Gujarat High Court
Mehroon Ismail Shaikh vs Union Of India on 22 June, 2020
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/SCA/17585/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17585 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 17586 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19898 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
NO
made thereunder ?
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MEHROON ISMAIL SHAIKH
Versus
UNION OF INDIA
==========================================================
Appearance:
MS MEGHA JANI ADVOCATE (1028) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
MR MAULIK NANAVATY, ADVOCATE FOR NANAVATI & CO.(7105) for the
Respondent(s) No. 2,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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C/SCA/17585/2019 JUDGMENT
CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 22/06/2020
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 Since the issues raised in all the captioned writ applications are the same, those were heard analogously and are being disposed of by this common judgement and order.
2 For the sake of convenience, the Special Civil Application No.17586 of 2019 is treated as the lead matter.
3 By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs:
"(A) that the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside notifications of the Central Government dated 27.06.2019, 26.10.2018 and 31.08.2019 issued under Section 3D of the Highways Act, 1956 for expansion (4 laning) of DwarkaKhambhaliaDevariya section of National Highway (Bharatmala) in the State of Gujarat, to the extent of notifying the acquisition of the petitioners' lands;
Alternatively that the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside notifications of the Central Government dated 27.06.2019, 26.10.2018 and 31.08.2019 issued under Section 3D of the Highways Act, 1956 for expansion (4 laning) of DwarkaKhambhalia Devariya section of National Highway (Bharatmala) in the State of Gujarat, to the extent of notifying the acquisition of the petitioners' lands for the purpose of establishing a toll plaza;
(B) that the Hon'ble Court be pleased to issue a writ of mandamus or a Page 2 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to relocate the toll plaza in a manner consistent with Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 and thereafter issue fresh notification for the purpose, as it deems fit and necessary, as per the Highways Act, 1956;
(C) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay the implementation of the impugned notifications of the Central Government dated 27.06.2019, 26.10.2018 and 31.08.2019 issued under Section 3D of the Highways Act, 1956 for expansion (4 laning) of DwarkaKhambhaliaDevariya section of National Highway (Bharatmala) in the State of Gujarat, to the extent notifying the acquisition of the petitioners' lands;
(D) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to restrain the respondents and its officer and/or subordinates from taking any action in furtherance of the impugned notifications of the Central Government dated 27.06.2019, 26.10.2018 and 31.08.2019 issued under Section 3D of the Highways Act, 1956 for expansion (4 laning) of DwarkaKhambhaliaDevaria section of National Highway (Bharatmala) in the State of Gujarat;
(E) for adinterim relief in terms of para 9(C) and (D) hereinabove;
(F) for costs;
(G) for such other and further orders as the nature and circumstances of the case may require in the interest of justice."
4 The case of the writ applicants, in their own words, as pleaded in the memorandum of the writ application, is as under:
"3.1 The petitioners are owners of various parcels of lands that are sought to be acquired by respondent No.1 under the impugned notifications for the purpose of expansion (4 laning) of Dwarka KhambhaliaDevariya section of National Highway (Bharatmala) in the State of Gujarat (hereinafter referred to as "the Highway"). The petitioners crave leave to produce such title documents, as and when required. All such lands owned by the petitioners are nonagricultural lands.
3.2 The proposed expansion is on DwarkaKhambhaliya Devariya National Highway No.8E Link that connects Vadinar to Dwarka. Presently the width of the Highway is apprx. 10 meters. The proposed expansion will Page 3 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT increase the width to 20 meters making it of four lanes. It appears that a toll plaza is proposed on a patch of approx. 700 mtrs of the Highway. The width of the road where the toll plaza is proposed would be of 200 meters. The land of the petitioners is situated on this patch of 700 mtrs. The petitioners would loose almost all of their landholding covered under impugned notifications in the proposed acquisition.
3.3 The location of a toll plaza on a National Highway is regulated under National Highway Fees (Determination of Rates and Collection) Rules, 2008 (hereinafter referred to as "the Rules). Rule 8(1)(2) and 8(2) of the Rules 2008 states as under:
"(1) The executing authority or the concessionaire, as the case may be, shall establish a fee plaza beyond a distance of ten kilometers from the municipal or local town area limits; provided that the executing authority may, for reasons to be recorded in writing locate or allow the concessionaire to locate a fee plaza within a distance to ten kilometers of such municipal or local town area limits, but in no case within five kilometers of such municipal or local town area limits; provided further that where a section of the national highway, permanent bridge, bypass or tunnel, as the case may be, is constructed within the municipal or town area limits or within five kilometers from such limits, primarily for use of the residents of such municipal or town area, the fee plaza may be established within the municipal or town area limits or within a distance of five kilometers from such limits.
(2) Any other fee plaza on the same section of national highway and in the same direction shall not be established within a distance of sixty kilometers; provided that where the executing authority deems necessary, it may for reasons to be recorded in writing, establish or allow the concessionaire to establish another fee plaza within a distance of sixty kilometers; provided further that a fee plaza may be established within a distance of sixty kilometers from another fee plaza if such fee plaza is for collection of fee for a permanent bridge, bypass or tunnel."
