.2 It is further contended in the affidavitin reply that the entire process of land acquisition is performed by the Competent Authority, namely, Special Land Acquisition Officer, Collector Office, Junagadh, for the area under reference. He has also produced a map to demonstrate that the yellow line in the map shows the old highway which was passing through Junagadh City and on the left side of Junagadh City in the map, the wildlife sanctuary is situated. Therefore, expansion of road from that side of the City was not possible. The black line close to the yellow line in the map shows the bypass under existence constructed by the State Government. This bypass indicated in the black line shows the railway line has to be crossed to get it connected back to yellow line i.e. old highway. The yellow line further shows that railway line has to be crossed once again to go towards Somnath. Accordingly, initially the bypass was tentatively proposed as reflected by way of red line very close to black line. It is further contended that the red line starting from Vadal and close to black line was considered in a manner that railway line was not Page 38 of 70 C/WPPIL/283/2013 CAV JUDGMENT required to be crossed. However, as per the outcome of the meeting organized by the Gujarat Pollution Control Board where the District Collector and about 230 representatives of different villages were present, it was suggested that, the bypass should be at least 34 kms away from the city of Junagadh. The matter was referred to independent consultant who considered two alternatives, one is reflected in white line and another one is reflected in another red line, which starts from a point ahead of Vadal towards Jetpur from Junagadh and this outer red line covers much longer distance and would be much more expensive. The Independent consultant therefore recommended the proposed bypass shown in white line which is away from the City of Junagadh and also relatively shorter in distance and which avoids crossing of railway line too. This proposal of the Independent Consultant reflected in white line, which passes at a reasonable distance away from Junagadh City and also avoids railway crossing was considered and approved by the Competent Authority of NHAI.

27 The ratio laid down in the case of Union of India v. Dr. Kushala Shetty (supra) in our considered opinion, would be applicable in the present case as far as the allegations of mala fides are concerned. It has been held by the Apex Court that when the petitioners have made a bald allegation that the decision of alignment has Page 39 of 70 C/WPPIL/283/2013 CAV JUDGMENT been taken at the instance of a particular person and neither any material is placed on record nor it has been prima facie proved that the decision was a mala fide one, the High Court cannot make a roving inquiry to fish out some material and draw a dubious conclusion that the decision and action of the respondents are tainted by mala fides. It is further observed in the said judgment that when the decision is taken by the Competent Authority with the help of Experts in the subjects and when it is established that the decisions are taken in the interest of public at large and there is no material to establish that the decision is mala fide one, the courts are not permitted to review the decision of Experts in its judicial power. The Court can nullify the acquisition of land in rarest of rare cases, a particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the present case, we hereby hold that the petitioners have failed to establish that the decision of changing the alignment of bypass is mala fide and taken at the instance of local leaders and, therefore, the said contention is hereby negatived.

28 Dealing with the second contention, with regard to nonapplication of mind by the authorities, while shifting the bypass on the ground that the original proposed bypass was passing through Junagadh Municipal Corporation Page 40 of 70 C/WPPIL/283/2013 CAV JUDGMENT which necessitated to be changed as per public meeting held on 5.1.2010 away from the limits of Junagadh Municipal Corporation since the present bypass which is proposed is also passing through the limits of Junagadh Municipal Corporation, we are of the opinion that the same is in consonance with the necessity of the day. The distance between the original proposed bypass and the present proposed bypass may hardly be 1.25 km, but the decision was taken in a public meeting dated 5.1.2010 to shift the bypass from the area which is alleged to have been thickly populated is in the interest of public at large and in the interest of students who are studying in the educational institutions which are situated on the original proposed bypass. We accept the say of the respondents with regard to this contention, that the decision has been taken in the interest of the public at large and when a bypass is passing through a highly populated locality, there are all possibilities of more accidents. When the traffic passes through the bypass, the speed would be higher than normal speed. After studying the geographical area, from which the original proposed bypass was to be constructed or widened, the authorities found that the said area was a congested one and it was thickly populated and number of educational institutions were found on the said road and, therefore, the decision was taken to shift the Page 41 of 70 C/WPPIL/283/2013 CAV JUDGMENT highways. The authorities have considered two options for the site of shifting of the bypass which is shown in the map produced along with the affidavitinreply. The authorities have compared the two options and, ultimately, came to the conclusion that the option No.1 is required to be accepted since the expenditure of constructing bypass would be less than option No.2. The authorities have decided to spend more amount of about Rs.15 crores for shifting the originally proposed bypass as the same was hazardous for the public and the Junagadh City. In view of all these exercise undertaken by the authorities, we are of the opinion that, though, the present proposed bypass is to be constructed within the limits of Junagadh Municipality, the exercise undertaken by the authorities are justified and, as stated hereinabove, the Court will not interfere in the decisions of the Experts as far as the construction of bypass road is concerned. We therefore hold that the authorities have rightly finalized Option No. 2 for construction of bypass.

