1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :ORDER: M/s. Perfect Thread Mills Ltd. Vs Union of India & Ors. **** S. B. CIVIL WRIT PETITION NO.5498/2004 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA **** Date of Order : 4th March, 2005 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA Mr.Vineet Kothari, for the petitioner. Mr.M.Mridul Sr. Advocate with Mr. Sachin Sood for the respondent no.1 and 2. BY THE COURT: Heard learned counsel for the parties. The petitioner company registered under the Companies Act, preferred this writ petition alleging that on 28.9.2004 a notification under Section 3A of the National Highway Act, 1956 was issued as certain land is required for constructing a National Highway and that Highway is to pass through the industrial unit of the petitioner, which is situated in Amberi Industrial Area, Udaipur. According to petitioner one 2 industrial unit M/s. Arihant Tiles & Marbles is also situated near the industrial unit of the petitioner. The petitioner's allegations are that to give undue favour to M/s. Arihant Tiles & Marbles, the respondent National Highway Authority of India intending to change the layout plan of the proposed National Highway. It is also submitted that even Udaipur Chamber of Commerce and petitioner obtained report from the GEO Technical Survey for proposed alternative alignment, which is referred as alignment-2, but the said proposal was rejected on the grounds that it involved cutting of fragile strata of hill whereas there are no fragile hill strata in the proposed part of the Aravali Mountain Range. The petitioner also submitted that this alternative alignment-2 was also not considered for extraneous reasons as there was influence of marble dealers lobby, who have purchased huge chunks of agricultural lands along side the selected route and wants to encash its commercial value. According to petitioner, the suggested alignment-2 is likely to cause least of dislocation of adjacent industrial units. According to petitioner, the petitioner submitted representations to the National Highway Authorities, but that has not been responded. Learned counsel for the petitioner vehemently submitted that the entire action of the officers of the National Highway Authority in the matter is malafide and for that purpose learned counsel for the petitioner vehemently submitted that though the notification under 3 Section 3A has been issued and petitioner has apprehension that the National Highway Authority may change the plan for which they themselves put-forward arguments before the Public Consultation Meeting. According to learned counsel for the petitioner in the Public Consultation Meeting held on 24th July, 2004 when the question was put to the respondent no.2 whether the possibility has been explored if only one factory would be affected, the Consultants intimated that the feasibility of shifting the centre line by 10 meter north and sought has already been examined and in both cases, HT pole coming in way of the alignment, which will be very difficult to shift. Despite above, now the respondent authority is admitted that they are proposing to deviate from the original plan. It is also submitted that in the communication dated 19th August, 2004 (Annex.6), the respondent authority clearly opined that in case the layout plan will be changed without any strong reason, it will cause doubt and will create dissatisfaction. According to learned counsel for the petitioner, the respondent authority even without waiting for the final decision in the mater and without there being any decision on the objections of the petitioner, issued notices inviting tenders, which clearly shows that the respondent authority is bent upon to proceed with the altered plan and for which even notification under Section 3A has not been issued. According to learned counsel for the petitioner from the reply and the documents submitted 4 by the respondent authority it is clear that the respondent authority is bent upon to alter the plan and by this, good part of the petitioner's factory will fall in the Highway area. It is submitted that the petitioner's unit is sick unit and matter is pending before this Court in the Company Petition and petitioner is hopeful of getting the financial aid from the Bank or other Financial Institutions for petitioner's survival and in case, the large area of the petitioner's unit will be acquired, the petitioner's unit may not even survive, which will also cause huge loss to large number of petitioner's employees. Learned counsel for the petitioner invited attention of the court to the various maps and heavily assailed the action of the respondent authority by demonstrating that the respondent authority even is bent upon to measure the road width wrongly by taking the road width not from the center, but from the point, which will affect more to the petitioner's land. Learned Senior Advocate Sh.M.Mridul with learned counsel Sh.Sachin Sood appearing on behalf of National Highway Authority vehemently submitted that the writ petition of the petitioner is pre- mature and also submitted that the allegations levelled in the writ petition are absolutely bald allegations and have been levelled in the 5 manner so as to condemn all the officers of the National Highway Authority of India and the State Administration. It is also submitted that the allegations levelled are not against any of the officer either of the National Highway Authority of India or of District Administration. It is submitted that all the objections will be considered by the competent authority and the petitioner himself admitted that the matter is pending before the competent authority. Therefore, the writ petition of the petitioner is pre-mature and deserves to be dismissed simply on this ground, for which learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court delivered in the case of Ulagappa & Ors. Vs. Divisional Commissioner, Mysore & Ors reported in (2001) 10 SCC 639. It is also submitted that the petitioner tried to submit opinion, which petitioner could obtain, but even assuming for the sake of arguments that there may be two opinions in the matter of construction of National Highway, still there is no reason for this Court to inquire into the matter before it is decided by the competent authority under the relevant provision of law and for which the authority has been empowered by law. Learned counsel for the respondent authority also submitted that if there will be any need of change in plan, the due process will be followed and if needed, the notifications will be issued 6 and there is no reason to hold that the respondent will not act fairly. It is also submitted that to cut short the time, if the respondent authority is not staying its hand in the matter for which the authority is not required to stay its hands then it cannot be condemned. It is also submitted that the construction of National Highway is a matter of public importance and the authority if proceeding with speed, the petitioner cannot have any grievance. It is also submitted that even if there is need of sacrifice then need of individual should be available for the larger interest of the public. I considered the submissions of learned counsel for the parties and perused the record. It is true that the petitioner raised his grievance before the concerned authority time and time, but at the same time, it is clear that petitioner's objections are under consideration before the competent authority. The petitioner is also not disputing the jurisdiction of the said authority, who is SDM of the District Udaipur. The petitioner failed to make out any case rather substantially there is no allegation against the SDM, Girwa, District Udaipur that the said authority will not pass appropriate order after dealing with all the objections of the parties interested in the matter and will not consider the objections of the petitioner in correct perspective. The stand taken by the respondent authority at different 7 time itself cannot be reason to believe to draw an inference of ill motive or malafide and respondent have every right to justify their change in stand. This court is not persuaded to take a view that simply because in the process of construction of National Highway if the authority is required to alter the plan, it always can be looked into with doubts. Here in this case, the process for taking a final decision is in progress and very many facts may come to the notice of the concerned persons, who may examine the matter at various levels and may take a decision. If the petitioner has any doubt, that can be cleared only when the factual aspects are looked into by the competent authority and there appears to be no reason for this Court to take away that jurisdiction of the authority and decide the matter itself. In view of the above reasons and involvement of several disputed questions of facts and in view of the fact that the writ petition is pre- mature, the writ petition of the petitioner deserves to be dismissed, hence dismissed at admission stage. (PRAKASH TATIA), J. c.p.goyal/-