3.4 The petitioners state that the Ministry of Road Transport and Highways vide letter dated 02.11.2018 has communicated to all concerned that, it has been decided that guidelines as below are to be followed for establishment of user fees plazas in all the projects under implementation as well as those in the planning stage;
1. For all National Highways Project, that have been awarded post 5th September 2017, the guidelines specified vide NH 37012/0/2016H dated 05.09.2017 shall be scrupulously followed.
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2. As a onetime measure, all the fee plazas, established in deviation to Rule 8 of NH Fee Rule 2008, may be notified as temporary fee plazas, with the condition that the Executing Agency shall relocate the fee plaza s per provisions of the rule within a period of two years.
3. All the Executing Agencies shall ensure that, for the projects currently under execution, establishment of user fee plazas must be in conformity to NH Fee Rule 2008, and amendments thereto from time to time.
4. Location of the user fee plaza w.r.t. the nearest municipality area and w.r.t. Adjacent fee plazas on the same section, will also be specifically clarified in all cases taken up for approval by the SFC/EFC in future.
3.5 So far as the toll plaza proposed on the lands of the petitioners is concerned, it is ex facie in breach of the Rules and the letter dated 02.11.2018 which embodies a well defined policy. The proposed toll plaza is in the close vicinity of the town of Jam Khambhaliya is the District Head Quarter of the newly made district of Devbhoomi Dwarka. The National High Way which connects Vadinar to Dwarka bypasses Jam Khambhaliya on west side. Petitioners have not been able to access record regarding notification/order determining municipal limits of Jam Khambhaliya. The petitioners seek leave to produce such details on record in future. The Petitioners believe that such limits even by a conservative estimate would be close to RTO situated in Jam Khambhaliya. Presently even important office of administration like the Collectorate, DSP office are situated beyond the point where RTO is located. The Petitioners state that no part of the Highway passes through the municipal limits of Jam Khambhaliya. The Highway benefits those travelling from one town to another, particularly, to Dwarka, The distance between the beginning point of the area of 700 meters which is presumably the area of the proposed toll plaza and the RTO situated in Jam Khambhaliya town where the highway bypasses the town is approx. 2.6 km.
3.6 The Central Government issued various notifications including notification dated 09.03.2018, 31.08.8018 and 30.10.2018 under Section 3A (1) of the Act declaring its intention to acquire various parcels of land "for the purpose of expansion (4 laning) of 0 to 2429 km of Dwarka KhambhaliaDevariya section of the National Highway. It is came to the knowledge of the petitioners that a representation dated 13.08.2018 was made on behalf of Lalitaben Premjibhai Badiani Hospital which is situated in the close vicinity of the land of the Petitioners.
Page 5 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021C/SCA/17585/2019 JUDGMENT 3.7 In the meanwhile, notices were issued from the office of the Project Director, Project Implementation UnitDwarka, NHAI intimating the Petitioners about an official site visit that was to take place for the purpose of structural valuation at the Petitioners' respective lands.
3.8 Petitioners vide letter (lated 14.12.2018 addressed to the Competent Authority, NHAI cum Deputy Collector, Khambhaliya raised objections to acquire various lands, including that of the Petitioners.
3.9 The Petitioners submits that the location of the proposed toll plaza being within ten kilometers of municipal or local town area limits of Jam Khambhaliya, is contrary to law. Further, construction of the toll plaza at the proposed location would lead to demolition of large number of commercial and residential properties, including a busy public hospital and would be detrimental to public purpose. The Petitioners also suggest that the location of the proposed toll plaza could be shifted further down the road by about 6.5 km from RTO, approx. 3.2 km from the currently proposed location of the toll plaza, where large portion of land likely to be of affected by acquisition is Kharaba land.
3.10 It is learnt by the petitioners that without giving the Petitioners an opportunity of bearing as mandated under Section 3C of the Act, the Project Director vide a common letter dated 03.01.2019 addressed to the Competent Authority, NHAI cum Deputy Collector, Khambhaliya disallowed all objections raised by the other land holders with an observations that the location of the Toll Plaza has been finalized by RITES based on technical parameters and it is not possible to shift the location."
5 Thus, it appears from the above that the writ applicants seek to challenge the legality and validity of the Notifications issued by the Central Government under Section 3(D) of the National Highways Act, 1956 (for short, 'the Act') dated 27th June 2019, 26th October 2018 and 31st August 2018 respectively. The writ applicants are aggrieved by the action on the part of the Central Government in notifying the acquisition of the parcels of land owned by the writ applicants for the purpose of expansion (four laning) of the Dwarka - Khambhaliya - Devariya section of the National Highway (Bharatmala) in the State of Gujarat.