29 The third ground canvassed by the petitioners is with regard to nonfollowing of the directions issued by the Ministry of Environment which are enumerated in the Notification dated 14th September, 2006. ........."

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[emphasis supplied] That detailed particulars of notification was reproduced in paras 31, 32, 35 to 37 of the judgment, which reads as under:

"31 As stated hereinabove, when the public meeting was convened by the authorities on 5.1.2010, it appears to us that the authorities did follow all the procedures prescribed under this Notification. Advertisements were published in local newspapers in English as well as in Gujarati languages inviting public at large for their views, suggestions, etc. The public meeting was held in the presence of the District Collector and responsible officers from the different departments in public place like City Town Hall. It appears from the Minutes of the meeting and the decision taken in the said meeting that the public at large who were affected by the original proposed widening/constructing of bypass were present. The local leaders submitted their representations, different institutions also put up their suggestions before the Committee and a healthy discussion took place in the meeting held on 5.1.2010. It appears that the authorities and the public was aware about the originally proposed bypass which was passing through thickly populated area. The grievance raised by the local Page 43 of 70 C/WPPIL/283/2013 CAV JUDGMENT residents as well as the educational institutions and the local leaders were discussed in the meeting and their suggestions were accepted by the Experts and thereafter the decision is taken by the authorities to shift the bypass from the place originally proposed.

32 We do not accept the submission made by learned Advocate Mr. Joshi that when the original Notification dated 4th November, 2009 was published, the villagers of the Rajkot and Junagadh Districts were aware that the authorities have decided to construct a bypass which would be passing through these two Districts. The said Notification was published only with regard to the appointment of the Officers who shall act as the Officers under the National Highways Act. In this Notification, no details are provided by the authorities about the lands which are going to be acquired by the authorities. It is their own admission in their affidavitinreply and map that the authorities had considered two options for new bypass after the decision which was taken in public meeting of 5.1.2010.

35 As stated hereinabove, the language used in the Notification published in `Divya Bhaskar' is in Hindi language which is not the language of the region and not the mother tongue of the residents of that area. At the initial stage, Page 44 of 70 C/WPPIL/283/2013 CAV JUDGMENT when the Officers were appointed for the acquisition proceedings, the authorities have published the Notification in three daily newspapers i.e. one in Gujarati, another is in Hindi and third one is in English. The authorities should have undertaken the same exercise by publishing the most import Notification under Section 3A(1) of the National Highways Act by which the description of the lands etc are mentioned which are under acquisition. The authorities have failed in following the mandatory provision of the said Section. In the case of Madhya Pradesh Housing Board vs. Mohd. Shafi & Ors., as reported in (1992) 2 SCC 168, in which the Apex Court has held that if a Notification is defective and does not comply with the requirements of the Act, it is not only vitiates the Notification but also renders all subsequent proceedings connected with the acquisition bad. Of course, this case was with regard to the Notification issued under Section4 of the Land Acquisition Act, 1894, but the principle laid down in the said case is applicable in the facts of the present case also when the Court has come to the conclusion that the authorities have committed breach of mandatory provision contained in Section 3A(3) of the National Highways Act and valuable rights of raising objections under Section3C of the Act is vitiated. We hereby hold that the authorities have not followed the mandatory provisions of Page 45 of 70 C/WPPIL/283/2013 CAV JUDGMENT Section 3A(3) of the National Highways Act, 1956 while issuing Notification dated 19.10.2010.

