»,V,1 HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.[C] No.7592 OF 2007 PETITIONER Mahanadi Educa'rion Socie'fy House No.5, Soufh‘ Avenue, Choubey Colony, Tehsi! Raipur, Disfricf Raipur, Chhaffisgarh, Represenfad through ifs Secre‘rary Shailendra Ku mar Jain. 1. Central RESPONDENTS sovernmenf Minisfry of Surface Transporf, Road Transporf and Nu'l'ional Highways, (Road Transpo rt And National Highway Deparfmenf) Mann-clay, New Delhi. 2. Compe‘ren‘l' Aufhorify, Na'fional Highways Adminisfrufion, Pension Bade, Raipur (Chhaffisgarh) 3. Project Direc‘l’or, Projeci‘ Implemeni'afian Uni'i’ Na'rional Highways Au‘l’hority of India, House ' No. 40, SecTor—Z, Geefanjali Nagar Raipur (ChhaHisgarh) 4. M/s DSC Vicon Ven‘ture’s Pvt. Ltd. C/o Raipur Express Ways Limind, 1” Floor, Jai Prakash Complex, Telibandhn Chowk, Raipur (Chho‘rfisgarh) Presen'r: Mr. Safish Agrawal, Advocafe wifh Mr. S. Shawna, Advoca‘re for ‘l'he pefi'lioner. Mr. S.K. Beriwal, Sianding Counsel for responden‘!‘ No.1. Mr. Mohammed Ali, Advoca‘re for respondeni N02 aha. Mr. C.R. 5ahu,’Advoca1'e for responden'r No.4. «M 2 oknEg (Passad on :wMay, zoos) Dhirendra Mlshra. J 1) A1 fhe ouTsef Mr. Beriwal, Standing Counsel for respondenf No.1 submifs fhu‘r he has sen? several communica‘tions to The concerned aufhor-i‘ry for obtaining insh-uctions for filing return, however, he has no1' received any ins-fruction so far. Z) The maffer is lis'fed for hearing on applicofion for vacating stay order fiied by the respondent No.3. However, Mr. Ali, learned counsel for respondent No.2 & 3 submits that return has already been filed on behalf of the respondent No.2 & 3, the petitioner has also filed rejoinder and as such, the pleadings are complete and therefore, considering the fact that stay order is operative against the construction of road, the matter be heard finally. 3) With the consent of the parties, the matter is finally heard. 4) By the instant writ petition under Article 226 of the Constitution of India the petitioner has impugned the notification dated 18.7.2007 (Annexure P-1) issued by the respondent No.1 under Section 3D of the National Highways Act, 1956 (for short ‘the Act of 1956') whereby it has been declared that on publication of the above notification the land specified in the schedule appended with the notification shall 'vest absolutely in the Central Government, free from all encumbrances. Apart from praying for quashing of the above notification, the petitioner has also prayed for issuance of appropriate writ directing the respondent No.1 to 3 to comply with the provisions contained in Sections 3B, 3C, 36, 3H, 3E of the Act of 1956 di Rule 3 of the National Highways Rules, 1957 before issuing any notification under Section 3D of the Act of 1956 and further direct them to make necessary changes in the central line and not to acquire the land of engineeringocollege of the petitioner anid shift the proposed bus sfop, which is in fronf of fhe engineering college to some vacant governmen‘l’ land. 5) Case of fhe petitioner, in brief, is That fhe peii‘l’ioner has esfablished an engineering college in 'rhe name of 'Raipur Insfi'l’ufe of Technology' and acquired 18.84 acres of land in Village Chha‘rona 6: Nawagaon for esfablishing The above insfifufe. Af'l'er obtaining necessary permissions from various aufhori‘ries including permission from The Capi-ral Area Developmenf Au'rhorify, 'rhe peti'rioner commenced fhe consfrucfion of college and hos'rel building. Nofificafion of Annexure P-9 under 5ecfion 3A (1) of fhe Acf of 1956 was published by fhe Central Governmenf on 7.12.2006 for acquisifion of land for consfrucfian of Nafional Highway No.6 under the Na‘rional Highway Developmen‘l’ Project (for short ‘the project”). The pefitioner was served with a notice dated 21.12.2006 (Annexure P-10) by the respondent No.3 informing the petitioner that they have encroached upon 0.26 meter of land which is required to be removed. The petitioner willingly removed the fencing leaving 0.26 meter area for the respondent No.3 and communicated the same vide reply dated 12.1.2007 (Annexure P—12). After studying the road map for construction of four lanes provided by the respondent No.3 the petitioner approached the respondent No.4 on 29.6.2007 (Annexure P-15) and informed that the central line of four lanes has unnecessarily been shifted towards their college due to which an area of 7-8 meters inside the campus was likely to be acquired. The petitioner further protested against the shifting of central line vide Annexure P-16 before the respondent No.3, however, the respondents without considering the representations submitted by the petitioner have issued the notification of . Annexure P-1 under Section 3D of the Act of 1956. 