Habu Ram and Others vs Union of India and Others

Sangeet Lodha, J.—By way of these writ petitions, the petitioners have questioned legality of notification dated 11.3.13 issued by the Government of India under sub-section (1) of Section 3C of National Highways Act, 1956 (for short "the Act of 1956") and notification dated 25.11.13 issued under Section 3D of the Act of 1956, for acquisition of the land for the purpose of widening and improvement of existing single lane into two lanes with the pave shoulder of section Nimbi Jodha (near Ladnu) at k.m.00 -Degana-Merta City at k.m. 139-900 of National Highway No. 458 in District Nagaur of the State of Rajasthan.

Precisely, the case of the petitioners is that when the existing road at village Tilanes was constructed, a portion of each of khasras over which the same was taken through, was acquired from the agriculturists substantially depriving them from their land and now instead of widening the existing road, completely abandoning it, a new bypass is sought to be constructed, whereby the farmers of the village including the petitioners herein, shall stand deprived of their livelihood. It is submitted that 100 meters wide road is already existing and therefore, for widening the road, only 100 meters wide strip is required whereas, for providing bypass, the land for 200 meters wide road will have to be acquired. It is submitted that the position regarding the location of the buildings on the roadside in the villages Tilanes and Idwa is not distinguishable from the positions of the buildings on the road side in other villages namely, Paliyes, Baggad and Arniala falling on the road proposed to be constructed and therefore, the action of the respondents in isolating the villages Tilanes and Idwa for giving a bypass is ex facie discriminatory. It is submitted that the existing road of NH 458 is passing through the habitation of all these villages, in both the sides whereof, shops, residential houses and government buildings such as school and hospitals and Gram Panchayat buildings are situated. It is submitted that as a matter of fact, such buildings are found located in Baggad and Arniyala in the length of one and half kilometers whereas in villages Tilanes, Idwa and Paliyes, such buildings are located in the length of less than a kilometer on the both side of the road and therefore, there is no justification as to why the villages Tilanes, Idwa and Paliyes have been picked up for giving a bypass while dropping the proposal for construction of the bypass in the village Baggad. It is further submitted that the objections raised by the petitioner-Habu Ram against the proposed acquisition have been rejected by the competent authority without consideration vide order dated 4.9.13. It is submitted that no opportunity of hearing was extended to the petitioner while passing the order, rejecting the objections.

On the other hand, the respondent-National Highway Authority of India (NHAI) has taken the stand that the plan in question for widening of NH 458 is designed to cater the heavy traffic plan in the stretch (0.000-139.900 KM) in the District Nagaur has been prepared after detail survey of project road alignment taking into consideration the possibility of the bypasses and realignment. It is submitted that the bypass has been proposed wherever improvement of existing road is not possible. It is submitted that the existing road of village Tilanes has been encroached upon with time and there are residential settlements very close to carries way varying between 3 meter to 5 meter from the road edge on both sides. There is one temple also on the right side at road edge in the village center. That apart, the village is having pond on the west site and big catchment on the east side of the road. The pond is only source of potable water of the village. The road geometry is also very poor inside the settlement and therefore, a bypass is required. Similar are the reasons assigned for proposing the bypass at village-Idwa. It is submitted that opting any of the option is absolutely prerogative of the respondents which is based upon sound reasons and technical issues which cannot be questioned by anybody for his own convenience. It is submitted that as mentioned in the Detailed Project Report (DPR), total 8 bypasses and 1 realignment were proposed on NH 458 (KM 0.000- KM 139.900), however, due to delay in finalisation of Baggad bypass, acquisition proceedings could not be started but now, entire alignment work of Baggad bypass is completed and on receipt of the approval, acquisition proceedings would be carried out for construction of the Baggad bypass. The categorical stand of the respondent is that the proposal of Baggad bypass has not been cancelled by NHAI and thus, the averments made by the petitioners in this regard, are incorrect. It is submitted that to avoid large scale demolition of properties and to minimise the R and R and social impact, the bypasses have been proposed, which are based on detailed studies done by the experts of the field. It is submitted that upon receiving objections, notices for hearing to the concerned objectors and interested persons were issued. It is submitted that the allegations regarding non consideration of objections or deviating from the prescribed procedure, are absolutely false.