36 The last submission with regard to the decision rendered by the authorities under Section 3C(2) of the National Highways Act is concerned, we do not want to offer any comments since we have come to the conclusion that the Notification issued by the authorities under Section 3A(1) of the National Highways Act is contrary to law and against the mandatory provisions of the Act and, therefore, the subsequent proceedings undertaken by the authorities becomes bad in eyes of law.

37 In the result, the petition is partly allowed.

The Notification dated 19th October,2010 issued under Section 3A(3) of the National Highways Act, 1956, is quashed and set aside and accordingly the subsequent proceedings undertaken by the respondents-authorities are held to be null and void. Rest of the prayers are rejected. Rule is made absolute to the aforesaid extent only. There shall be no order as to costs.

8 In Special Civil Application No.14237 of 2011 filed by the petitioners, a Division Bench of this Court [Coram : Hon'ble Mr. Justice A.L.Dave and Hon'ble Mr. Justice Mohinder Pal], passed the following order:

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"By this petition, the petitioners seek following reliefs:

"[A] admit this the petition;

[B] issue appropriate writ, order or direction quashing and setting aside the impugned notification issued by the Authority under Section 3 (A) of the National Highways Act, 1956 dated 19th October, 2010 AnnexureI;

[C] issue appropriate writ, order or direction restraining the respondents, their agents and servants from further proceedings of acquisition of lands enumerated in the notification published under Section 3 (A) of the Act (AnnexureI), during the pendency and final hearing of this petition;

[D] issue appropriate writ, order or direction restraining the respondents, their agents and servants from taking possession of the lands enumerated in the notification published under Section 3 (A) of the Act (Annexure - I), during the pendency and final hearing of this petition;

[E] Be pleased to issue appropriate an order and set aside all acquisition proceedings.

[F] grant such and further relief/s as it is Page 47 of 70 C/WPPIL/283/2013 CAV JUDGMENT deemed necessary in the interest of justice."

2. Heard learned Advocate Ms.Sheeja Nair on behalf of learned Advocate Mr.G M Amin for the petitioners, learned Advocate Mr.Narendra Khare for respondents No.1 and 2 and Ms.Mehta, learned Assistant Government Pleader for respondents No.3 and 4.

3. The petitioners No.2 to 8 are residents of villages Vadal, Vadhavi, Nandarkhi, Galiawada, Koyli and Shahpur of District Junagadh. Petitioner No.1 is an Association formed by affected farmers whose lands are likely to be acquired for widening of JetpurSomnath National Highway No.8D.

4. As can be seen from the averments made in the petition, the petitioners in substance, challenge Notification issued under Section 3[A] of the National Highways Act, 1956 dated 19/10/2010 (AnnexureI) to the petition. The rest of the reliefs are consequential in nature.

5. It is not in dispute that similar petition was earlier preferred by several petitioners bearing SCA No.10826 of 2011, which has been disposed of by a coordinate Bench of this Court by a CAV judgment dated 29/12/2011 in following terms:

"37 In the result, the petition is partly Page 48 of 70 C/WPPIL/283/2013 CAV JUDGMENT allowed. The Notification dated 19th October,2010 issued under Section 3A(3) of the National Highways Act, 1956, is quashed and set aside and accordingly the subsequent proceedings undertaken by the respondents- authorities are held to be null and void. Rest of the prayers are rejected. Rule is made absolute to the aforesaid extent only. There shall be no order as to costs."