7) Respondent No.3‘Pr-ojecf Direc‘for in his reply has cverred 'rhaf fhe land in quesfion has been acquired for fhe pubiic purpose of canstrucfion of by-pass and widening of exisfing national highwayi NoTificnTion of infenfion to acquire was issued in 'Hne gazeffe of India on 14.11.2006, which was duiy published in fwo daily newspapers of +he area. Objecfions were invifed and disposed of in accordance with law as per Secfion 3C of 1'he Acf of 1956. Nofice was issued 1‘0 fhe pe‘iifioner for removal of encroachmen‘i and the pefi'rioner removed encroachmenf fhereafi’er. The pefifianer never submif'fed any objection offer notification under Secfion 3A of fhe Ac'r of 1956. Notifica‘rion under Section 3D regarding declara‘rion of acquisifion can be issued affer provisions of Secfion 3C have been complied wi‘rh. Secfion SB of fhe Ac? of 1956 confers power on any person aufhorized by fhe Cenfral Governmenf fo do ac‘is enumerafed in this section after notification has been issued under sub-section (1) of Section 3A of the Act of 1956i It has been further averred that possession of the land can be taken only after the amount of compensation is determined under Section 36 and deposited with the competent authority in pursuance of Section 3H (1) and compliance of Sections 36 di 3H are under process. The petitioner has wrongly impleaded respondent No.2 as the ‘competent authority', whereas, the Sub Divisional Officer (Civil), Raipur has been authorized to act as ‘competent authority' vide gazette notifications dated 29.3.2006 6i 31.3.2005 of Annexure R-I di R—Z. It is not open to the petitioner to question the placement of central line, as positioning of the proposed central line is matter of highway design speed and other technical design parameter. Every project has its original plan prepared as permengineering requirements The alignment of proposed highway, longitudinal 6i cross slopes and curvature of the road etc. are taken into accounf while preparing plan. The proposed ceMml line canno? be shif‘red a1- fhe ins'fance of any individual. I? has been caiegorically aver-red llmf fhe land ucquisifion praceeding has been commenced affer due observance of The provisions of The Ac? of 1956. 8) In fhe rejoinder fo fhe re‘rurn, The pefitioner has aver-red 'rhal' 'lhe nofices of Annexure P-1O 6i P-11 were issued by responden'r No.2 and no+ by fhe Sub Divisional Officer (Civil), who was no‘rified as 1’he ‘compefent aufhorify’. 9) Mr. Salish Agarwal, learned counsel for fhe petitioner has impugned fhe no‘l’ifica'rion of Annexure P-1 on fhe grounds 1'ha‘l:- Before issuance of notificafion under Secfion 3D of 'l’he Acf of 1956, compensafion was required 1’0 be defermined by fhe competen‘l author-Hy under Seci‘ion 36 of fhe Ac? of 195$ and the compensation, so determined, was required 1’0 be deposited by fhe Central Governmen‘r wifh The competenf au'rhorify. The amoun'r deposi'l'ed was required to be paid to fhe person enfifled under Secfion 3H and only fhereaffer fhe compefenf aufhorify could issue nofice 1’o the owner or any o‘rher person who is in possession to surrender or deliver the possession under Secfion 3E of fhe Acf of 1956. There is fatal non-compliance of 5ecfions C, 36, 3H & 3E of fhe Act of 1956 and notificat’ion has been issued under Sec‘rion 3D of the Act of 1956. Representations (Annexure P-13, P-14 é P—15) of the petitioner against the shifting of central line have not been decided by the competentjgjhoritLtil'l’ date 3 @ . The whole shif'ring of the cemral line has been done af 'rhe behesf of respondenf No.4, who keeps iH-will agains? the promofer of fhe pefifioner. o Responder}? No.2 fo 4 have no‘r produced any muferia! f0 jus‘rify the shifi'ing of cem’ru! iine. IT has been simply averred in 1'he refurn That a!ignment of the road has been fixed keeping in view the design censideration without specifying the details of the same. 10)On the other hand, Mr. Mi, Iearned counsel appearing on behalf of respondent No.2 & 3 vehemently argued that the project of widening the existing nationai highway to four lanes was duly approved by the Central Government. The above project is a time bound project and it is to be completed in six phases. Acquisition proceedings were initiated by issuing notification under Section 3A of the Act of 1956 whereby objections were invited from the land owners against acquisition and the same were duly disposed of under Section 3C and after the stage of Section 3C was over, notification under Section 3D was published. The alignment of the national highway is fixed after detail project report was prepared having regard to the various technical parameters. The petitioner did not submit any objection within the stipulated period after publication of notification under Section 3A (1) of the Act of 1956. The petitioner submitted representations to respondent No.4 whereby the contractor. who is responsible for execution of work, was requested to 'shift the central line to the left on the farther side of the institute, as the end of the road is entering inside the campus of the institution by about 8 meters. No malafide or arbitrariness has been imputed in the above representations. The alignment of road cannot be shifted on me're’asking of the land owner, as the same is fixed after detailed survey report asvper tecical specification. Determination oL/,, hn @ compensufion, its deposifion wifh The compefen? aufhori‘ry and disbursemen'r by fhe compefen'r au‘rhorHy are fhe sfages which are f0 be complied wi‘th affer fhe notificafion under- Sewion 3D of 'H'Ie Ac'r of 1956. Process of determinufion of compensu'l'ion is already underway and fhe same shal! be complefed sharfiy. The possessian of acquired land can be taken under Seclion 3E only affer amoun'l of compensation delermined by lhe compe‘l’en‘t authorily has been deposited by 1'he central governmenf under Secfion 3H of fhe Acf of 1956 wi‘rh fhe compefen‘r au+horify‘ In fhe ins'ran'l' case fhe pefifioner has no? been directed To handover fhe possession of fhe land in quesfion. 