Vikram Singh Kandari & Others vs Union Of India & Others

Sharad Kumar Sharma, J

This is bunch of 24 writ petitions, which involve an identical question of fact and law and, hence, they are being decided by this common judgment.

The petitioners in the present writ petition claimed themselves to be the permanent residents of village Gid Bhuter, Post Tilwara, Tehsil & District Rudraprayag, Uttarakhand. As per the averments made in the writ petition they have claimed to be the bhumidhars of the respective part and parcel of lands, which has been described in the pleadings of the writ petition. They have contended that for the purposes of laying down/widening of the National Highway No. 109, the National Highway Authority while exercising its powers under Section 3-A(1) had issued a notification on 27.01.2017 and a corrigendum notification dated 28.07.2017. They have prayed for that a writ of mandamus may be issued to the respondents not to acquire the land in question. In relief 3 and absolutely a contradictory relief has been sought to relief 1 and 2 where they have prayed for that they may be paid compensation in accordance with the provisions contained under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. If the petitioners claim a relief of compensation under the Act of 2013, they could not have challenged the notification dated 27.01.2017 and 28.07.2017 issued under Section 3A(1) of the National Highway Authority Act, 1956. They have also questioned the notice of 14.11.2017 issued by respondent no. 2. In almost all the writ petitions the reliefs as claimed are common.

Precisely if we go through the grounds, which have been raised by the petitioner for giving challenge to the two notifications pertains to the technical and engineering aspects, which are with regards to the alignment of the road, the width, which has been determined by the National Highway Authority, according to the plan framed under the Act, which stood sanctioned by the central authority, as well as, the fact that the petitioners have been discriminated in the acquisition proceedings, because the acquisition is being carried out from one side of the existing road and the other part has been completely left where no acquisition proceedings have been held no part of land is taken from the other side of the road.

The contention of the petitioners has also been in the writ petition to the effect that looking to the topography and the width of the preexisting road, there was no necessity for the respondent to acquire 24 meters including, their present road, it was not justified and the same ought to have been reduced as that was on a higher side. Apart from it, they have also contended that the National Highway Authority after issuance of the notification under Section 3-A (1) had issued notices under Section 3C to all the interested persons including after making its wide publications in local newspaper giving information of acquisition, whereby, the objections were invited by those persons whose land was brought within the purview of the acquisition notification issued under Section 3(A) (1) of the National Highway Authority Act, 1956, dated 27.01.2017 and its corrigendum issued thereafter dated 28.07.2017.

It is not in dispute by the petitioners, in pursuance to the notice issued to them they have filed their respective objections as against the proposed acquisition proceedings. Subsequent thereto, after submission of the reply the respondent no. 2 admittedly had given notice under Section 3(E) and Section 3(H) of the National Highway Authority Act on 14.11.2017, to the petitioners, wherein, by virtue of which the National Highway Authority while exercising its powers under Section 3(E) had taken possession of the property in question.

However, the amount of compensation, which was payable to the occupants of the property initially there was a vacuum prevailing as to under which law the compensation would be determined in pursuance to the present acquisition, whether under Section 23 of the Land Acquisition Act of 1894 or it would be payable according to the provisions of the Act called as "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013", which has been enforced by its publication in the gazette notification on 22.09.2013 and from the said date the said Act was made applicable for the purposes of determination of compensation payable to the land losers, whose land has been acquired by the authorities for public purposes provided under the Act.

The petitioners contend that being dissatisfied in relation to the plan layout of the road, as published by the National Highway Authority, they had submitted their representations for redressal of the grievance for the change of alignment and also for the purposes of determination of an adequate compensation as per the Act of 2013. Such representations since are not contemplated under the Act for the purposes of determination of alignment or compensation under the Act, the same was not maintainable.

This Court is of the view that when an action is taken under a statute and it is a self contained code, which provides a forum for the redressal of the grievance also, in that eventuality, the representations, which are submitted by the land holders for whatsoever reason it may be, it would not be tenable, because it cannot override the statutory provisions, which itself contemplates a forum from where the petitioners can raise their grievance and get their grievance adjudicated by the authority, who is competent under the Act under which the land was acquired.

As far as the argument extended by the learned counsel for the petitioners to the effect that the compensation, which was being made payable to them was not being paid in accordance with the provisions contained under the Act of 2013. This fact is refuted by the learned counsel for the National Highway Authority Mr. Naresh Pant contending thereof that w.e.f. 01.01.2015, whatsoever compensation, which is required to be paid as a consequence of the acquisition proceedings under Section 3-A(1), is to be determined on the basis of the parameters, which has been provided under the Act of 2013. Hence, the grievance so far it relates to relief no. 3 stands redressed as according to the respondents themselves the compensation, which would be payable to the petitioners as a consequence of the notification, which would admittedly be determined as per the provisions of the Act of 2013.

Besides this, if on an overall scrutiny of the pleadings, which has been raised by the petitioners in the writ petition is considered, this Court is of a considered view that the project, which has been enforced by the National Highway Authority for widening of NH-109 is a scheme, which has been floated and sponsored by the Government of India for the benefit of the public at large and, particularly, the public who are residing in the interior hill areas.