6. In light of the above order, the question of granting the first relief prayed for in the present petition does not survive, as it is already granted by a coordinate Bench. So far as relief Nos. (C) & (D) are concerned, they are for interimreliefs, and once this Court has disposed of earlier petition by quashing and setting aside the Notification sought to be quashed and set aside again, and the petition is being disposed of, these reliefs do not survive.

7. This petition, therefore, stands disposed of by holding that the Notification dated 19/10/2010 (AnneuxreI) issued under Section 3[A] of the National Highways Act, 1956 as sought to be quashed and set aside, already stands quashed and set aside by earlier order referred to herein above by a coordinate Bench of this Court. The petition stands disposed of accordingly. No order as to costs."

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Thus, notification dated 19.10.2010 issued under Section 3(A) of National Highway Act, 1956 was quashed and set aside on the ground that mandatory requirement under law viz. Section 3A(3) to publish such notification in vernacular, in the facts and circumstances of this case in `Gujarati' was not followed. Other contentions on merit came to be rejected as reproduced in earlier paragraphs, which also form grounds of challenge in the present petition.

9 That on careful perusal of Alignment Option Study Report on Junagarh Bypass, a comparative study is made of all options, which are forming part of the subject matter of this writ petition. The study was undertaken under different heads viz. 1.2 Alignment Selection and the factors considered for qualitative comparison are:

• Land Availability • Affect on residential/commercial buildings • Ponds affected • Religious structures affected • Environmental Quality Similarly quantitative evaluation was done for the following factors:

• Route length • Length of agricultural land affected Page 50 of 70 C/WPPIL/283/2013 CAV JUDGMENT • Length of barren land affected • Length of barren land affected • Number of road crossings • Pucca / Kutcha - commercial / residential structures affected • Telephone / Electric poles to be shifted • Total Cost The topography of Junagadh town and surrounding areas; exigency of bypass to avoid intercity traffic congestion; very limited development adjacent to the existing bypass for substantial length except for end section on Somnath side, etc. were taken in to consideration.

That alternative alignments were initially taken and option No.1 viz. New Bypass towards the left side of the existing Junagadh Bypass was eliminated at the initial stage and this option was not taken for further analysis. Option 2 viz. Widening Existing Carriageway along with construction of missing ink was considered bu in view of strong pubic opposition and for the reasons as under the above option was not recommended:

[A] This alignment falls within the Junagarh Municipality limit.

[B] The existing land owners have already suffered once by land acquisition for he existing Page 51 of 70 C/WPPIL/283/2013 CAV JUDGMENT bypass.

[C] Considering growth rate of City the existing bypass will soon become unsafe and congested.

[D] There are various schools which are liable to be affected in the proposed widening option.

Option 3 viz. Bypass on the Right Hand Side of Existing Carriageway was explored and it is reproduced, as under:

"This new bypass alignment has been planned on Right side of the existing road. This new bypass option has been explored based on the following considerations:

[1] The proposed bypass should be as far s possible away from the City Municipal limit [2] The length of the proposed bypass should be minimum to have minimum land requirement.

[3] The fertile land should be avoided as far as possible.

Since there is scope to avoid construction of two RoBs one across JunagadhKoely railway line at 35.2 and the other one across ShapurKoely railway line km 42.1 by taking the alignment on Right Hand side of the existing carriageway Page 52 of 70 C/WPPIL/283/2013 CAV JUDGMENT beyond Railway line. Accordingly the tentative take of point would be at km 20.85 and merging point would be at km 40.65, the tentative bypass length by this option would be 19.8 km. The proposed alignment would cross the railway line only once at Km 21.35 and need not to pass through any developments.

The proposed alignment traverses through agricultural land as minimum as possible and it is sufficiently away from the Municipal limit of Junagadh city. The proposed alignment crosses five cart tracks and two metal roads one at nearer to start of bypass take off point and the other one is before bypass merging point.