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● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS:
6 Ms. Megha Jani, the learned counsel appearing in the Special Civil
Applications Nos.17585 of 2019 and 17586 of 2019 respectively submitted that the impugned Notifications issued by the respondent No.1 are exfacie bad, arbitrary, unreasonable, illegal and in violation of the principles of natural justice.
7 It is submitted that the impugned Notifications are contrary to law to the extent of the proposed location of a Toll Plaza on a patch of 700 meters. It is argued that Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 provides that the executing authority shall establish a Toll Plaza beyond a distance of Ten kilometers from a Municipal or local town area limits. It is submitted by the learned counsel that the proposed Toll Plaza on a patch of 700 meters is located at a distance of primarily 2.6 kilometers from the Municipal or local town area limit of Jam Khambhaliya, and is, therefore, illegal being contrary to the statutory rules.
8 The learned counsel would argue that the construction of a Toll Plaza at the proposed location and the acquisition of the parcels of land owned by the writ applicants for the said purpose is absolutely illegal and in violation of the fundamental rights and other legal rights, as enshrined under the Constitution of India.
9 It is argued that the impugned Notifications are contrary to the rules having regard to the fact that the Highway is not being constructed primarily for the use of the residents of Jam Khambhaliya.
10 Ms. Megha Jani, the learned counsel invited the attention of this Court to ground No.4(D) as raised in the memorandum of the writ application. Ms. Jani laid much emphasis on the said ground for the Page 7 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT purpose of making good her case that the impugned Notifications are illegal. The ground No.4(D) reads thus:
"The Act envisages a procedure for acquisition of land under the Act. Section 3A provides that where the Central Government is satisfied that for a public purpose any land is required for building, maintenance or operation of a national highway, it may declare its intention for acquire such land by way of a notification to be published in two local newspapers, one of which must be in vernacular language. Section 3C enables any person interested in such lands to file objections in writing within 21 days of notification issued under Section 3A of the Act. It also mandates the competent authority to give an opportunity of hearing all objections and making such further inquiry, if any, as the competent authority thinks necessary, either allowing or disallowing objecting raised. Thereafter, as per Section 3D, the Central Government shall declare by notification that the lands should be acquired for the purpose mentioned in Section 3A(1). Section 3G mandates payment of compensation for any land acquired under the Act and enables the competent authority to give public notice published in at least two local newspaper inviting claims from all persons interested in the land to be acquired, and also an opportunity of hearing.
In the present case, contrary to such legal procedure envisaged under the Act;
i. Petitioners who addressed written objections to the competent authority, NHAI cum Deputy Collector, Khambhaliya were not called for any hearing and have been denied a rightful opportunity of hearing as mandated under Section 3C(2) of the Act.
ii. The respondents have taken a decision on objections raised by the petitioners without giving the petitioners an opportunity of being heard.
iii. The respondents have not passed any order, as envisaged under Section 3C (2) of the Act, allowing or disallowing objections raised by the petitioners.
iv. Notification dated 30.10.2018 issued by respondent No.1 under Section 3A (1) of the Act, advertently or inadvertently, omits any mention of the statutorily mandated procedure of filing of objections by interested persons, opportunity of hearing and passing of orders either allowing or disallowing such objections, as mandated under Section 3C of the Act. Instead, it calls upon interested persons to file claims for compensation under Section 3G(1) of the Act within 21 days and states that the decision so taken by the competent authority under Section 3G shall be final. The said notification issued under Section 3A appears to foreclose rights of interested persons under Section 3C of the Act and contemplates a Page 8 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT procedure for acquisition of land which is contrary to the procedure envisaged under the Act.
Thus, the procedure following by the respondents in issuing the said impugned notifications is contrary to law, irregular, arbitrary and in violation of principles of natural justice."
11 Ms. Jani also invited our attention to ground No.4(E), as pleaded in the memorandum of the writ application. The same reads thus:
"Devbhmi Dwarka has recently been declared as a new district, with Khambhalia as its headquarters. The petitioners' lands and lands of others in the surrounding areas are nonagricultural lands. The petitioners have invested large sums of money in purchasing such lands subsumes the petitioner's lands but also surrounding premises where considerable amount of commercial activity is ongoing, in line with the overall development of Devbhmi Dwarka District and Khambhalia. On the other hand, were the proposed toll plaza to be shifted further down the road by only aprox 3.2 kms where most of the surrounding land is kharaba land, it would save acquisition of all such residential and commercial premises and would be in line with ongoing development of Devbhmi Dwarka District with Khambhalia as its headquarter. Thus, the said impugned notifications, to the extent of acquisition of lands for the purpose of construction of toll plaza at the proposed location is not only contrary to Rule 8 of the National Highways Fee (Determination and Rates and Collection) Rule, 2008, but also in violation of the general principal that acquisition should be made in a manner that causes minimum possible damage to infrastructure and after weighing interest of all affected parties."
12 In such circumstances referred to above, Ms. Jani, the learned counsel prays that there being merit in both her writ applications, the same be allowed and the impugned Notifications be quashed and set aside.