Even otherwise also, according to the Apex Court judgment 'State of Himachal Pradesh and another vs. Umed Ram Sharma and others' as reported in AIR 1986 SC 847 providing of the road connectivity to the residents of the hill has been held out to be a right which the Government has to discharge in providing an adequate road facility to the residents of the hill areas. Paragraph of 11 of the said judgment is quoted hereinbelow:

"11. It appears to us that in the facts of this case, the controversy lies within a short compass. It is well-settled that the persons who have applied to the High Court by the letter are persons affected by the absence of usable road because they are poor Harijan residents of the area, their access by communication, indeed to life outside is obstructed and/or prevented by the absence of road. The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in article 21 of the Constitution and in the facts of this case read in conjunction with article 19(1)(d) of the Constitution and in the background of article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under article 21 to his life and that right under article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well-settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication."

Considering the relief clause once the grievance of the petitioners raised in the light of the fact that they are not being paid compensation in the light of the provisions contained under the Act of 2013, their challenge given to the notification dated 27.01.2017, itself gets diluted. Even otherwise also, the Government of India under the theory of eminent domain considering the wider prospective of development, which though not enshrined in the Constitution of India, is now taking the shape of as of right, i.e. a Right of Development, as it has been laid down by the judgments of the Apex Court that, each citizen residing in any part of the country has got a right of development also.

As far as the project in question is concerned, this also aims at to develop the area and in particular the interior hill areas by providing a better road facility and activity of the widening or laying of road for the interior residents of the hill. Hence, it came and intent to meet a public purpose and a public objective.

The ground of challenge to the notification by the petitioners from the view point that it did not satisfy the test of expectation of the residents of the area with regards to its gradation, width and such many other engineering factors, these are the factors, which are to be determined by the experts who are expert in the technical field, and as far as the courts are concerned, the court is not an expert to deal with those aspects pertaining to the gradation and other requirement as it has been settled down in the project of National Highway Authority, which has been floated by the National Highway Authority. This preposition has been already held out by the judgment reported 2011(12) SCC 69 'Union of India vs. Kaushala Shetty & Others', whereby, it has been held that in its paragraph 28 that the courts are not equipped with the expert knowledge and is not in a position to assess technical aspect of the matter and feasibility of a particular project, its alignment and when more particularly it means to serve a larger public interest the scope of judicial review becomes more limited and the courts could not go on the ground of a non satisfactory alignment as per the expectation of the land holders, which would be unending should not be taken as to be the ground to challenge the notification acquiring the property under Section 3A(1) of the Act. Paragraph 28 of the aforesaid judgment is quoted hereunder:

"28. 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."

The Division Bench of this Court also had an occasion to deal with the issue as to whether the courts can exercise the power to take a decision with regards to the project layouts for the construction of roads, its alignment, width and various other engineering factors, which are required to be considered by the authority vested with the power to lay the project. The Division Bench of this Court in a judgment rendered on 31.07.2018 in Writ Petition (PIL) No. 80 of 2011 'Janki Prasad Badola vs. Superintendent Engineer 12th Circle & Others' had also taken an identical view as expressed by the Hon'ble Apex Court in the judgment as referred above that the paragraph 10 of the said judgment has held that the authorities, who are the experts in the field are the only authority, which can decide on the basis of the reports of the engineering staff as well as surveyors and the policy makers. On these questions the court in the absence of there being expertise knowledge cannot interfere into. Paragraph 10 is quoted hereunder:

"10. This is a Public Interest Litigation. The question relates to the alignment along with which a public road is to be constructed. It is no part of the Court's jurisdiction, even in Public Interest Litigation, to decide as to what should be the actual alignment, unless it be that a fundamental right or even a legal right of public or a section of the public is shown to be affected clearly. The authorities, who are competent legally and otherwise to take such decisions, would be the concerned persons in the concerned department, who have all technical know how and expertise, namely, the engineering staff, surveyors and the policy-makers etc. Construction of the road necessarily involves considerable outlay in terms of public spending. Looking to the hilly track the construction of roads must be completed in a time bound fashion, as this is for the benefit of the public, more particularly, when in the hills this is the only mode of transport available to the people of hills living in far flung hills. Any interference in such activities can be done only with the greatest deal of caution and only in very limited circumstances, if at all legally required. It is not as if this is a case where, in pursuit of the fundamental right of movement in any part of the country and particularly in hilly state like Uttarakhand, the petitioner seeks that a road be 10 constructed where there is none. On the other hand, rather what the petitioner seeks is that the alignment, which is being pursued by the department, should not be followed as it will take over fertile and irrigated lands."

In view of the fact that the entire project aims at to provide development of the area and in view of the judgment of the Hon'ble Apex Court the writ courts cannot be an expert to determine the propriety of the project and also considering the fact that so far as the grievance pertaining to the determination of the compensation as per the provisions contained under the Act of 2013 is concerned, the same now stands redressed in view of the statement made by the counsel for the National Highway Authority that the petitioners would be entitled for the grant of compensation determined under the provisions of Act of 2013, that grievance stands redressed, still if the petitioners feels dissatisfied that the compensation which is ultimately determined by the National Highway Authority under the Act of 2013, in that eventuality, they still have a remedy available with them to be invoked under Section 3G sub-section (5) by approaching the arbitrator as statutorily constituted under the said provision for the purposes of determination of adequacy of compensation, which they expect to receive under the provisions of the Act of 2013.

In the light of the aforesaid observations, this court is of the view that in order to meet the wider public interest, the interest of an individual will not prevail and, hence, the notification could not have been challenged on the ground of a non-satisfactory alignment as it has been pleaded in the writ petition.

Consequently, writ petition fails and is dismissed subject to the liberty open to the petitioners, that if on the determination of compensation by the National Highway Authority under the Act of 2013, if they find it to be unsatisfactory, they may invoke the jurisdiction of the arbitrator as provided under Section 3G(5) of the Act.

Subject to the above observations, the writ petitions stands dismissed.