Punjab-Haryana High Court
Rlf Industries Limited And Others vs National Highway Authority Of India And ... on 20 January, 2011
Bench: Jasbir Singh, Augustine George Masih
C.W.P.No.16619 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision:- 28 .01.2011
C.W.P.No.16619 of 2009
RLF Industries Limited and others ....Petitioner(s)
vs.
National Highway Authority of India and others ....Respondent(s)
C.W.P.No.17780 of 2009
M/s Hilton Rubbers Limited ....Petitioner(s)
vs.
Union of India and others ....Respondent(s)
C.W.P.No.19950 of 2009
Jagdish Kumar Jain and others ....Petitioner(s)
vs.
Union of India and others ....Respondent(s)
C.W.P.No.1021 of 2010
Jagbir Singh ....Petitioner(s)
vs.
Union of India and others ....Respondent(s)
C.W.P.No.1740 of 2010
M/s Jashanmal Devi Chand and sons Private Limited
and others ....Petitioner(s)
vs.
National Highway Authority of India and others ....Respondent(s)
C.W.P.No.16619 of 2009 -2-
C.W.P.No.6207 of 2010
M/s Spring Water Properties Private Limited & anr. ....Petitioner(s)
vs.
National Highway Authority of India and others ....Respondent(s)
C.W.P.No.6282 of 2010
M/s T.G.S. Engineering Industries and another ....Petitioner(s)
vs.
National Highway Authority of India and others ....Respondent(s)
C.W.P.No.10660 of 2010
Varinder Singh ....Petitioner(s)
vs.
Union of India and others ....Respondent(s)
C.W.P.No.14108 of 2010
M/s Hilton Rubbers Limited ....Petitioner(s)
vs.
National Highway Authority of India and others ....Respondent(s)
C.W.P.No.16451 of 2010
Contitech India Private Limited ....Petitioner(s)
vs.
Union of India and others ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- S/Sh.Sanjiv Sharma, Sr.Advocate with Shekhar Verma,
Shailendra Jain, P.K.Mutneja, H.P.Verma, P.S.Chhinna,
C.W.P.No.16619 of 2009 -3-
Advocates, for the petitioners.
Mr.Salil Sagar, Sr.Advocate with
Mr.Vikas Soni & Mr.Samarth Sagar, Advocates,
for Union of India & National Highway Authority of India.
Ms.Palika Monga, DAG, Haryana.
Mr.Kamal Sehgal, Standing Counsel
for HSIIDC.
***
Augustine George Masih, J.
By this order, we propose to decide C.W.P.Nos.16619, 17780& 19950 of 2009, 1021, 1740, 6207, 6282, 10660, 14108 and 16451 of 2010 as common questions of fact and law are involved therein.
In these writ petitions, challenge has been posed to The National Highways Act, 1956 (Amendment Act No.16 of 1997) (hereinafter referred to as NH Act) (Annexure P-20) being ultra vires, arbitrary, unconstitutional and violative of Articles 14, 16 and 19 of the Constitution of India, with a further prayer for issuance of a writ of Certiorari for quashing the notifications dated 30.5.2008 issued under Section 3 (A) (1) (Annexure P-10), 27.5.2009 issued under Section 3 (D) (1) and (2) (Annexure P-16) and 12.8.2009 issued under Section 3 (A) (1) (Annexure P-17) of the NH Act.
With the consent of counsel for the parties, C.W.P.No.16619 of 2009 R.L.F. Industries Ltd. And others vs. National Highway Authority of India and others, is taken as a lead case and the facts are, thus, taken from the said writ petition.
Petitioner No.1 is a manufacturing unit situated on three contiguous plots falling in Khasra Nos.21/5, 21/6, 21/7, 21/8 and 21/26. All C.W.P.No.16619 of 2009 -4- the three plots are being used by petitioner No.1 for its production, storage and residence of factory workers which has super-structures built thereon. After purchase of agricultural land in the year 1982, Change of Land Use (hereinafter referred to as CLU) was applied for. On 17.4.1989 (Annexure P-1), Director, Town & Country Planning Department, Haryana, accepted the application and granted permission for CLU for the above plots, totalling 20 kanals and 10 marlas. On 17.10.1990, the District Town Planner, Sonepat, approved building plan of petitioner No.1 under the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (Annexure P-2). On 11.10.1991, the Directorate of Industries, Haryana issued a permanent registration certificate certifying it to be a small scale industry (Annexure P-3). Petitioner No.1 duly got registered itself with the Central Excise Department, Sales Tax Department and under the VAT Act. Trader Identification Number (TIN) was also assigned to the petitioner. Land of the petitioners is located by the side of Grand Trunk Road (G.T.Road) at village Badkhalsa near Karnal. The entire area on both sides of the GT Road is an industrial hub. In the year 2005, respondents constituted a Monitoring Committee for planned development of Eastern Peripheral Expressway (for short EPE) and Western Peripheral Expressway which is popularly known as Kundli Manesar Palwal Expressway ( hereinafter referred to as WPE/KMPE). The Authority decided that inter-section of these two expressways should be planned at K.M. Stone No.39.725 on the National Highway No.1 (for short NH-1) i.e. G.T. Karnal Road. As per this proposed plan, almost the entire industrial hub in the area was left out of the purview of acquisition. Haryana State Industrial Infrastructure Development Corporation ( for short HSIIDC ) i.e. C.W.P.No.16619 of 2009 -5- respondent No.7 pressed that the proposed inter-section should be at K.M. Stone No.36.083 and not at Km. Stone No.39.725. The reason assigned for such change was that HSIIDC had already spent a few crores of rupees for acquisition of land taking Km. Stone No.36.083 as the intersection point with NH-1 and on the insistence of the Government of Haryana, the proposed intersection was finalized at Km. Stone No. 36.083. This exercise was done arbitrarily and with a mala fide intention to save vacant land belonging to influential persons.