13 Mr. Harshil Dattani, the learned counsel appearing in the Special Civil Application No.19898 of 2019 submitted that he would adopt all the submissions canvassed by Ms. Megha Jani as referred to above and would not like to add anything more.
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● SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
14 Mr. Maulik Nanavaty, the learned counsel appearing for the
respondents has vehemently opposed all the three writ applications. Mr. Nanavaty would submit that none of the legal submissions canvased on behalf of the writ applicants are tenable in law. Mr. Nanavaty would submit that the writ applicants, in substance, have no grievance with regard to the project of the expansion of the Highway undertaken by the respondents. However, according to Mr. Nanavaty, the grievance of the writ applicants, in substance, is with regard to selecting a particular location for establishing a Toll Plaza, which, incidentally, happens to be on the land owned by the writ applicants.
15 Mr. Nanavaty would submit that it is the expert body which takes the final decision as to which particular place the Toll Plaza should be erected. It is submitted that in taking such decision, there is lot of engineering and technical aspects involved in the same.
16 Mr. Nanavaty would submit that the writ applicants actually wants the National Highway Authority of India to relocate the Toll Plaza to a different place. According to Mr. Nanavaty, the same is not possible having regard to the opinion of the experts.
17 Mr. Nanavaty invited the attention of this Court to few relevant averments made in the affidavitinreply filed on behalf of the respondents Nos.2 and 3. The relevant averments, upon which reliance is placed by the learned counsel appearing for the respondents, are as under:
"4 The expansion and development of the `Dwarka Khambhaliya Devariya' and `Dhrol Amran Maliya' sections of National Highway in Gujarat is one of the projects included in Phase 1 of Bharatmala Page 10 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT Pariyogna, the new umbrella program of the Government of India for the highway sector that focuses on optimizing the efficiency of the movement of goods and people across the country.
5 The project work is ordinarily comprised of two steps or stages one involves preparation of feasibility cum preliminary design by a technical consultant, and the second entails detailed design and construction. The Authority engaged M/s RITES as technical consultant for the preparation of a detailed project report for 02/04 laning with paved shoulder national highway configuration of DwarkaKhambhaliyaDevariya and Dhrol AmranMaliya road sections. M/s RITES is a government enterprise established under the aegis of the Indian Railways. It is a multi disciplinary consultancy organization in the field of transport, infrastructure and related technologies.
6 The technical consultant undertook a comprehensive study concerning technical, engineering, environmental, logistical, commercial and financial aspects of the project highway. It conducted engineering investigations, traffic sampling and analysis, traffic flow forecasts and examined other aspects relevant to assess and determine the technical, economical and financial viability of the project. The consultant evaluated various alignment options and suggested the best suitable option of expanding the highway on one side considering the existence of Narmada water pipeline on the other side of the existing highway. In so far as selection of location of toll plaza is concerned, the consultant proposed a toll plaza at Design Chainage 60+95061+97o (Km. 141+1oo 141+850) along DwarkaKhambhaliyaDevariy`a section of National Highway 151A.
7 The selection of a toll plaza can have a significant effect on both its operational performance as well as the commercial viability of the project highway. Therefore, consideration of major contributory issues is undertaken at the initial design stage to determine the optimum location. Some of the vital aspects relevant for choice and selection of location of toll plaza are:
land availability and land suitability;
stream of traffic on toll plaza;
visibility of approaching traffic;
horizontal and vertical alignment of mainline;
proximity to road junctions;
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C/SCA/17585/2019 JUDGMENT
free from risk of flooding and submergence;
economic assessment;
capital cost.
In the present case, the consultant examined all the relevant aspects and after due consideration selected the location for establishing the toll plaza.
8 The consultant observed that the existing available Right of Way is not adequate to accommodate the required number of toll lanes and ancillary facilities. Acquisition of additional land was therefore recommended by the consultant. The consultant noted that the stretch near the proposed location is suitable for providing steady stream of traffic. It was noted that there is an alternative road at Km. 147+2oo (State Highway 93 Salaya road) and at Km. 144+750 (towards Khambhaliya). These roads can be a cause for traffic diversion. Vehicles will take the alternative routes and thereby avoid passing through the plaza and paying user fee for use of the highway. At the proposed location the traffic stream will remain the same. The suggested location is leak proof, which again is a vital factor for commercial viability of the project.
The consultant remarked that the identified location falls in a straight stretch of the project road. This stretch is free from any sharp or acute horizontal curve and for other hindrance, including vegetation, to obstruct the visibility. The approaching traffic from both sides will have clear visibility of the plaza from large distance. For the purpose of visibility fer the approaching driver the toll plaza is to be treated as a `junction' and the immediate approach to a junction should be taken as that length of carriageway from a point 1.5 times the desirable minimum stopping sight distance upstream of the start of the approach zone to the end of the departure zone of the toll plaza. The consultant also remarked that there is no minor or major road junction and rail crossing in the stretch on either side of the selection location of toll plaza. Intersection of State Highway 93 at Km. 147+zoo and Khambhaliya road at Km. 144+750 are sufficiently away from the toll plaza. The consultant noticed that the topography of the area where the toll plaza is to be constructed is such that there is hardly any risk of water logging or flooding. The closest dam, Sihan dam, is located at Km. 135+500, and is thus sufficiently away from the location of toll plaza. The consultant after carefully examining and reviewing all the essential factors suggested that the toll plaza be established at Design Chainage 60+95061+97o (Km. 141+100 to 141+850).