11) I have heard learned counsel for fhe pariies. 12)If is not in dispu‘re that prior fo issuance of notification of Annexure P-1 under Section 3D of the Act of 1956, notification dated 14.11.2006 under Section 3A (1) of the Act of 1956 was published in the Gazette of India (Extraordinary). Substance of the above notice was also published in two newspapers of the area on 7.12.2006 whereby objections were invited and objections, so received, were considered and disallowed by the competent authority. The petitioner has not controverted the above fact though earlier notification has not been filed along with this petition. From perusal of the representations submitted by the petitioner it is evident that the petitioner simply requested the agency. who was responsible for construction, to shift the central line of the road on the father side of the institution, as the end of the proposed road penetrates 7-8 meters inside the institution. No malafide, as aileged in the instant petition, has been mentioned in the representations. Representations are also not addressed to the competent authority. \ 13) In view of fhe above, in fhe consider-ed opinion of This Cour-1, fhe objec1'ion of The pe'ri‘l'ioner regarding alignmen'r of fhe nafionai highway canno'r be en‘rermined, as The same is fixed affer defailed survey by fhe fechnical experfs for fhe whole sfrefch of highway under- consfrucfion and fhe question of aiignmenf of highway cannof be gone info by fhe Courf as fhe some requires fechnical expertise and knowledge. From fhe documents availabie on record aiso if is observed fhaf the petitioner was aware of the notification under 5ection 3A, however, no objection was submitted by the petitioner before the competent authority. Even in the representation to respondent No.4 a request for shifting the ali9nment was made without assigning any justification or reason for the Same. 14) So far as the submission of learned counsel for the petitioner that before issuance of notification under Section 3D of the Act of 1956 it was incumbent upon the competent authority to ascertain the amount of payable compensation is concerned, perusal of Section 3D of the Act of 1956 makes it clear that where no objection under sub-section (1) of Section 3C has been made to the competent authority within the specified period or where the competent authority has disallowed the objection under sub-section (2) of Section 3C, the competent authority is required to submit report to the Central Government and on receipt of such report the Central Government shall declare by notification in the official gazette that the land should be acquired for the purpose or purpoSes mentioned in sub-section (1) of Section 3A the Act of 1956. On publication of such declaration under sub-section (1) of Section 3D the land shall vest absolutely in the Central Government free from all encumbrances. Sub-section (4) of Section 3D mandates that a declaration made by the Central Government in sub—section (1) shall not be called in question 193 in any couri’ or by any ofher authorify. However, the power fa fake possession of fhe land vesfed in fhe Cenfrol Governmen‘t under- sub-secfion (2) of Secfion 3D of fhe Ac'r of 1956 is availuble only offer- fhe omoun? of compensafion is defermined by fhe compefen‘f au‘rhori'ry under Secfion 36 and omounf so defermined has been deposifed under sub-secfion (1) of fhe Secfion 3H wifh fhe competen'r aufhority by The Cenfral Government Vesfing under Secfion 3D (2) arises on decloru‘rion by fhe Cen‘rral Governmenf under Secfion 3D (I). The declorofion is i'he resuH of disposal of The objections under Sec‘rion 3C. Each sfep is o consequence of earlier step and in fhaf sense all ‘rhe sfeps are linked 'ro inifial no‘l’ificofion for acquisi'l'ion under Sec‘rions 3A (1) a; (2). Since *he ini'rial nofificafion has no? been challenged and the same is in accordance wiih law, fherefore, now i‘r is nof open fo the pefiiioner fo challenge fhe validi'iy of no‘iifica'l'ion under Sec‘i'ion 3 (A) (1) of fhe Acf of 1956. 15)In The resulf, for fhe aforesaid discussion‘ ‘rhere is no merif in fhe insfan'r pefifion, 'rhe' same deserves To be dismissed and if is accordingly dismissed. 16) No order as i0 cosis. Sd/— Dhirendra Mishra Judge i l i l i Roshatv-