The National Highway Authority of India (for short NHAI) i.e. respondent No.1 issued notification under Section 3(A) (1) of the NH Act on 30.5.2008 (Annexure P-10) for acquisition of land adjoining NH-1 for construction of intersection of Eastern and Western Expressways. The public purpose mentioned therein was for construction of "Eastern Peripheral Expressway". The intersection contained four loops and the land of the petitioners came within loop No.4. Three plots being used by petitioner No.1 are outside the proposed loops and it is only some area of plot situated in khasra No.216 which is required for raising pillars to support the elevated road/loop No.4. Area falling in Khasra Nos.21/5 and 21/7 is not required at all for construction of loop No.4 or for the elevated road. Objections were invited and petitioners filed their objections under Section 3 (C ) (1) of the NH Act wherein they requested for the release of their land from the proposed acquisition. It was submitted that it is a running industry and has all valid permissions from statutory authorities to run its operations. Alternatively, it was requested that the area required for construction for elevated road/loop No.4 which falls under Khasra No.21/6 be acquired and rest of the land upon which the unit is situated falling in C.W.P.No.16619 of 2009 -6- Khasra No.21/5 and 21/7 be released from proposed acquisition. Similar treatment was prayed for as in the case of Toyo Springs Ltd. where only the minimum required area falling under the proposed road stood acquired and the rest was released. Objections were considered by respondent No.1-NHAI, 2-Union of India and 4-Competent Authority-cum-District Revenue Officer, Sonepat. The same were partly accepted and notification dated 27.5.2009 (Annexure P-16) under Section 3 (D) (1) and (2) of the NH Act was issued vide which only a small portion of land of the petitioners falling in Khasra No.21/6 was sought to be acquired, leaving rest of the petitioners' land falling in Khasra Nos.21/5 & 21/7.
Subsequently, another notification under Section 3(A)(1) of the NH Act was issued on 12.8.2009 (Annexure P-17) by respondent No.1- NHAI. In this notification, the purpose mentioned was the same as in previous notification dated 30.5.2008 (Annexure P-10). Once again, the respondents No.1, 2 and 4 notified land of the petitioners for acquisition situated in Khasra Nos.21/5 & 21/7. This notification had come merely after 2 months from the earlier notification dated 27.5.2009 issued under Section 3(D)(1) and (2) of the NH Act vide which this very land was left out from acquisition on an objection filed by the petitioners. No reason for re- notifying the land of the petitioners for the same purpose has been given in the notification. Petitioners again filed objections on 26.8.2009 (Annexure P-18). They hired the services of highly specialized Engineers-cum- Consultants and prepared three alternative options for the proposed intersections which were more cost effective and beneficial to the State. It was pleaded that it would be impossible for petitioner No.1 to survive and revive if it is uprooted from the present site, as the petitioner being a small- C.W.P.No.16619 of 2009 -7- scale labour intensive industry fulfills social objective and gives employment to 35 workers and in such a situation their families would be uprooted and ruined.
As per the petitioners, the entire proposed project has been arbitrarily planned. On one side of the GT Karnal road (NH-1), the respondents have invoked NH Act for acquisition of land and on the other side of the land i.e. barely 100 feet across, the Land Acquisition Act, 1894 (for short 'the LA Act) has been invoked for acquiring the land. Both the areas fall in the State of Haryana and admittedly only road dividing the lands is NH-1. By invoking provisions of two separate enactments in the same area, identically situated persons located just across the road are dealt with differently under different Statutes. Different parameters are being applied not only for acquisition of the land but the market value is being assessed differently. While under the NH Act, the provisions of the LA Act are not applicable, however, they are being deprived of the benefit of solatium and interest as provided in Sections 23 & 28 of the LA Act. This has been pleaded on the basis of the fact that the provisions of the LA Act are not applicable to the NH Act as per Section 3 and Section 3 (J) & 3(G) of the NH Act being ultra vires the Constitution of India in so far as they deny solatium and interest to the land owners.
Apart from this, it has been pleaded that the petitioners whose lands have been acquired under the NH Act would be deprived of the benefit of the policy of rehabilitation and re-settlement of land owners-land acquisition oustees as notified by the State of Haryana vide notification dated 7.12.2007. The compensation awarded for compulsory acquisition of property must be just and equivalent to the value of the land of which a C.W.P.No.16619 of 2009 -8- person is deprived of and merely because two enactments have been pressed into service, the similarly placed persons cannot be deprived of the benefit to which the others are entitled to. It is further the contention of some of the petitioners in this bunch of writ petitions that since the land was earlier left out of acquisition when the land was acquired for the Rajiv Gandhi Education City for the reason that they were running industrial units or had construction thereon they would be deprived of the benefit of the policy of the Government of Haryana whereas the land owners whose land was acquired under that notification which was subsequently transferred to the EPE would be entitled to the benefit of the policy framed by the State of Haryana, thereby amounting to blatant discrimination.
On the basis of above pleadings, prayer has been made for quashing of the impugned notifications and the provisions of the NH Act.
Respondents No.1 and 2, on the other hand, have submitted that in terms of Section 4 of the NH Act and the Rules made thereunder, National Highways vest in the Union of India and the NHAI acts as the Executing Agency in respect of stretch of NH vested in or entrusted to it by the Central Government. The EPE stands notified as NH NE-II vide notification dated 30.3.2006 and was entrusted to NHAI vide the same notification. Thus, the stretch of NH-1 and NH-NE-II or Eastern Peripheral Expressway (EPE ) falling in the State of Haryana is entrusted to NHAI. The present land acquisition relates to the junction of inter-change falling under the EPE and has been notified under NH Act. The land acquisition for inter-change on NH-1 is a part and parcel of land acquired for EPE. In order to provide by-passes/linkages to all the National Highways outside the thickly built up areas of Delhi, peripheral expressways around Delhi had C.W.P.No.16619 of 2009 -9- been under consideration since long. The western half of this bye-pass road linking NH-1 at Kundli in the North and NH-2 near Palwal in the South via NH-10 and NH-8 along the Western periphery of Delhi has been designated as Western Peripheral Expressway (WPE/KMPE). The eastern part of this bye-pass road linking NH-1 at Kundli in the North to NH-2 near Palwal in the South via NH-58, NH 24 and NH 91 on the eastern side of Delhi has been designated as Eastern Peripheral Expressway (EPE). The land in issue is situated near NH-1 at Km. 36.083 where the interchange junction has to be constructed as per the approval of the Monitoring Committee constituted by the Hon'ble Supreme Court.