Learned counsel for the petitioners reiterating the stand taken in the writ petitions, submitted that regarding the position of the location of the buildings along the existing road in the villages Tilanes, Idwa and Paliyes and other villages namely, Arniyala and Baggad is not different and thus, the action of the respondents in proposing the bypass for the villages Tilanes and Idwa and dropping the bypass originally proposed for village-Baggad is ex facie discriminatory. Learned counsel submitted that the village-Baggad in respect whereof, bypass proposed stands withdrawn is the biggest village amongst the village falling on the route in question. Learned counsel submitted that NH 458 is passing through the habitation of all these villages in both sides whereof, shops, residential houses, temples and government buildings are situated and thus, there is absolutely no justification for proposing the bypass for the villages Tilanes and Idwa and dropping the proposal of giving bypass for village Baggad. Learned counsel submitted that the averments made by the petitioners in this regard have not been specifically denied by the respondent and there is only a bald denial. Learned counsel submitted that the villages similarly situated should have been treated similarly and the respondents cannot be permitted to pick and choose by creating artificial distinctions. Learned counsel submitted that there is no plausible reason for proposing the bypass by isolating the villages Tilanes and Idwa and consciously dropping the proposal for bypass in village Baggad without there being any distinguishing feature. In support of the contention, learned counsel has relied upon a decision of the Hon''ble Supreme Court in the matter of Hari Ram and Another Vs. State of Haryana and Others, (2010) 2 CTC 336 : (2010) 2 JT 235 : (2010) 2 SCALE 339 : (2010) 3 SCC 621 : (2010) 2 SCR 756 : (2011) AIRSCW 109 : (2010) 6 Supreme 450 . Learned counsel submitted that the objections raised by the petitioners against the proposed acquisition have been rejected by the competent authority without application of mind solely relying upon the observations made by M/s. Intercontinental Consultants and Technocrats, in the reply to the objections. Learned counsel submitted that the order passed by the competent authority deciding the objections must reflect objective application of mind to the entire record including objection raised by the land owner and thus, the rejection of the objections by the competent authority in perfunctory manner without giving an opportunity of hearing to the petitioners, are ex facie violative of principles of natural justice. In support of the contention, learned counsel has relied upon a decision of the Hon''ble Supreme Court in the matter of Union of India (UOI) and Others Vs. Shiv Raj and Others, AIR 2014 SC 2242 : (2014) AIRSCW 3388 : (2014) 6 SCC 564 . Learned counsel submitted that the bypasses have been proposed by manipulating the things to suit the vested interest.

On the other hand, the counsel appearing for the respondent submitted that NHAI as an executing agency, has commissioned the services of Intercontinental Consultants and Technocrats Private Limited for consultancy services for the preparation of DPR inter alia for the sections of NH 458 in question. It is submitted that the project of alignment is passing through several villages with built up areas averting the road and therefore, if the existing roads are taken for widening to 2-lane, it will involve demolition of properties and therefore, in all 8 bypasses and 1 realignment with total length 26.314 km have been proposed. Drawing the attention of this court to the Index Map of the Project road and the Final DPR, learned counsel submitted that for the reasons set out in detail, the bypasses for villages Tilanes and Idwa as proposed have been approved. Learned counsel submitted that from bare perusal of the Project Report, it is apparent that a bypass has also been proposed for village Baggad and the allegation of the petitioners that the proposal for the bypass at village Baggad stands dropped, is absolutely incorrect. Learned counsel submitted that the petitioner-Habu Ram raised objections against the proposed acquisition, was served with a notice for personal hearing and therefore, the allegation levelled that the objections have been rejected without giving an opportunity of hearing is false to the knowledge of the petitioners. It is submitted that the objections raised have rightly been rejected by the competent authority for the reasons recorded and therefore, the order rejecting passed by the competent authority, does not suffer from any infirmity or illegality. Learned counsel submitted that without there being any material placed on record showing that the action of the respondent in proposing the bypasses has been manipulated to suit the vested interest, the contention raised is absolutely devoid of any merit. In support of the contention, learned counsel has relied upon a decision of the Hon''ble Supreme Court in the matter of Union of India (UOI) Vs. Dr. Kushala Shetty and Others, AIR 2011 SC 3210 : (2011) 8 JT 160 : (2011) 4 RCR(Civil) 353 : (2011) 7 SCALE 654 : (2011) 12 SCC 69 : (2011) 2 SCR 1087 : (2011) AIRSCW 5115 .

I have considered the rival submissions and perused the material on record.

Indisputably, the Act of 1956 was enacted by the Parliament inasmuch as with the increase of movement of traffic on account of industrial advancement and increased tourist traffic, it was found necessary that important highways of the Country are developed and maintained by the Central Government. Sections 3A to 3I of the Act of 1956 contain complete scheme for acquisition of the land required for building, maintenance, management and operation of the National Highway or part thereof.

After enactment of the Act of 1956, taking into consideration certain difficulties faced in developing and maintaining the National Highways mentioned in the schedule of the said Act, it was felt necessary to constitute a separate authority with the statutory power for the development, management and maintenance of National Highways and therefore, to achieve the said object, the Parliament enacted the National Highways Authority of India Act, 1988 ("Act of 1988"). Accordingly, exercising the power under Section 3 of the Act of 1988, the NHAI was constituted by the Central Government.