1.3.2 Alignment Selection As already mentioned above, both quantitative and qualitative analysis of the alternative options has been undertaken for the selection of the bypass alignment.......".

9.1 That quantitative Analysis of Alternate Alignments for Junagadh Bypass and quantitative Analysis of Alternative Alignments for Junagadh Bypass were considered and no doubt total cost of the option 2 is three times less than option 3 as against Rs.39.4 crores for option 2, it is Rs.107 crores for option 3, but quantitative and qualitative analysis reveal that option No.3 was most desirable in view of various Page 53 of 70 C/WPPIL/283/2013 CAV JUDGMENT factors viz. land availability , residential / commercial buildings affected, water bodies affected, religious structures affected, environment quality, distance from municipal boundaries, etc. and it was concluded as under:

"1.3.3. Conclusions It can be noted from the above comparative tables that Option 3 on Right Hand Side of existing road has maximum advantages for construction of bypass. Any other option towards left side or right side of the proposed alignment will lead to either [1] Bring the road near to the urban sprawl;

[2] Increase the length of the bypass which will in turn increase the acquisition of more land;

[3] Construction of more bridges on the stream at right side of the proposed alignment.

Due to above mentioned clarification, the alignment adopted is actually the optimum possible alignment of the Junagadh Bypass. Hence, it is recommended for the project".

9.2 Thus, even as per the Expert Committee for alignment of option study of Junagadh Bypass and report submitted, it is clear that the most feasible Page 54 of 70 C/WPPIL/283/2013 CAV JUDGMENT option as per the comparative tables, is of option 3 and right hand side of existing road for construction of bypass. That the factor and cost escalation is not only due to selecting option 3, but also in view of price hike of various materials to be used including labour charges for construction of such bypass and amount of compensation to be paid. In larger public interest if the competent authority as per the Act takes a decision in administrative exercise of powers by following procedure laid down under the Act and Rules, writ court exercising powers under Article 226 of the Constitution of India has limited scope to interfere with such decision and at the most the court in such case can look into decision making process. It is clear from two earlier judgments rendered by two different Division Benches of this Court in Special Civil Application No.14237 of 2011 and Special Civil Application No.10826 of 2011, contentions with regard to change of option at behest of politically influential persons whose lands and properties were to be acquired as per earlier notification, have not found favour with and it stood rejected. Further, the contention with regard to nonapplication of mind by the authority and comparative hardships which may cause to persons likely to be affected visavis absolute need for construction of bypass highway for smooth transportation facilities for the passengers, including pilgrims travelling to and fro Somnath and to avoid congestion in the city of Junagadh and in nearly areas, the exercise undertaken by the authorities was justified. The impugned notification Page 55 of 70 C/WPPIL/283/2013 CAV JUDGMENT in the above writ petition came to be quashed and set aside only on the ground that the competent authority had failed to follow procedure under Section 3A(2) of the Act viz. publishing the notification to acquire the land for national highway in two local newspapers one of which will have to be in vernacular language.

9.3 Ordinarily in public interest litigation, if grievances are found to be genuine and damage done to vast majority of persons or area is of such magnitude and public authorities act in disregard to rule of law, certainly court can look into such things irrespective of decision taken earlier by the court in this regard. But, in the facts of the present case and justification putforth by the authorities for exercising powers under Section 3A, 3B, 3C, 3D, 3E, 3F and 3G, we do not find any need to redeliberate on the issue of malafide exercise of powers by the authorities under the Act at the behest of politically influential persons and about nonapplication of mind and about need of selecting option 3 of the bypass in question, the reproduction of paragraphs from the earlier decisions would go to show that the above issues attained fait accompli and in view of law laid down in the case of Kushala Shetty [supra].