Writ Petition (Civil) No.13029 of 1985 titled as M.C.Mehta vs. Union of India and others is pending in the Hon'ble Supreme Court of India which is seized of the matter of construction and implementation of the projects, namely, EPE and WPE/KMPE. These two projects i.e. EPE & WPE/KMPE were conceptualized in terms of the order of the Hon'ble Supreme Court, in particular that of 11.2.2005, directing the bypassing of the non-destined traffic to Delhi and to ensure that the said traffic do not enter in the territory of National Capital Territory of Delhi. For timely implementation of these two projects, a Monitoring Committee was constituted vide order dated 18.8.2005 by the Hon'ble Supreme Court. In terms of the aforesaid order, the Monitoring Committee was to decide with respect to the technical, financial or any other matter in relation to projects in question i.e. development of WPE/KMPE and EPE. On 21.10.2005, the Monitoring Committee in its meeting directed that the alignment of the EPE be decided in such a way that starting and end points of EPE should meet at the same point as that of WPE/KMPE. In the meeting of the Monitoring C.W.P.No.16619 of 2009 -10- Committee held on 10.12.2005, it was informed that it has been decided jointly that the starting point of EPE and WPE/KMPE should be at Km. 39.725 of NH-1 subject to certain formal clearance of the Government of Haryana. However, in the meeting of the Monitoring Committee held on 25.1.2006, the representative of the Government of Haryana wanted the matter to be reviewed with respect to the starting point. Subsequently, during the Meeting of the Monitoring Committee held on 11.3.2006, Government of Haryana insisted through its Chief Secretary that they had already acquired land considering starting point of WPE/KMPE as Km. 36.083 of NH-1 and had already signed Concession Agreement with the Concessionaire for WPE/KMPE and that the land on eastern side has already been kept reserved by Government of Haryana which they would hand over to NHAI for development of EPE. The Monitoring Committee then on deliberations decided that the starting point of EPE & WPE/KMPE shall be from Km. 36.083 of NH-1. Accordingly, the starting point of EPE and WPE/KMPE was determined and decided to be at Km. 36.083 and not at Km. 39.725 of NH-1. It was also decided in this meeting that the interchange on NH-1 at this location shall be included in the scope of work of WPE/KMPE and the interchange at the other end of EPE & WPE/KMPE on NH-2 i.e. at Palwal shall be included in the scope of work of EPE. The interchange at NH-1 should be taken up by Government of Haryana and the design prepared for interchange should be submitted to NHAI for obtaining its acceptance. Similarly, the design of interchange on NH-2 finalized by NHAI, would be submitted to the Government of Haryana for obtaining its acceptance. An elaborate exercise has been done before finalization of the alignment and the location of the interchanges with the crossing roads so as C.W.P.No.16619 of 2009 -11- to minimize structures, trees and other environmentally sensitive areas. Despite best efforts, acquisition of some of these cannot be avoided in the length of 135 Kms. of EPE. It is well settled principle of law that public interest shall prevail over private interest and the present project being of national importance, shall be benefitting people travelling on it and in particular, the traffic to and from the Northern States besides local public living alongside the said Highway. The interchange has been designed keeping in view the traffic safety future developments and the technical aspect thereof which cannot be, at this stage, changed or re-designed. The aspects of geometric designs, such as, radius of curve, gradient, speed etc. has to be taken note of. It is denied that the project has been arbitrarily planned. The decision has been taken by the Monitoring Committee constituted under the orders of the Hon'ble Supreme Court which has been empowered to take all decisions whether technical, financial or any other matter relating to both the Expressways in question. Due deliberation has taken place between the interested parties and thereafter the project has been finalized. All consideration has been given with respect to approval of design of interchange as per recommendations of Indian Roads Congress and Guidelines of Ministry of Roads, Transport and Highways ( MoR, T&H), Government of India.
As far as challenge to the provisions of NH Act (Amendment Act 1997) is concerned, it has been pleaded that a Division Bench of this Court in CWP No.1146 of 2005 titled as M/s Golden Iron and Steel Forgings vs. Union of India and others, decided on 28.3.2008 has upheld the same and has held with regard to only Sections 3(J) and 3( G) of the NH Act as ultra vires the Article 14 of the Constitution of India in so far as they C.W.P.No.16619 of 2009 -12- deny solatium and interest to the land owners. Further direction has been issued that all acquisitions made under the NH Act would necessarily have to grant solatium and interest in terms similar to those contained in Section 23(2) and Section 28 of the LA Act. An SLP preferred against the said order is pending before the Hon'ble Supreme Court.
Government of Haryana has decided to acquire land falling on western side of the NHAI under the LA Act which is part of the WPE/KMPE or Kundli Manesar Palwal Expressway. The land for the EPE is being acquired under the NH Act and the land for the interchange of NH-1 is a part and parcel of the land required for EPE and, therefore, is being acquired under the NH Act. The compensation to the petitioners shall be paid as per the provisions of this Act and the provisions of the NH Act have not been enforced with a view to pay lesser compensation to the land owners which is perfectly legal and valid and totally justified in the light of the decision taken by the Monitoring Committee as constituted by the Hon'ble Supreme Court. The action is legal and valid and thus is not violative of Articles 14, 19 and 300-A of the Constitution as alleged by the petitioners. The allegation of mala fide with an intention to benefit some land owners, has been denied. The benefit of the policy, as applicable to the State of Haryana, and notified by it, cannot be enforced qua the NHAI as the acquisition has been made under the NH Act. Accordingly, it has been prayed that the writ petitions deserve to be dismissed.
State of Haryana has also taken a similar stand and justified the location of the loop at Km. 36.083 of NH-1.