8 I submit that the suggestions for selection of alternative location, including those made by the petitioners during the several meetings held by them or their representatives with the officials of the Authority and the consultant, were examined and evaluated by the consultant prior to Page 12 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT finalizing the present location for establishing the toll plaza. Any other location on the stretch of the highway was not found suitable, and the present location was found to be most ideal for establishing the toll plaza.
9 I say that a detailed project report was submitted by the technical consultant to the National Highways Authority of India. This report was independently studied, examined, analyzed and deliberated by the Authority. All suggestions and recommendations ranging from technical to engineering to financial and commercial aspect of the project highway were assessed and reassessed by the Authority. The proposed alignment, preliminary design, location of toll plaza, work flow and other aspects mentioned by the consultant in the report were discussed internally and deliberated by the Authority. The project proposal was thereafter placed before the Project Appraisal and Technical Scrutiny Committee. This Committee comprises of experts from NITI Aayog and Project and Finance Division of the Government of India in addition to officers from the Authority and the Ministry of Road Transport and Highways. The Committee undertook a thorough technical, financial and economical appraisal of the proposed project. On being satisfied, the Committee gives its approval for the project. Thereafter, the proposal was placed before the Standing Finance Committee chaired by the Secretary, Ministry of Road Transport and Highways for further and final appraisal of the project. The members of` the Committee discussed the technical aspects of the project, including the location of the toll plaza. After reasoned deliberation, the Standing Finance Committee recommended for approval of the project highway subject to the certain conditions. The conditions mentioned in the meeting do not pertain to the location of the toll plaza. Eventually the project was approved by the Government of India. A copy of the minutes of meeting of the Standing Finance Committee held on 14.01.2019 wherein the project highway was considered and recommended for approval is annexed herewith and marked as Annexure R1.
10 I say that the alignment of the highway and the selection of location of toll plaza has thus been extensively examined and studied at different levels by the expert committees of the Authority and the Government of India and has been cleared by them. At each level the team of experts in the field and possessing immense experience of road infrastructure and engineering have paid attention to the factors relevant to the construction of road, its alignment, design and selection of location and designing of toll plaza.
11 I submit that the choice and selection of location of toll plaza is in not arbitrary, unreasonable, illogical or otherwise not in consonance with provisions of law. I restate that the selection of location of toll plaza is reasoned and otherwise in accordance with law. Such selection, as done by an expert body, does not suffer from nonapplication of mind. The decision Page 13 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT is not arbitrary or unreasonable, and selection has been made after due consideration of all relevant factors relating to road engineering. Further, the location selected for establishing the toll plaza does offend any provision of law and otherwise does not suffer from any infirmity in law.
12 The petitioners have contended that selection of location of the toll plaza is violative of Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rule, 2008 in as much as the plaza is proposed to be established within a distance of 10 kilometers from the local town area limits. The said contention is devoid of any merit and rather suffers from an incorrect understanding of the law. Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 provides that "the executing authority or the concessionaire, as the case may be, shall establish a toll plaza beyond a distance of ten kilometers from a municipal or local town area limits". This provision is not absolute, and itself permits an exception in the proviso which provides that "the executing authority may, for reasons to be recorded in writing, locate 0r allow the concessionaire to locate a t0ll plaza within a distance of ten kilometers of such municipal or local town area limits, but in n0 case within five kilometers of such municipal 0r local town area limits". There is a further proviso which provides that "where a section of the national highway, permanent bridge, bypass 0r tunnel, as the case may be, is constructed within the municipal 0r town area limits or within five kilometers from such limits, primarily for use of the residents of such municipal or town area, the toll plaza may be established within the municipal or town area limits 0r within a distance of five kilometers from such limits". A bare reading of the provision shows that requirement that toll plaza should ordinarily be established beyond 10 kilometers of the municipal 0r local town area limits is not inflexible and permits setting up a toll plaza within a distance of 10 kilometers of municipal or local town area limits if there exists justifiable reasons. In the present case, the toll plaza is located at a distance of 7.5 kilometers from the local town area limit. The reasons for selection of the present location for establishing the toll plaza have been recorded by the Authority and find mention in the preceding paragraph of the present reply. L reiterate that the technical consultant in the first instance proposed establishment of toll plaza at Design Chainage 60+950 61+97o, corresponding to Km. 141+100 to 141+850. The Authority examined the suggestion of the consultant and after due consideration accepted the said suggestion as regards location of the toll plaza. Thereafter, the Ministry of Road Transport and Highways, Government of India also considered the aspect of location of toll plaza within 10 kilometers of the local town area limit and being satisfied with the reasons and justification offered by the Authority recommended the project highway.