9.4 Even notification dated 19.10.2010 issued under Section 3A of Act, 1956 was quashed and set aside and the competent authority under the Act has undertaken an elaborate exercise which included inviting objections, consideration thereof, including Page 56 of 70 C/WPPIL/283/2013 CAV JUDGMENT affording opportunity of hearing to objectors and taking final decision.

9.5 None of the objectors raised any objection qua building, maintenance, managing and operation viz. about usage of the land and, therefore, it was not open for them to raise any objection qua land acquisition when they have failed to establish any malafide on the part of the respondent - authority.

9.6 In case of Barangore Jute Factory [supra], in para 8, the Apex Court clearly held that under provisions of Section 3C(1) of the National Highway Act gives a very limited right to object and that objection can be only to the use of the land under acquisition for purposes other than those under Section 3A(1). It is further emphasized that the Act confers no right to object any acquisition, as such.

9.7 In addition to the above, the officer hearing objections has filed affidavit making it clear the objectors were here and decision is rendered accordingly after application of mind and, therefore, there is no reason to disbelieve such statement on oath made by the competent officer under the Act. Even the contention with regard to inter se change of option No.2 and Option No.3 upon careful perusal of maps annexed with the petition do not reveal any irregularity and comparative statement made about quantitative analysis of alternative alignment clearly reveal that option No.3 was considered on merit and Page 57 of 70 C/WPPIL/283/2013 CAV JUDGMENT has found favour with the authority for which due process was followed under the National Highway Act.

9.8 Even award under Section 3G is also passed and there is a delay in challenge to such award. The petitioners herein were party to proceedings of Special Civil Application No.12431 of 2010, who accepted the verdict given by the Division Bench of this Court in earlier writ petition being Special Civil Application No.10826 of 2011 and, therefore, cumulative effect of all the above is unsuccessful attempt made by the petitioners again raising almost similar contentions in the second round of Public Interest Litigation.

9.9 That subsequent notification No. S.O 1879(E) dated 17.08.2012 is also for the very same land for which earlier notification was issued on 19.10.2010 and requirement of Section 3A is fully complied with and, therefore, we do not find any force in submissions of learned counsel for the petitioners that the above notification deserves to be quashed and set aside as being arbitrary, unreasonable, discriminatory and a piece of colourable exercise power and, therefore, violative of Articles 14 and 19 of the Constitution of India. Further, the subsequent notification is also issued after following due process of law and deserves no interference by this Court.

9.10 We are not unmindful about the likelihood Page 58 of 70 C/WPPIL/283/2013 CAV JUDGMENT consequences of disbursement, displacement of persons, damage to their properties and their source of livelihood, but compensation that is to be determined under Section 3G would to some extent mitigate such hardships and in case of inadequacy of compensation, avenues will be certainly open for the affected persons to take action in accordance with law.

9.11 We find force and agree with submissions made by Mr. Mihir Joshi, learned Senior Advocate for respondent authority about Scheme of Act, 1894 and Act, 1856 both are about nature of public hearing to be given and procedure to be followed by the competent authority while deciding such objections. Section 4 of the Act, 1894 is with regard to publication of preliminary notification and powers of officers when an issue arises about acquisition of land likely to be needed for a public purpose, the appropriate government has to issue notification and subsequent procedure to be followed under Section 5 of hearing objections under Section 5A and declaration that the land is required for the public purpose under Section 6 of the Act. However, if National Highways Act, 1956 is perused, Section 3A clearly confers power upon the Central Government to acquire land of such land is required for a public purpose like building, maintenance, management or operation of a national highway and to issue public notification for its intention to acquire such land in official gazette and, therefore, there is a mark differed powers between language of Section 4 of the Act, 1894 and Page 59 of 70 C/WPPIL/283/2013 CAV JUDGMENT Section 3A of National Highways Act, 1956 viz. Section 4 begins with the word "whenever" as against section 3A of the National Highways Act "mandates satisfaction of the Government" for acquiring land for the various purposes. Even powers to be exercised under Section 5A of the Act, 1894 about hearing of objections and Section 3C of National Highways Act are differently worded and objections under Section 3C of the National Highway Act is only pertaining to use of the land for the purpose or purposes mentioned in the section. Upon affidavits filed by the concerned officer, who heard the objections and procedure followed by him, we are of the view that no illegality or irregularity appears in rejecting such objections and almost all the objections were on the same line and, therefore, the decision rendered by him cannot be faulted for lack of reasoning also in view of law laid down by the Apex Court in the case of Barangore Jute Factory [supra].