As regards discrimination with regard to the non-grant of C.W.P.No.16619 of 2009 -13- benefit under the policy of rehabilitation and resettlement of land owners- land acquisition oustees as notified by the State of Haryana on 7.12.2007, it has been pleaded that as per the policy, no alternative industrial plot can be allotted. The policy of paying annuity is only applicable to cases where land acquisition is by the Government of Haryana. The plots to be allotted by the Haryana Urban Development Authority (for short 'the HUDA') and the HSIIDC are only for residential purposes and that too, where the land is acquired by HUDA or HSIIDC, as the case may be. The said policy would not be applicable to the case of the petitioners and they would not be entitled to the said benefit. Accordingly, prayer has been made for dismissal of the writ petitions.
Counsel for the petitioners has vehemently pressed the claim of the petitioners with regard to the arbitrary and mala fide shifting of the intersection point of the EPE and WPE/KMPE at NH-1 from Km. Stone No.39.725 to Km. Stone No.36.083. He has contended that the alignment has been purposely made in such a manner that some land holders are not affected by the acquisition of the land. It has been contended that by shifting the intersection point from 39.725 to 36.083, the visual impact of the land belonging to Ansals would be enhanced. The slip road has been shifted with an intention to benefit Toyo Springs Ltd. He further contends that three options which have been given by the petitioners for the design of the loop are much more beneficial to the respondents but they have not been considered at all. He has very fairly conceded that the challenge to the vires has already been decided on 28.3.2008 by the Division Bench of this Court in C.W.P.No.11461 of 2005 titled as M/s Golden Iron & Steel Forging vs. Union of India & others decided on 28.3.2008. He has C.W.P.No.16619 of 2009 -14- pressed into service the discrimination which has been meted out to the petitioners merely because the land is being acquired under the NH Act as they would be deprived of the benefit of the rehabilitation policy of the State of Haryana. They would neither be entitled to the annuity nor allotment of plots which they would have been entitled to had the acquisition been under the LA Act by the State of Haryana. Counsel for the petitioners have in support of their contentions relied upon the judgment of the Hon'ble Supreme Court in the cases of State of U.P. vs. Smt.Pista Devi and others, AIR 1986 SC 2025, Northern India Caterers (Private) Ltd. and others vs. The State of Punjab and others, 1967 (3) SCR 399, M.C.Mehta vs. Union of India and others, (1996) 4 SCC 750, Special Land Acquisition Officer, UK Project vs. Mahaboob and another, (2009) 14 SCC 54.
Per contra, counsel for the respondents have also not contested the fact that a Division Bench of this Court in C.W.P.No.11461 of 2005 M/s. Golden Iron & Steel Forging's case (supra) has upheld the vires of the provisions of the NH Act except as held therein. It has been contended that the projects of EPE and WPE/KMPE are being given effect to in the light of the directions issued by the Hon'ble Supreme Court. The intersection point at Km..36.083 has been fixed after due deliberations by the Monitoring Committee keeping in view the survey which has been conducted in this regard by the Concessionaire of HSIIDC. The Monitoring Committee has taken its decision keeping in view the totality of the facts and circumstances of the case and a practical approach has been followed. No change has been brought about in the location of the intersection under the influence of any person or authority. C.W.P.No.16619 of 2009 -15- The spot plan of interchange has been finalized after several meetings of the NHAI and its consultants and HSIIDC and its independent consultant and the interested parties. On the eastern side of NH 1, land measuring 23 acres, 4 kanals 16 marlas required for interchange has been transferred from HUDA out of the land acquired by it for Rajiv Gandhi Education City. Land measuring 3 acres 1 kanal 16 marlas has been transferred from Haryana Health Department at village Badkhalsa, District Sonepat. Land measuring 1 acre 1 kanal belonging to Moti Lal Nehru School of Sports, Rai, has been transferred from Sports and Youth Welfare Department, Haryana. Land measuring 16.5 hectares required for this interchange on eastern side of NH-1 being part of EPE is being acquired under the NH Act through the Ministry of Roads, Transport and Highways, Government of India. The land of the petitioners is essentially required for the project. The alternative plans submitted by the petitioners are not in consonance with the expressway standards and the decision has been taken keeping in view the traffic safety, future developments and every other aspect of the matter regarding designing and location of the intersection. As regards the difficulties which the petitioners may face because of acquisition of the land, it has been submitted that the project being of national importance which shall be benefitting people travelling on it and in particular traffic to and from the Northern States besides local public living alongside the National Highway, will have precedence over private interest as public interest must prevail. The petitioners cannot claim the benefit of rehabilitation policy of the State of Haryana as the land has not been acquired under the LA Act by the State of Haryana. There can be no discrimination as the policy in question of the State of Haryana does not C.W.P.No.16619 of 2009 -16- flow from the LA Act as such and in any case, the petitioners will not be entitled to benefit of alternative industrial plot as the policy only envisages allotment of residential plots and that too when the land is acquired by HUDA and HSIIDC which is not the case in hand.
Mr.Sehgal, appearing for the HSIIDC, has stated that no industrial plot has been allotted under the Oustees' quota of the acquired industries where land is required for Rajiv Gandhi Education City and, therefore, the petitioners cannot plead discrimination on this score. Accordingly, it has been argued that the writ petitions deserve to be dismissed.
We have heard counsel for the parties and with their able assistance have gone through the records of the case.