13 I submit that decision of the consultant and thereafter the Page 14 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT
Authority and the Government to locate the toll plaza at Design Chainage Km. 60+95061+970 is bonafîde. The process leading to selection of location is reasoned, and not arbitrary as alleged in the petition. The selection has been made by experts in the field after due consideration of relevant factors. L submit that nothing has been averred by the petitioners in the petition to show as to how any particular has been omitted from consideration or that any irrelevant factor has been taken into consideration by the experts while making a reasoned decision as regards selection of location for establishing the toll plaza. I submit that from reading of the averments in the petition it does not appear that the petitioners themselves are equipped to go into the rationale of such decision.
14 I submit that the contention of petitioners that the toll plaza is located at a distance of 2.5 kilometers from the local town area limit is factually incorrect and denied. I restate that the toll plaza is proposed at a distance of 7.5 kilometers from the local town area limit. I submit that the contention of petitioners that government land is available around the vicinity of the selected location and therefore the plaza should be shifted to such location is unsubstantiated and otherwise not sustainable in law. The petitioners, as submitted earlier, do not appear to be possessing significant engineering knowhow and do not seem to have considered or even˙ reflected upon other aspects relevant to selection of toll plaza. The petitioners undoubtedly are not experts, and again their suggestion is not based on any material or justifiable basis.
15 I submit that the selection of toll plaza does not offend the guidelines issued by the Ministry of Road Transport and Highways, Government of India, as appended to the petition at page 35 (Annexure E). I submit that the toll plaza has not been "established in deviation to the provisions of the NH Fee Rule 2008" nor is an attempt being made to seek "subsequently approval of the Competent Authority". In the present case, the toll plaza is proposed to be constructed, and has not yet been established. There exists justification for establishing the toll plaza within 10 kilometers of the local town area limit. This aspect has been noticed, considered and approved by the Government of India. Therefore, reliance placed on the guidelines is absolutely misplaced and, in any case, has not relevance to the fats of the present case."
18 Mr. Nanavaty submitted that the fixation of the alignment and identification of the spot for location of the Toll Plaza are the matters within the domain of the authority and the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, may not Page 15 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT sit in appeal over such decisions taken by a body of experts.
19 Mr. Nanavaty, in the last, very emphatically submitted that the selection of Toll Plaza does not violate Rule 8 of the Rules or any other provisions of the Act in any manner. Mr. Nanavaty also submitted that the objections raised by the writ applicants under Section 3(C) of the Act were duly considered and overruled.
20 In such circumstances referred to above, Mr. Nanavaty prays that there being no merit in the writ applications, those be rejected.
● ANALYSIS:
21 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the writ applicants are entitled to any of the reliefs, as prayed for, in these writ applications.
22 Before adverting to the rival submissions canvassed on either side, we must look into few relevant provisions of the Act and the Rules.
23 Sections 3A, 3C and 3D, which have bearing on this case, read as under:
"3A. Power to acquire land, etc. (1) 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 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 Page 16 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT vernacular language.
3C. Hearing of objection, (1) Any person interested in the land may, within twenty one 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 subsection, legal practitioner has the same meaning as in clause (i) of subsection (1) of section 2 of the Advocates Act, 1961 (25 of 1961).
(3) Any order made by the competent authority under sub section (2) shall be final.
3D. Declaration of acquisition. (1) 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 sub section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land a notification has been published under 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 Page 17 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT have any effect:
Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under 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."
24 Rule 8 of the Rules, 2008 reads thus:
Rule 8 of the said Rules may be conveniently extracted hereinbelow:
"8. Location of toll plaza.--(1) The executing authority or the concessionaire, as the case may be, shall establish a toll plaza beyond a distance of ten kilometres from a municipal or local town area limits: Provided that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of ten kilometres of such municipal or local town area limits, but in no case within five kilometres of such municipal or local town area limits:
Provided further that where a section of the national highway, permanent bridge, bypass or tunnel, as the case may be, is constructed within the municipal or town area limits or within five kilometres from such limits, primarily for use of the residents of such municipal or town area, the toll plaza may be established within the municipal or town area limits or within a distance of five kilometres from such limits.
