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Judgment
The Writ Petition No.2382/2018 has been filed by petitioners- National Highway Authority of India and the Union of India, Ministry of Road Transport & Highways with the following prayer:
"(i) the impugned order dated 20.11.2017 (Annexure-6) passed by Competent Authority Land Acquisition-cum- Additional District Magistrate, Bhilwara may be quashed and set aside.
(ii) the petitioners may kindly be permitted to proceed with the acquisition proceedings as per Notification dated 21.08.2017 (Annexure-1).
(iii) Any other order or direction which this Hon'ble Court deems just and proper may also be passed."
The Writ Petition No.2071/2018 has been filed by petitioner- Kartar Singh Rathore with the following prayer:
"(a) the record of the case may kindly called for;
(b) the order dated 20.11.2017 (Objection 64/2017) (Anx.9) & order dated 20.11.2017 (Objection 36/2017) (Anx.12) may kindly be quashed and set aside.
(c) the respondent NHAI may kindly be directed to proceed with the acquisition of land and other formalities as per the publication of Notification dated 21.08.2017 (Annex.01).
(d) any other appropriate writ or order or direction which is favourable to the petitioner in the facts and circumstances of the case may kindly be granted to the petitioner."
Brief facts of the matter are that the National Highway Authority of India (herein after 'the NHAI' in short) issued a notification for acquisition of certain lands on 24th November 2012 for construction of four-lane highway at Kishangarh-Chittorgarh Section of NH-79. The respondent- Rajasthan Spinning & Weaving Mills submitted objections before the Competent Authority Land Acquisition {herein after 'the Competent Authority'} and considering the objections submitted by the respondent No.1, the Competent Authority vide order dated 21st June 2013 directed the NHAI to exclude land of the respondent No.1 from acquisition.
The NHAI again started land acquisition proceedings for widening of the Highway into six lane vide notification dated 21st August 2017. In pursuance to the notification dated 21st August 2017, the respondent No.1- Rajasthan Spinning & Weaving Mills again submitted objections with regard to alignment of the Highway. The Competent Authority, considering the objections raised by the respondent No.1, vide order dated 20th November 2017 directed the NHAI for realigning of the Highway and further directed exclusion of land of the respondent No.1.
The petitioner- Kartar Singh Rathore also submitted objections against acquisition notification dated 21st August 2017 but the Competent Authority rejected his objections vide orders dated 20.11.2017 (Annxs.9 & 12).
The counsel for the petitioner- NHAI submitted that the Competent Authority has committed serious illegality in directing the NHAI for re-alignment of the Highways. Learned counsel further submits that the NHAI has proposed widening of the Highway based on reports of expert persons and land acquisition proceedings were accordingly started. Learned counsel further submits that the project is of National importance and the impugned order dated 20.11.2017 passed by the Competent Authority is in violation of the judgment passed by the Hon'ble Supreme Court in the matter of Union of India vs Dr Kushala Shetty & others: (2011) 12 SCC 69, wherein in para 24, it has been held:
"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 ex-facie 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."
Learned counsel for the NHAI further relied on the judgment passed by Hon'ble Supreme Court in the case of Competent Authority vs Bangalore Jute Factory & others: (2005) 13 SCC 477 wherein in para 16 it has been held:
"16. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action."
Lastly, learned counsel prayed for quashing of the order dated 20.11.2017 passed by the Competent Authority.
The counsel appearing on behalf of the respondent-Rajasthan Spinning & Weaving Mills submitted that once the Competent Authority has taken a decision in the earlier land acquisition proceedings vide order dated 21st June 2013 for excluding land of the respondent- RSWM on the basis of report/letter submitted by technical experts, the NHAI is now estopped from again proceeding to acquire land of the respondent. The counsel further submits that the earlier order passed by the Competent Authority on 21st June 2013 was based on the report submitted by technical experts. The learned counsel further submits that number of accidents have occurred on the existing four lane Highway and if proposed six-lane Highway is constructed without removing the curve then it would further be not in the interest of public at large.
In support of his contentions, the counsel for the respondent- RSWM relied on the judgment passed by Hon'ble Supreme Court in the case of Gulabchand Chhotalal Parikh vs State of Bombay (Now Gujarat): AIR 1965 SC 1153, wherein in para 80 it has been held:
"80. But it is said that under the general principles of res judicata the Court would be barred to try his suit on the said issue. When the Code of Civil Procedure enacted s. 1 1 prescribing precisely when an earlier decision would be res judicata in a suit, it is not open to invoke the general principles of res judicata in the context of a subsequent suit, though the conditions laid down in the section were not satisfied, for otherwise the section would become nugatory: it would also introduce anomalies. A decision in a previous suit would not be res judicata in a subsequent suit unless the stringent conditions laid down in s. 11 of the Code were satisfied; whereas a decision in a proceeding which was not a suit would be res judicata whether or not the said conditions were complied with. If the fundamental requisites of res judicata were satisfied, a decision, if it fell under s. II of Code, would be res judicata in a subsequent suit; and even if it did not fall thereunder, it would equally be res judicata. That could not have been the intention of the Legislature."
The learned counsel for respondent further relied on the judgment passed by a co-ordinate Bench of this Court in the matter of Maghraj Calla vs Kajodi Mal: AIR 1994 Raj 11 wherein in para 67 it has been held:
"67. The principle cannot be doubted that 'lis' disposed of on merits by a speaking order, even if passed in limine, amounts to a decision which can be opearting as res judicata in subsequent proceedings. In Daryao's case, (AIR 1961 SC 1457) (supra), the Court observed as under (at p. 1466 of AIR:
"......If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar......."
In The Virudhunagar Steel Rolling Mills' case (AIR 1968 SC 1196) (supra), the Court observed as under (at p.1198 of AIR):
".....Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at p. 592 in the same case. Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to res judicata and would bar a petition under Article
The petitioner's only proper remedy in such a case would be to come in appeal from such a case would be to come in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to the other side......"
Thus, even where notice might not have been issued to opposite party, still dismissal of a petition in limine may amount to create bar on subsequent trial on the same issue, on the principle of res judicata; provided the issue has been decided by a speaking order, on merits. The principle was again reiterated in the Workmen of Cochin Port
Trust v. The Board of Trustees of the Cochin Port Trust, AIR 1978 SC 1283."
Heard learned counsel for the parties and perused the record of the matter.
The writ petition filed by the petitioner- NHAI deserves to be allowed, for the reasons- firstly, the Competent Authority has committed serious illegality in directing the NHAI to remove the curve existing on the Highway and further committed illegality in excluding land of respondent- RSWM from the proposed acquisition, in view of the judgment passed by Hon'ble Supreme Court in the matter of UOI vs Dr Kushala Shetty (supra). Secondly, land of the respondent- RSWM is required for widening of existing Highway from four lane to six lane and the project is of national importance. Thirdly, it is for the experts to prepare alignment of the road for widening of the Highway.
In that view of the matter, I hereby quash and set aside the order dated 20th November 2017 (Annx.6) passed by the Competent Authority (respondent No.2). The Writ Petition No.2382/2018 filed by petitioner- NHAI stands allowed accordingly.
Connected Writ Petition No.2071/2018
In view of aforesaid discussion, the connected Writ Petition No.2071/2018 filed by petitioner Kartar Singh Rathore is also disposed of in terms of above Writ Petition No.2382/2018 {National Highways Authority of India & another vs Rajasthan Spinning & Weaving Mills & others}.