As regards challenge to the vires of the provisions of the NH Act, 1956 (Amendment Act No.16 of 1997) being violative of Articles 14, 16 and 19 of the Constitution, this will not detain us from deciding the matter as it has been submitted by the counsel for the parties that the vires of the Amendment Act have been upheld by a Division Bench of this Court in M/s. Golden Iron & Steel Forging's case (supra) C.W.P.No.11461 of 2005 decided on 28.3.2008. This Court while considering the vires of the National Highway Authority Act, 1956 (as amended vide Act No.16 of 1997) observed that the Parliament & State Legislatures have enacted Statutes that provide for compulsory acquisition of land for a public purpose. The nature of public purpose may vary as also the mode and manner of acquisition underlying every such statute but as regards the question of compensation, all such statutes provide for payment of market value or just compensation generally awarded under principles drawn from C.W.P.No.16619 of 2009 -17- or based upon principles contained in the LA Act. The Court proceeded to find an answer to the question whether public purpose can govern the amount of compensation while evaluating the vires of Section 3(J) of the NH Act which provides that nothing in the LA Act shall apply to the acquisition under the NH Act, thus, emphatically ousting even a remote possibility of granting of solatium and interest. In this process, various judgments of the Hon'ble Supreme Court were considered by this Court starting from State of West Bengal vs. Mrs.Bella Banerjee and others, AIR 1954 SC 170, P.Vajravelu Mudaliar vs. The Special Deputy Collector for Land Acquisition West Madras and another, AIR 1965 SC 1017, Balammal and others vs. State of Madras and others, AIR 1968 SC 1425, Nagpur Improvement Trust and another vs. Vithal Rao and others, AIR 1973 SC 689, Om Parkash and another vs. State of U.P. and others, AIR 1974 SC 1202, State of Kerala and others vs. T.M.Peter and another, AIR 1980 SC 1438, P.C.Goswami vs. Collector of Darrang, AIR 1982 SC 1214, Maharashtra State Road Transport Corporation vs. State of Maharashtra and others, AIR 2003 SC 1909, Savitri Cairae vs. U.P.Avas Evam Vikas Parishad and another, AIR 2003 SC 2725 and Panna Lal Ghosh and others vs. Land Acquisition Collector and others, AIR 2004 SC 1179.
On going through the above judgments in detail and discussing the same, the following principles have been culled out which read as follows:-
"Thus, the essential principles that emerge from a reading of the aforementioned precedents, are :-
(a) the public purpose shall not determine the C.W.P.No.16619 of 2009 -18- amount of compensation;
(b) it is immaterial whether land is acquired under one statute or another;
(c) different compensation cannot be granted to different land owners based upon a different public purpose;
(d) where, however, a statute denies solatium and interest to a landowner, the said statutory provision must satisfy the tests of a reasonable classification based upon an intelligible differentia and must disclose a rational nexus with the object sought to be achieved.
The question that would now merit consideration is whether the public purpose underlying the National Highways Act discloses a valid classification based upon an intelligible differentia as would enable us to hold that the provisions of the Act, do not suffer from the vice of discrimination in matters of payment of compensation vis a vis lands, acquired under the Land Acquisition Act."
Considering the submissions of the counsel for the parties in this regard, the Court held as follows:-
"We fail to discern any such distinction or
peculiarity in the public purpose underlying the
impugned statute as would validly enable us to hold that public purpose underlying the provisions of the impugned Act is so distinct or peculiar as can only be C.W.P.No.16619 of 2009 -19- achieved under the impugned statute so as to clothe it with the protective shield of a classification founded on an intelligible differentia, the differentia being such that it has a rational relation with the object sought to be achieved.
The only differences discernible in the impugned statute, vis.a.vis the provisions of the Land Acquisition Act are differences of procedures and provisions that operate post acquisition so as to enable the government to associate private entrepreneurs and access private capital for the construction etc of national highways i.e differences that have no relation to the public purpose, in so far as it concerns the acquisition of land or the rights of the landowner. What is acquired under the impugned statute is the entire bundle of proprietary rights vested in a landowner. There appears to be no distinction between the public purpose underlying the impugned statute and the Land Acquisition Act, as also between landowners who are divested of their property under the Land Acquisition Act or the impugned statute. The differences, in essence, arise from different procedure for acquisition and in addition the statutory power of the National Highway Authority, a post acquisition power to entrust the development and maintenance of national highway or a part thereof to a private party. These factors, in our considered opinion, do not have any rational nexus with C.W.P.No.16619 of 2009 -20- the object sought to be achieved, which remains the acquisition of proprietary rights in land or with the amount of compensation to be awarded. As to how such difference would justify payment of a lesser amount of compensation is incomprehensible. It would be necessary to reiterate that so as to infer a valid classification, the public purpose must be so different and distinct as to validly and justifiably inhere a classification that would be sufficient for a Court to uphold a different amount of compensation to be awarded for acquisition of land."
While considering the concept and grant of solatium, this Court held as follows:-
"Solatium is not a largesse or a mere subsidy that the State doles out to a hapless landowner in discharge of some benevolent exercise of governmental power. Solatium is an amount, paid by the State to an unwilling land owner, for compulsory appropriation of his property. The word solatium draws its meaning from the word "solace" that is comfort money given as a statutorily recognized gesture of conciliation for compulsorily depriving a land owner of his property. The importance of "solatium" cannot be over emphasized and any departure therefrom would, in our considered opinion, be justified only where the enactment discloses a reasonable classification for treating land owners C.W.P.No.16619 of 2009 -21- differently. Solatium forms an integral component of compensation and, therefore, can only be denied where the statute satisfies the tests of valid classification.
Difference in procedure would not govern rights of parties to compensation. The difference, as repeatedly emphasized herein before, must be such as would disclose a valid classification based upon an intelligible differentia and not mere differences of procedure. The public purpose must be such as cannot be achieved by resort to the provisions of the Land Acquisition Act and disclose such a distinct or peculiar object as could not be achieved under the Land Acquisition Act. We have carefully perused the Act, in our endeavour to understand the so called differentia sought to be pressed into service by counsel for the respondents and have made a concerted effort to understand their submissions but express our inability to determine any justification whether legal, factual or theoretical that would have us hold that the public purpose, underlying the amending Act constitutes a separate class and is so different from the public purpose under the Land Acquisition Act that denial of solatium and interest could be held to be based upon a valid classification and consequently a valid exercise of legislative power. We find no basis whether in the objects and reasons, in the written reply, the written submissions, as also from the assistance rendered C.W.P.No.16619 of 2009 -22- to hold anything other than that as the provisions of the Act do not provide for grant of solatium and interest, they suffer from the vice of discrimination and violation of the provisions of Article 14 of the Constitution and would, therefore, be held to be ultra vires."
While concluding, this Court held as follows:-
"We, therefore, strike down Section 3J and Section 3G of the Act as arbitrary, irrational and violative of Article 14 of the Constitution, in so far as they deny payment of solatium and interest and hold that landowners, who are compulsorily divested of their property under the impugned statute would henceforth be entitled to solatium and interest as envisaged by the provisions of Section 23 and Section 28 of the Land Acquisition Act.