(2) Any other toll plaza on the same section of national highway and in the same direction shall not be established within a distance of sixty kilometres:
Provided that where the executing authority deems necessary, it may for reasons to be recorded in writing, establish or allow the concessionaire to establish another toll plaza within a distance of sixty kilometres:
Provided further that a toll plaza may be established within a distance of sixty kilometres from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, bypass or tunnel."Page 18 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021
C/SCA/17585/2019 JUDGMENT 25 The scheme of acquisition enshrined in the above reproduced
provisions makes it clear that once the Central Government is satisfied that any land is required for the building, maintenance, management or operation of a national highway or part thereof, then, it shall declare its intention to acquire such land by issuing a notification in the official Gazette giving brief description of the land. The substance of the notification is also required to be published in two local newspapers of which one has to be in a vernacular language. Any person interested in the land can file objection within 21 days from the date of publication of the notification in the official Gazette. Such objection is required to be made to the Competent Authority in writing. Thereafter, the Competent Authority is required to give the objector an opportunity of hearing either in person or through a legal practitioner. This exercise is to be followed by an order of the Competent Authority either allowing or rejecting the objections. Where no objection is made to the Competent Authority in terms of Section 3C(1) or where the objections made by the interested persons have been disallowed, the Competent Authority is required to submit a report to the Central Government, which shall then issue a notification in the official Gazette that the land should be acquired for the purpose or purposes mentioned in Section 3A(1). On publication of declaration under Section 3D(1), the land vests absolutely in the Central Government free from all encumbrances. Subsection (3) of Section 3D provides that where no declaration under subsection (1) is published within a period of one year from the date of publication of notification under Section 3A(1), the said notification shall cease to have any effect. By virtue of proviso to Section 3D(3), the period during which any action or proceeding taken in pursuance of notification issued under Section 3A(1) remains stayed by a Court shall be excluded while computing the period of one year specified in Section 3D(3).Page 19 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021
C/SCA/17585/2019 JUDGMENT ● SCOPE OF JUDICIAL REVIEW IN LITIGATIONS INVOLVING PUBLIC PROJECTS:
26 We may refer to and rely upon a decision of the Supreme Court in the case of Union of India vs. Dr. Kushala Shetty and others reported in AIR 2011 SC 3210, wherein the following observations have been made in para 24:
"Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to 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."
27 The Supreme Court in Ramniklal N. Bhutta and Another vs. State Of Maharashtra and others [1997(1) SCC 134] while dealing with the challenge made to the acquisition proceeding initiated under NH Act, 1956, held as follows:
"Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of allround economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent.Page 20 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021
C/SCA/17585/2019 JUDGMENT We propose to compete with china economically, We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognized on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition o f land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power or grant in stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance o f interests of justice and not merely on the making out of a legal point. And in the matter o f land acquisition for public purposes, the interests of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest visavis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account o f noncompliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter o f balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
28 A Coordinate Bench of this Court to which one of us (J.B. Pardiwala, J.) was a party had a occasion to consider a similar issue while deciding the Writ Petition (PIL) No.99 of 2012 [Rajubhai Shah vs. State of Gujarat]. We quote the relevant observations:
"There cannot be any debate in so far as the preservation of environment and maintenance of ecological balance is concerned. The Constitution of India mandates under Article 48A that, the State Government shall Page 21 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A(g) enjoins to protect and improve the natural environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. However, in the present case, a peculiar situation has cropped up. If the trees are not permitted to be felled, then under such circumstances a very big project of expansion of highway which is also in public interest would get jeopardize. We tried our best to examine the matter with a view to see as to whether the trees could be saved in any manner or not.
We cannot overlook the fact that this Court is not an expert in the field of infrastructure. From the facts which we have been able to gather, it is not possible to retransplant a tree which is uprooted. It is just not feasible to retransplant 10,000 trees, more particularly, when the cost of such retransplantation is approximately Rs.10,000=00 per tree. We have also been told that retransplantation is possible only of such trees whose width is not more than 65 cms. In the present case, the trees which have been marked for being felled are mostly of the width of more than 90 cms. And some of them are of more than 250 cms. Apart from this, there are few species of trees which, if uprooted and then retransplanted, would die. Under such retransplantation, the same would be wasted.
In any view of the matter, we are of the opinion that expansion of National Highway No.8B and 8D is also a very important project in public interest which could not be stopped or put to a standstill only because there are trees standing on such a road. We have been informed by learned counsel appearing for the respondents that three times the number of trees which are going to be felled will be planted in a different area to maintain the ecological balance. This is suggestive of the fact that more than 30,000 trees will be planted at a place where water and land is available with good soil so that they may not die and grow easily.
We have also been told that as per the initial proposal, a total number of 18,056 trees were within the proposed alignment, out of which 10,951 trees have been saved by balancing the alignment. We are quite convinced by the fact that the respondents have taken all due care to see that as many trees as possible are saved and three times the number of trees which are going to be felled would be planted at a different place."
29 Thus, the ratio discernible from the aforesaid case laws is that the decision taken by a body of experts should not ordinarily be interfered unless such decision suffers from any palpable legal infirmity or illegality Page 22 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT or is patently unreasonable. It is settled legal position that this Court exercising power of judicial review would not interfere with the decision or discretion exercised by an authority, unless it is shown that the decision was wholly arbitrary and actuated by bias and mala fides. In the case on hand, the writ applicants have not alleged any bias or malafide, but would state that the action of the respondent in shifting the Toll Plaza to the present location amounts to malice in law. This argument steams out of the proposition advocated by the writ applicants that the location of the Toll Plaza contravenes Rule 8 o f the Rules.