9.12 Therefore, none of the contention of the petitioners deserves acceptance by this Court on merit by this Court in view of what is discussed and held herein above and prayers stand rejected accordingly.

9.13 That the case of Hindustan Petroleum Corporation Limited [supra] was in the context of Section 5A of the Act about duty cast upon the concerned Collector to make further inquiry in exercise of powers under Section 5A of the Act and accordingly the Apex Court noticed that concerned Page 60 of 70 C/WPPIL/283/2013 CAV JUDGMENT Collector may call for the record and upon satisfaction supported by reasons decision can be taken.

The case of Gurbandarcor Brar [supra] was in the context of rejection of larger number of substantive objections without assigning reasons as an outcome of nonapplication of mind by the competent authority and the Apex Court deprecated the system of governance prevailing in present day scenario and tendency of junior officers in administration acting at dictates of their superiors and accordingly it was held that failure to examine substantive grounds on which land owners have objected the land acquisition result into miscarriage of justice.

In the case of Raghubirsing Shehravali [supra], the Apex Court found that Land Acquisition Officer should afford opportunity of hearing to the objectors and consider the plea against the acquisition of land.

The case of Usha Stad and Agricultural Farm Private Limited [supra] was again about following principles of natural justice enshrined under Section 5A of the Land Acquisition Act and other decisions are also no the same line about following principles of natural justice and/or assigning reasons by following procedure in accordance with law.

Thus, all the above decisions rendered in Page 61 of 70 C/WPPIL/283/2013 CAV JUDGMENT the backdrop subject matters arising out of the Land Acquisition Act simply cannot be applied when the case of Barangore Jute Factory [supra], the Apex Court clearly held that objectors under National Highway Act has no right to raise objections against acquisition but only restricted against the use of the land.

9.14 So far as the case law cited by the learned counsel for the petitioners is concerned, we are in complete agreement with the law laid down by the Apex Court therein, however, the case law relied on by the learned counsel for the petitioners has no application to the facts of the present case inasmuch as the same are mostly relating to Land Acquisition Act.

9.15 In the case of Kushala Shetty [supra], the Apex Court has observed that the competent authority has to give opportunity of hearing to the objectors, but the decision making process is to be followed by the competent authority for passing the order. In the above case, the Aped Court considered the importance of objections to be raised and rejection of such objections by the officer concerned by observing that the land proposed for acquisition is necessary for widening existing national highway into four lines. In para 25 of the said judgment, the Apex Court held as under:

"25. The plea of the respondents that alignment of the proposed widening of National Highways was manipulated to suit the vested Page 62 of 70 C/WPPIL/283/2013 CAV JUDGMENT 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 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".

In paras 26 and 27 the Apex Court referred to certain case laws decided by the Apex Court int eh context of grounds about acquisition on the ground that the acquisition was vested from the malafides and rejecting the plea of malafides in all those cases.

"26. A somewhat similar question was considered in Girias Investment Private Ltd. v. State of Karnataka reported in (2008)7 SCC 53. In that case, the acquisition of the land under the Karnataka Industrial Areas Development Act, 1966 was challenged on various grounds including the one that the acquisition was vitiated due to mala fides. While rejecting the plea of mala fides, the Court referred to S.R. Venkataraman v. Union of India (1979) 2 SCC 491, State of Punjab v.