As regards the other submissions as to the vires of the National Highways Act, the petitioners' contention that the Amending Act lays down a procedure for acquisition that is an unwarranted departure from the provisions of the Land Acquisition Act and is therefore, illegal and arbitrary, cannot be accepted. There is no rule of law that requires all statutes, providing for acquisition of land to follow the procedure, prescribed under the Land Acquisition Act. As long as the procedure prescribed for acquisition is just and fair and meets the requirements of the expression "authority of law" appearing in Article 300A of the Constitution, C.W.P.No.16619 of 2009 -23- procedural provisions can not be held to be illegal or arbitrary merely because they prescribe a procedure different from the procedure prescribed under the Land Acquisition Act. Section 3-C(2) of the Act, which confines consideration of objections to the "user" of the land is neither arbitrary nor illegal. Counsel for the petitioners have failed to assert the violation of any legal right that would be infringed by confining adjudication of objections to the "user" of the land. The use of the word "user" in Section 3-C(2) of the Act, in our considered opinion, would not render the provision arbitrary, unjust or illegal.
The next submission that despite the absence of any agreement, disputes with respect to compensation are to be compulsorily referred to an Arbitrator exercising powers under the Arbitration and Conciliation Act, 1996, merits rejection. Section 3-H of the Act merely applies to the provisions of the Arbitration and Conciliation Act, 1996 for determining disputes with respect to market value and in essence replaces the Reference Court, as provided under the Land Acquisition Act with an Arbitrator exercising powers under the Arbitration and Conciliation Act, 1996. We are unable to discern any infraction of rights and obligations as would necessitate striking down of the said provision.
Another submission that as the impugned statute C.W.P.No.16619 of 2009 -24- does not provide for an appeal and is, therefore, ultra vires cannot be accepted. An appellate forum is an entity, brought into existence by a statute. The right to file an appeal is neither fundamental nor necessary. It is settled law that the absence of an appellate forum or the right to file an appeal does not render a statute unconstitutional. Even otherwise, a claimant would be entitled to challenge the arbitrator's award by invoking the provisions of Section 34 of Arbitration and Conciliation Act, 1996. Thus, the aforementioned submissions, in our considered opinion, do not render the impugned enactment, arbitrary, illegal or ultra vires of any provisions of the Constitution of India.
As we have upheld the legality of the proceedings for acquisition, the writ petitions are dismissed in respect thereof. But as the provisions of Section 3J and 3G are ultra vires of Article 14 of the Constitution of India, all acquisitions made under the National Highway Act, 1956 would necessarily have to grant solatium and interest, in terms similar to those contained in Section 23 (2) and Section 28 of the Land Acquisition Act.
The writ petitions stand disposed of accordingly with no orders as to costs."
In view of the above, the vires of the NH Act, 1956 (as amended vide Act No.16 of 1997) the provisions of Section 3(J) & 3(G) are C.W.P.No.16619 of 2009 -25- held ultra vires the Constitution of India to the extent the same deny payment of solatium and interest of acquisitions made under the NH Act and all acquisitions made under this Act would grant solatium and interest in terms similar to those contained in Section 23 and Section 28 of the LA Act.
As regards the contention of the counsel for the petitioners that the intersection point of WPE/KMPE, EPE and NH-1 has been arbitrarily changed and fixed at Km. 36.083 from Km. 39.725, this Court while considering this aspect passed order dated 17.8.2010 which reads as follows:-
"At the time of arguments, the Court felt that it is necessary to get further information from the Haryana State Industrial Infrastructure Development Corporation (HSIIDC). Accordingly, it is directed to supply the following information:-
(i) When KMP i.e. Western Peripheral Expressway and Eastern Peripheral Expressway was conceptualized and finalised.
(ii) What was the road alignment in the original planning and at what point (kilometer) the KMP is crossing the G.T. Roard.
(iii) At what point (kilometer) the loop was originally proposed to be constructed.
(iv) Whether to shift the loop (which is in question), road alignment of KMP was also shifted from kilometer 36 to kilometer 39 and when. C.W.P.No.16619 of 2009 -26-
(v) On what date concession agreement to construct the road (KMP) and the loop in question was executed and in that agreement at what point construction of the loop in question was envisaged.
(vi) For what purpose 940 acres of land at kilometer 36 was acquired by the State of Haryana. It be also intimated that on 17.12.2004 technical and financial bids were invited to construct loops at which point (kilometer). It be also stated that 18 acres of land was acquired for what purpose at kilometer No.36, regarding which an Award was passed in the year 2004, as mentioned in the Minutes of Meeting, dated 11.3.2006, possession of which was taken in the month of November, 2004.
(vii) When notification was issued to acquire 983 acres of land, which found mention in the Minutes of Meeting dated 11.3.2006, and for what purpose that land was acquired.
(viii) When the land was acquired in the stretch of
four kilometer in the Eastern Peripheral
Expressway as found mentioned in the meeting
note of HUDA dated 11.3.2006.
(ix) Copy of the site plan in small scale of the
original plan and the plan now changed be also put
on record.
C.W.P.No.16619 of 2009 -27-
Managing Director of Haryana State Industrial
Infrastructure Development Corporation (HSIIDC) shall file an affidavit stating abovesaid facts before the next date of hearing.
Records be also produced in the Court for perusal.
Adjourned to 13.9.2010.
Copy of the order be supplied to Shri Sehgal under the signatures of the Court Secretary.
A photocopy of this Order be placed on the files of connected cases."
