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Judgment
Following are the prayers made in this writ petition:
“A). This Hon'ble Court may be pleased to admit this petition.
B). This Hon'ble Court may be pleased to hold the impugned action of respondent No.2 to give the unutilized acquired land as mentioned herein above,
to the respondent No.3 on lease by executing the agreement on certain amount for using the said untuilized acquired land for road is illegal, unjust,
arbitrary and against the law provided under the Act, by way of issuing suitable writ, order or direction under Articles 226 of the Constitution of India.
C). This Hon'ble Court may be pleased to direct the respondent No.2 to immediately cancel the lease deed executed between the respondent No.2
and respondent No.3 for using the unutilized acquired land and further direct the respondent No.2 to prevent the respondent No.3 from using the said
unutilized acquired land as road to reach their company, by way of issuing suitable writ, order or direction under Article 226 of the Constitution of
India.
D). This Hon'ble Court may be pleased to direct the respondent No.2 to give back the remained unutilized acquired land admeasuring 15 Guntha to the
petitioner on market value with interest as it was awarded by the reference court by way of issuing suitable writ, order or direction under Article 226
of the Constitution of India.
E). Pending admission, hearing and final disposal of this Special Civil Application, this Hon'ble Court may be pleased to restrain the respondent No.3
from using the unutilized remaining acquired land as mentioned in this petition for using the road for their vehicles in the interest of justice.
F). Ex-parte ad-interim relief may kindly be granted in terms of prayer (E) above.
G). This Hon'ble Court may be pleased to pass such other and further order/s as deemed fit, just and proper by this Hon'ble Court.â€
In answer to the notice issued by this Court, affidavit-in-reply is filed by respondent No.2 namely, Deputy Executive Engineer, Narmada Project Main
canal, Div.2, Thasra and it is categorically submitted that for construction of Main Narmada Canal, land was acquired for which,Â
necessary compensation in accordance with law as per the award was paid. Paras 10,11 and 14 of the reply read as under:
“10. With regard to para 3.2, whatever is stated in the aforesaid para is denied and disputed in toto and Petitioner is put to strict proof for whatever
is stated in para 3.2. I further say that, for construction of Narmada Main Canal the land width to be acquired was calculated considering following
aspects.
(a) The cross section of canal.
(b) Whether the canal is in full cutting, full banking, partially cutting-partially banking.
(c) Land width for construction of canal construction road.
(The location for which petitioner has filed application is near chainage 148.300km of NMC)
I say that the Narmada main canal in the reach from 144.500km to 148.391km is in full cutting zone where depth of cutting is about 20mt where
the canal runs in such type of cutting huge quantity of excavated soil(earth) remains unutilized which has to be stacked in form of spoil bank. I say that
in this portion of land the excavated soil was more than 60.00 lac cubic meter and to stack such a huge quantum of soil, land width acquired was total
300 mt. upto ch.148.300km and then after 230 mt. from ch.148.300km onwards. Copy of canal section drawing is annexed hereto and marked as
Annexure-R/1.
…
…
I say that the purpose for which the land was acquired was fully served and the soil unused was stacked in land width acquired. No land was kept
unutilized. Further, in this portion the soil unused were stacked in width of about 169 mt. I say only 15 mt. width out of 169 mt. width was given to
Respondent No.3 on lease and that too for good purposes as mentioned below.
(a) The road constructed by the respondent no.3 is utilised by the canal field staff i.e. Engineers for through inspection of canal up to end of acquired
land width.
(b) The farmers and local village people are also utilizing this land for transportation of their farm equipment and other vehicles.
(c) The respondent no.3 is a big National level company and has given jobs to number of people of surrounding villages in their company.
(d) Also the land width of 15 mt. makes only 8%of total land width where excavated soil was stacked. The soil was removed from this 15 mt. land
width.â€
It is categorically averred in the aforesaid reply that there is no question of keeping the acquired land as unutilised at any place and, therefore,Â
land is not to be given back to the owners. Even in the year 2015, farmers along with father of the petitioner had addressed a letter to Chairman,
Sardar Sarovar Narmada Nigam Ltd. not to claim any re-grant of the land if respondent No.3 constructs pukka road for easy
transportation so as to avoid dust pollution of kachha road. Apart from the above, no material appears on the record that such land is given for any
permanent use nor was it sold to any private company. It is also stated that land in question is to be used by one and all. We have also perused the
affidavit filed by respondent No.3 namely, Authorized Signatory of UltraTech Cement Ltd. Permissive use by private  company of the land acquired
by the acquiring body cannot be said to be diversifying the intention of public purpose for which the land  was acquired.
Mr. Sheth relied upon a decision of the Hon'ble Supreme Court in the case of Royal Orchid Hotels Limited and Another Vs. G.Jayarama Reddy and
Others, reported in (2011)10 Supreme Court Cases 608 to support his case. Facts before the Hon'ble Apex Court were that land acquired for the
purpose was transferred to parties and corporate entities and, therefore, acquisition was quashed and possession was restored to land owners by
Hon'ble Apex Court. However, in the facts on hand, though there is an allegation that part of the land is sold to private party, no material is produced
on record to show that land in question was sold to any private party and hence, we are of the view that the aforesaid decision relied on by learned
advocate, Mr. Sheth has no application to the facts of the present case.
In view of the aforesaid, we find no substance in the petition and hence, the petition is dismissed. Notice is discharged.