Page 63 of 70 C/WPPIL/283/2013 CAV JUDGMENT

Gurdial Singh (1980) 2 SCC 471 and Collector (D.M.) v. Raja Ram Jaiswal (1985) 3 SCC 1 and observed:

"14. It is obvious from a reading of the pleadings quoted above that only vague allegations of mala fides have been levelled and that too without any basis. There can be two ways by which a case of mala fides 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 mala fides. It would be seen that there is no allegation whatsoever in the pleadings that the case falls within the first category but an inference of mala fides has been sought to be drawn in the course of a vague pleading that the change had been made to help certain important persons who would have lost their land under the original acquisition. These allegations have been replied to in the paragraph quoted above and reveal that the land which had been denotified belonged to those who had absolutely no position or power. In this view of the matter, the judgments cited by Mr Dave have absolutely no bearing on the facts of the case."

27. We may also refer to the Constitution Bench judgment in E.P. Royappa v. State of Tamil Nadu and another (1974) 4 SCC 3. In that case, the petitioner, who was transferred from the post of Chief Secretary and posted as Officer on Special Duty, challenged the action of government on Page 64 of 70 C/WPPIL/283/2013 CAV JUDGMENT various grounds including the one that the decision of the government was vitiated due to mala fides of the Chief Minister. This Court rejected the plea of mala fides by making the following observations:

"90. ..... The petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second respondent and incurred his wrath by inconvenient and uncompromising acts and notings and contended that the second respondent, therefore, nursed hostility and malus animus against the petitioner and it was for this reason and not on account of exigencies of administration that the petitioner was transferred from the post of Chief Secretary. The incidents referred to by the petitioner, if true, constituted gross acts of maladministration and the charge levelled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second respondent in these acts of maladministration, that the second respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second respondent transferred him from the post of Chief Secretary. The transfer of the petitioner was, therefore, in mala fide exercise of power and accordingly invalid.

91. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the Page 65 of 70 C/WPPIL/283/2013 CAV JUDGMENT political Government headed by the second respondent. It is not within our province to embark on a farflung inquiry into acts of commission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say that he had malus animus against the petitioner which was the operative cause of the displacement of the petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus animus on the part of the second respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trail. The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary.

92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual Page 66 of 70 C/WPPIL/283/2013 CAV JUDGMENT occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up these considerations are wholly irrelevant in judicial approachbut because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent."

In para 28 the Apex further observed as under:

"28. Here, it will be apposite to mention that NHAI is a professionally managed Page 67 of 70 C/WPPIL/283/2013 CAV JUDGMENT 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 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 exfacie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."

10 In view of the above observations and importance of professionally managed National Highway Authority of India, a statutory body involved in the field of development and maintenance of national highways, and as stated by the Apex Court, the construction of bypass for NH 8A is absolutely necessary in the public interest for which use of the Page 68 of 70 C/WPPIL/283/2013 CAV JUDGMENT land is necessary with twin objects of enhancing traffic capacity and safety in the efficient transportation of the passengers as well as the goods on the route, we hereby dismiss this petition. Notice is discharged.

11 The amount of Rs.1,00,000/ ordered to be deposited by order dated 05.09.2014 and complied with by the petitioners for which we are of the view that upon furnishing proper proof and identity and submitting application before the Registry, such amount to be refunded to the petitioners in view of the fact that ultimately a nonregistered organization of farmers, the petitioners herein, has tried to espouse cause of affected persons.

(ANANT S.DAVE, J.) (MOHINDER PAL, J.) At this stage, Mr. B.M.Mangukiya, learned counsel for the petitioners, prays to continue the relief granted earlier, to which, Mr. Maulik Nanavati, learned counsel for the respondent - NHAI raised objection.

Considering the facts and circumstances of the Page 69 of 70 C/WPPIL/283/2013 CAV JUDGMENT case, the request of learned counsel for the petitioners is rejected.

(ANANT S. DAVE, J.) (MOHINDER PAL, J.) pvv Page 70 of 70

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