In response to the above order, affidavit dated 4.10.2010 of Sh.Rajiv Arora, Managing Director, HSIIDC-respondent No.7 has been filed. In reply to query No.1, it has been stated that five National Highways, namely, NH-1, NH-2, NH-8, NH-10 and NH-24 converge onto the ring road in National Capital Territory (NCT), Delhi. Traffic of these Highways although not destined to Delhi necessarily has to pass through Delhi as there is no alternative route to cross over from one National Highway to the other which leads to traffic congestion and pollution in Delhi. As a solution to this problem, a peripheral expressway comprising western & eastern part called as the WPE/KMPE and EPE had been under consideration for quite some time. The western half of this bye-pass linking to NH-1 at Kundli in the North and NH-2 near Palwal in the South and intersecting NH-10 & NH-8 along the Western periphery of Delhi has been conceptualized as WPE/KMPE. The eastern part of this bye-pass linking NH-1 at Kundli in the North to NH-2 near Palwal in the South via NH-24 on the eastern side of Delhi has been designated as EPE. Originally EPE was planned for a total C.W.P.No.16619 of 2009 -28- length of 105 (44 Km. in Haryana and 61 Km. in UP). In 1995, National Capital Regional Planning Board ( for short NCRPB) got a feasibility study conducted to connect National Capital Region ( NCR ) towns of Faridabad, Noida and Ghaziabad in order to improve their connectivity. The total length of this stretch was 56 Km. (31.5 Km. in Haryana and 24.5 Km. in UP). However, in 2001, NCRPB got another study conducted to connect Ghaziabad with Kundli. This stretch with a length of 49 Km. (12.5 Km. in Haryana and 36.5 Km. in UP), was planned as an extension of the earlier stretch and the two stretches combined together formed the initially proposed EPE with a total length of 105 Kms. The WPE/KMPE was initially designed during the years 1998 to 2001 as 88 Km. stretch from Kundli on NH-1 in the North to Kaligaon on NH-2 in South near Faridabad ( 74 Km. was in Delhi and 14 Km. in Haryana). This alignment was approved by the Delhi Government and the land acquisition process was also initiated. On the basis of the Hon'ble Supreme Court's orders dated 6.12.2001 and 15.7.2002 in Writ Petition (Civil) No.13029 of 1985 titled as M.C.Mehta's case (supra), the above process was stopped. However, keeping in view the imperative need for construction and development of WPE/KMPE, the Haryana Government decided to go ahead with the WPE/KMPE project in its meeting held on 9.4.2004. It was decided in the meeting that HSIIDC would take further necessary steps to acquire the land with right of way of 100 meters running along a distance of 135 Kms. for this project under the urgency clauses of the LA Act. HSIIDC accordingly started the work of topographical survey and fixation of alignment of WPE/KMPE in July, 2004 which was completed by the end of September, 2004. As per the alignment, the take off (starting) point of the expressway C.W.P.No.16619 of 2009 -29- was at Km. 36.083 on NH-1 near Rai, District Sonepat and terminating (end) point was at Km. 64.33 on NH-2 near Palwal.
In the meantime, the Hon'ble Supreme Court vide its order dated 17.12.2004 in M.C.Mehta's case (supra) directed Cabinet Secretary, Government of India, to convene a meeting of all concerned officers and Chief Secretaries of Delhi, Haryana and Uttar Pradesh regarding construction of eastern & western Peripheral Expressways around Delhi. Meetings of all concerned Ministries/States were held on 12.1.2005 and 24.1.2005. The reports were submitted before the Hon'ble Supreme Court which were accepted and the WPE/KMPE being developed by the Government of Haryana on Built-Operate and Transfer (BOT) basis through HSIIDC was declared as WPE/KMPE and the EPE passing through State of Haryana and U.P. was ordered to be developed by NHAI also on BOT basis. The cost of land acquisition of these two expressways was also decided to be shared between the Government of Delhi, Haryana and Uttar Pradesh in the ratio 50:25:25 respectively by the Hon'ble Supreme Court vide the above-mentioned two orders. Vide order dated 18.8.2005, the Hon'ble Supreme Court having regard to the nature of project and desirability of its completion within a stipulated period, constituted a Monitoring Committee to take all decisions whether be it in respect of technical or financial matters or any other matter in relation to the project in question.
After constitution of the Monitoring Committee, the alignment of WPE/KMPE & EPE were fixed in its meetings held on 24.9.2005 and 21.10.2005 after a great deal of deliberations in these meetings. The alignment of WPE/KMPE was kept as it is, as already decided by the C.W.P.No.16619 of 2009 -30- Government of Haryana and HSIIDC. The bids for undertaking the project of WPE/KMPE had also been invited based upon the initial alignment fixed at starting/take off point at Km. 36.083. The Monitoring Committee in its meeting dated 21.10.2005 considered seven alignment options of EPE. The alignment option A-3 with a length of 135 Kms. was finalized. The terminating point of both EPE & WPE/KMPE was finalized at Km. 64.33 of NH-2, the point where WPE/KMPE was terminating. In this meeting, it was further decided that the officers of HSIIDC and NHAI shall jointly examine the exact viable take off meeting (starting) point on NH-1 and inform the Monitoring Committee in this regard. The joint meetings between NHAI, HSIIDC and other concerned Departments were held on 19.11.2005, 30.12.2005 and 24.2.2006 to examine the starting/take off point of the junction of both the Expressways on NH-1. HSIIDC had been requesting for starting/take off point at Km. 36.083 on NH-1 in view of the land acquisition of about 940 acres having already been made for the WPE/KMPE and signing of Concession Agreement after following the due bidding process in November, 2005. Despite insistence of HSIIDC, the starting/take off point was fixed at Km. 39.725 by the Monitoring Committee.