It is common ground between the parties that on the approval being granted by the Central Government, the NHAI decided to take up the up-gradation of National Highway-458. The NHAI as the employer and the executive agency for the work commissioned the services of Intercontinental Consultants and Technocrats Pvt. Limited for consultancy services, for preparation of the DPR inter alia in respect of above mentioned section of NH-458. The report prepared deals with final DPR for Package-I of NH-458 (From k.m.0.000 to k.m. 139.900 from Nimbi Jodha (near Ladnu) on NH-65 and termination end of the Merta City Bypass as proposed. A perusal of the report placed on record reveals that while taking into consideration all the relevant aspects i.e. Socio Economic Profile of Project Influence Area, Traffic Studies and Analysis, Classified Traffic Volume Counts and the surveys conducted on different aspects, the project for widening and improvement of existing single lane into two lanes of the portion of the highway in question was finalized. After comparative evaluation of the all bypasses and realignments, eight bypasses and one realignment were proposed for Package-I of NH-458 which includes Tilanes, Idwa and Baggad bypasses. The said bypasses are proposed taking into consideration the facts that the existing road has been encroached with time and there exists commercial and residential structures on both the sides of the road. That apart, in the village Tilanes, there is one Temple also on the right side of the road edge in village center. The village is also having a pond only source of potable water for the village on the west side and big catchment on the east side of the road. The road geometry was also found very poor inside the settlement and thus, taking into consideration the bypass was proposed. Similarly, in village Idwa, the right side of the way from k.m. 102.600 to 103.900 is also encroached at some places and the stretch passing through Idwa has commercial and residential structures on both the sides. There is a pond with the large catchment spread on the east side of the village. Thus, considering the above constraints, instead of widening the existing road, the bypasses were proposed.

A perusal of the material on record reveals that the project in question has been designed based on detailed studies done by the experts of the field, keeping in view the various relevant factors. In the considered opinion of this Court, the propriety and the requirement of the bypasses and alignment provided for under the DPR prepared by the experts of the field cannot be interfered with by this Court, which has no expertise in the field, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India.

Coming to the contention of the learned counsel for the petitioners that while proposing and executing the bypasses at the village Tilanes and Idwa, the proposal for bypass at village Baggad has been withdrawn, it is to be noticed that the respondents have taken a categorical stand that the proposal for bypass at village Baggad has not been dropped, rather it has been delayed inasmuch as the alignment of the Baggad bypass could not be finalized and thus, the acquisition proceedings could not be started. It is specifically stated that now entire alignment work of Baggad bypass is completed and on approval thereof, acquisition proceedings would be carried out for construction of the said bypass. Thus, the contention of the petitioners that while providing bypasses at the village Tilanes and Idwa and dropping the bypass at village Baggad as proposed, the respondents have practiced hostile discrimination, is absolutely devoid of any merit.

Lastly, coming to the contention of the petitioners that the objections raised by the petitioner-Habu Ram have been rejected without application of mind in gross violation of principles of natural justice, it is a matter of record that on the objections being filed by the various land owners, the notices were issued to them for availing the opportunity of personal hearing. The notice issued in this regard was duly served upon the petitioner-Habu Ram as well and therefore, the contention raised that the objections raised have been rejected without extending an opportunity of hearing is not tenable.

It is true that the order passed rejecting the objections does not contain the detailed consideration of each and every objection raised by the petitioner, but then, the objections raised have been rejected by the competent authority observing that the existing road passes through heavily dense habitation and there exists religious place and residential and commercial structures on both the sides of the road. That apart, it is observed that the curves existing also are not technically appropriate and so as to avoid the accidents and maintain the law and order and for convenience of the public at large, it is necessary to construct the bypass. It is also observed that the proposed alignment cannot be technically and economically viable at this phase of the execution of the project. In the considered opinion of this Court, for the parity of reasons given herein above, it is not possible for this Court to disapprove the proved reasons recorded by the competent authority, relying upon the experts report available on record.

The contention of the learned counsel for the petitioners that the respondents have manipulated the things to suit the vested interest and have indulged in pick and choose, suffice it to say that no details in this regard have been set out in the petition and the bald assertions made regarding the persons sought to be favoured, this Court cannot enter into a roving and fishing inquiry so as to draw a conclusion that the decision and actions of the respondents in proposing the bypasses are actuated by malice.

In view of the discussion above, the writ petitions preferred are devoid of any merit and therefore, deserve to be dismissed.

In the result, the petitions fail, the same are hereby dismissed. No order as to costs.