30 Bearing the aforesaid ratio in mind, we now proceed to look into the matter on merits.
31 Mr. Nanavaty is right in his submission that although the writ application has been filed with a prayer to quash and set aside the Notifications issued under Sections 3A and 3D respectively of the Act for acquisition of land for the purpose of expansion of the existing two laning Highway into a four laning Highway, yet essentially questions the choice of a particular location for establishing the Toll Plaza by the authority.
32 It is not the case of the writ applicants that the land is being acquired to be used for a purpose other than the purpose of building, maintenance, management or operation of a National Highway.
33 It appears from the materials on record that the award came to be declared in January 2020. It is not in dispute that compensation of higher amount than prayed for by the writ applicants has been awarded by the competent authority. The record reveals that out of 78 persons whose lands (198 plots) have been acquired in the village, 54 persons Page 23 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT have accepted the award (reserving their right to claim even more compensation than awarded) have handed over the vacant possession of the acquired land. It further appears that 14 of such 54 persons are the writ applicants in the present litigation.
34 The selection of location of the Toll Plaza has been done by the consultant - M/s. RITES (a Government enterprise establishment under the aegis of Indian Railways. The consultant has selected the location after taking into consideration the relevant aspects as enumerated in para 7 of the affidavitinreply and has assigned cogent reasons in support of his decision as stated in para 8 of the affidavitinreply filed on behalf of the respondents Nos.2 and 3 respectively. It appears that the choice of location, thereafter, came to be independently examined and approved by the authority i.e. the Project Appraisal and Technical Scrutiny Committee of the Government of India and the Standing Finance Committee, Government of India.
35 The alignment of highway and selection of location has been examined, studied and analyzed extensively at different locations by the consultant, technical staff of the Authority, and expert committee of the Government of India. Such decision of experts should not be interfered by the High Court, particularly in the absence of any material indicating that the choice of location for toll plaza is arbitrary or unreasonable or suffers from any infirmity on account of nonconsideration of any relevant engineering or technical aspect.
36 We also do not find any merit in the vociferous submission of the learned counsel appearing for the writ applicants that the selection of location violates Rule 8 of the Rules, 2008. Rule 8 provides that Page 24 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021 C/SCA/17585/2019 JUDGMENT ordinarily (and as far as possible) a Toll Plaza should be established beyond 10 kilometers from the municipal or local area limits. The Rule is not absolute or inflexible, but itself permits setting of toll plaza within a distance of 10 kilometers for justifiable reasons. The selected location is at a distance of more than 05 kilometers from the local area. Such selection, as per the Rules, require the Authority to record reasons in writing for such selection. In the present case, valid reasons have been given by the Authority for setting up the Toll Plaza within distance of 10 kilometers from the local area limits. Such reasons, which have been reduced into writing in the office file notings, have been examined at various levels, and have been found to be sufficient, from the engineering, technical, logistical and commercial reasons, so as to justify the selection of location.
37 It has not been categorically averred in the memo of the writ application that the toll plaza is located at a distance of less than 05 kilometers, and therefore offends the proviso to Rule 8. No official record has been produced by the writ applicants to indicate that the exact distance of the selected location for toll plaza is less than 05 kilometers. All that has been stated in the memo of the writ application is that "the distance between the beginning point of the area of 700 meters which is presumably the area of the proposed toll plaza and the RTO situated in Jam Khambhaliya town where the highway bypasses the town is approx. 2.6 km."
38 It is settled law that the party must lay factual foundation and claim relief on the basis of such facts, and also specifically plead its case and produce necessary material to substantiate the statements made in the petition.
Page 25 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021C/SCA/17585/2019 JUDGMENT 39 Assuming for the moment that the toll plaza is located within a
distance of 05 kilometers, even then it does not violate the Rules. It is not the case of the writ applicants that they are not being allowed to use the existing 02 lane highway and/or will not be allowed to use the expanded 04 lane highway. The Highway, as of now and even post expansion, would be available for the use of the residents of the town. Apart from the long distance traffic plying on the highway, the bypass would principally and primarily be used by the residents of the town.
40 It appears that the present toll plaza is at a distance of 65 kilometers from one another toll plaza located on the same section and in the same direction of the National highway. The other toll plaza located at a distance of 37.2 kilometers at the Bed is not located on the National highway. It is a toll plaza located on the State Highway SH
125. It is under the management of the State Government. Therefore, there is no violation of Rule 8(2) of the Rules, as argued before us.
41 In the overall view of the matter, we are convinced that no case is made out by the writ applicants for interference in exercise of our writ jurisdiction under Article 226 of the Constitution of India.
42 In the result, all the three writ applications fail and are hereby rejected.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) CHANDRESH Page 26 of 26 Downloaded on : Mon Feb 22 01:45:45 IST 2021