Government of Haryana and HSIIDC vociferously took up the matter before the Monitoring Committee in its meeting held on 11.3.2006. It was submitted that the starting point of WPE/KMPE cannot be changed to Km. 39.725 because the Concession Agreement for the project had already been executed on 31.01.2006 and that approximately 940 acres of land had been acquired and a sum of Rs.164.15 crore had been paid to Land Acquisition Collectors, Sonepat and Jhajjar. It was submitted that in the C.W.P.No.16619 of 2009 -31- meeting the technical and financial bids were invited from the bidders on 17.12.2004 with take off point at Km. 36.083 on NH-1 and the process of land acquisition had also been initiated. Award for about 18 acres of land had already been announced from take off point at Km. 36.083 on NH-1 in District Sonepat and the physical possession of the same has taken in November, 2004 and at this stage, it would be difficult to change the take off point from Km. 36.083 to Km. 39.725 on NH-1. The shifting of the take off point at this stage to Km. 39.725 would involve acquisition of additional land in a stretch of 12 Kms. at a cost of Rs.60 crore and the cost already incurred on the acquisition of existing stretch of about 12 Kms. and the land acquired by HUDA for EPE upto 4 Km. would be rendered infructuous. Accordingly, the starting/take off point for both the expressways was reconsidered by the Monitoring Committee and it was decided to be located at Km. 36.083 of NH-1. The Monitoring Committee also decided that interchange on NH-1 at starting/take off point at its Km. 36.083 would be constructed by HSIIDC and interchange on NH-2 at its Km. 64.33 would be constructed by NHAI and the design prepared for the interchange on NH-1 by HSIIDC would be submitted to NHAI for obtaining its acceptance and similarly the design of interchange on NH-2 being finalized by NHAI would be submitted to the Government of Haryana/HSIIDC for their acceptance. Detailed deliberations were held in the Monitoring Committee meetings held on 24.9.2005 and 21.10.2006, leading to the finalization of fixing the starting/take off point at Km. 36.083 on NH-1. The Minutes of the Meetings and other documents have been placed on record supporting the stand of the State of Haryana with regard to process of acquisition of land, a project report, the bid process and the C.W.P.No.16619 of 2009 -32- Concessionaire Agreement entered into by State of Haryana. As regards the loop which was conceptualized and finalized in the interchange of WPE/KMPE on NH-1, it has been submitted that the same was fixed at Km. 36.083 on NH-1.
In view of the above position, it is apparent that from the very inception, starting/take off point of the intersection at NH-1 was at Km. 36.083. Thus, the contention of the counsel for the petitioners that the intersection point was arbitrarily shifted from Km. 39.725 to Km.36.083 is without any basis and carries no weight.
It has been submitted by the counsel for the petitioners that the petitioners along with their objections, which they had filed to the notification dated 12.8.2009 issued under Section 3(A)(1) of the NH Act, had got prepared three alternative options for the proposed instructions in consultation with highly specialized Engineers-cum-Consultants which were more cost effective and beneficial to the State and would not require the acquisition of the land of the petitioners. In response to this, counsel for the respondents has submitted that the alternative plans submitted by the petitioners are not in consonance with the Expressway standards. The design and the specifications have been approved by the competent Authority keeping in view the traffic safety, expressway standards, future developments and other aspects of the matter regarding not only the designing but location of the intersection. The land of the petitioners is essentially required for the project and cannot, thus, be released from acquisition or left out of the acquisition. These matters are to be best left to the experts and the Courts should avoid venturing into the technical fields in which the Courts do not have any expertise. Only where decisions have C.W.P.No.16619 of 2009 -33- been taken with a mala fide intention in an arbitrary manner or in such like situations, should the Court interfere? The situation in this case is not the one where such an opinion can be formed which would call for interference by this Court. The plea of the counsel for the petitioners, therefore, fails.
As regards the contention of the counsel for the petitioners that the petitioners have been discriminated against because the land on the WPE/KMPE has been acquired by the State of Haryana holding them entitled to the benefit of the rehabilitation and re-settlement of land owners - land acquisition oustees as notified by the State of Haryana vide notification dated 7.12.2007 whereas the petitioners whose land has been acquired by the NHAI under the NH Act would not be entitled to the said benefit. While considering the submissions made by the counsel for the parties, it was brought to the notice of the Court that the land which has been acquired under the NH Act have been granted more compensation than the land which has been acquired under the LA Act by the State of Haryana. The total amount awarded by the Collector for the land which has been acquired by the State of Haryana under the LA Act vide Award dated 26.8.2009 is Rs.35 lacs per acre and with solatium and interest it comes to Rs.51,20,500/- per acre whereas for the land acquired under the NH Act the compensation assessed vide award dated 25.8.2010 is Rs.52 lacs per acre. In the light of the Division Bench judgment of this Court in M/s. Golden Iron and Steel Forging's case (supra), the petitioners would be entitled to solatium and interest as provided under Sections 23 and 28 of the LA Act which would go much higher than the amount received by the land owners whose land has been acquired by the State of Haryana.
The question to be adjudicated upon now is whether the owners C.W.P.No.16619 of 2009 -34- are entitled to the benefit of the Policy for Rehabilitation and Re-settlement of Land Owners- Land Acquisition Oustees as notified by the State of Haryana vide notification dated 7.12.2007.
We have perused the policy in question and after going through the same are of the considered view that the same would not be applicable to the case of the petitioners as according to the said policy, payment of annuity would be applicable to all cases of land acquisition by the Government of Haryana. Since the land of the petitioners has not been acquired by the State of Haryana, therefore, they would not be entitled to the said benefit. Further, they would not be entitled to the allotment of industrial plots as the said policy envisages allotment of only residential plots and that too to the land owners whose land has been acquired by the HUDA and/or HSIIDC. In any case, the petitioners will not be entitled to the industrial plots. The additional benefit which is based on the policy of the State Government, has to be applied to the persons who fall within the policy. It is not the domain of the Court to direct application of a policy which is not applicable to the persons who are claiming benefit of the same. Since the acquiring Authorities are different, the benefits which do not flow from the Statute cannot be extended under a policy which is not applicable to the persons claiming its benefits. It has been specifically stated by the counsel for the State of Haryana that none of the persons whose land has been acquired for Rajiv Gandhi Education City by HUDA and was later transferred to the NHAI, has been allotted industrial plot under the Oustees' Quota of the acquired industries. The contention, thus, of the counsel for the petitioners, in this regard, cannot be accepted.
In view of the above, we do not find any merit in these writ C.W.P.No.16619 of 2009 -35- petitions and dismiss the same except to the extent that the petitioners would be entitled to the benefit of solatium and interest as provided under Sections 23 and 28 of the LA Act apart from the amount of compensation assessed under Section 3 (G) of the NH Act, as granted vide award dated 25.8.2010.
( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
January 28th , 2011
poonam