A. F.R HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon'ble Shri Raieev Guota, C.J. & Hon^ble Shri Sunil Kumar Sinha. J. Writ Appeal No. 178 of 2008 Mahanadi Education Society Versus Central Government and others JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON»BLE SHRI JUSTICE RAJEEV GUPTA -3 ^-^^- Sd/- Chief Justice Post for Judgment: ^/03/2009 Sd/- Sunil Kumar Sinha Judge A^^ HIGH COURT OF CHHATTISGARH, BILASPUR D.B. HON'BLE SHRI RAJEEV GUPTA, C.J. & HONB'LE SHRI SUNIL KUMAR SINHA, J. WRIT APPEAL No. 178 of 2008 APPELLANT Mahanadi Education Society, House No.5, South Avenue, Choubey Colony, Tehsil, Raipur, Distt. Raipur, Chhattisgarh., represented through its secretary: Shailendra Kumar Jain RESPONDENTS 1 Versus Central Government, Ministry of Surface Transport, Road Transport and National Highways (Road Transport and National High Way Department), Mantralay, New Delhi Competent Authority, Sub- Divisional Officer, Raipur, National Highways Administration, Pension Bada, Raipur (Chhattisgarh). Project Director, Project Implementation Unit National Highways Authority of India House No.40, Sector-2, Geetanjali Nagar, Raipur (Chhattisgarh). M/s. DSC Vicon Ventures Pvt. Ltd., C/o Raipur Express Ways Limited, 1st Floor, Jai Prakash Complex, Telibandha Chowk, Raipur (Chhattisgarh). (Writ Appeal under Section 2 of Chhattisaarh Hiah Court rAppeal to Division Benchl Act 2006) W.A.No. 178/2008 Appearance: Mr. Satish Agrawal with Mr. Ankit Singhal, counsel for the appellant. Miss Sharmila Singhai, counsel for respondents No.l 85 2. Mr. Mohmmad Ali, counsel for respondent no.3, Mr. H.B. Agrawal, Sr. Advocate with Miss Rinki Tamrakar, counsel for respondent no.4. JUDGMENT ( /^-.03.2009) Following judgment of the Court was delivered by SUNIL KUMAR SINHA, J, (1) Being aggrieved with the order dated 09th May, 2008 passed in W.P(C).No.7592 of 2007 by the learned Single Judge of this Court, the appellant/petitioner has filed this writ appeal. By the impugned order, the learned single judge has dismissed the wfit petition filed by the appellant for the following reliefs: 7(a) This HonlDle Court may pass an appropriate order, issue an appropriate writ, command to quash the notification dated 18.7.2007 Annexure P-1; (b) This Hon'ble Court may pass an appropriate order, issue an appropriate writ, direction, command directing the respondents 1 to 3 to comply with the provisions contained in Section 3B, 3C, 3G, 3H, 3E of the Act and Rule 3 of National Highway Rules, 1957 W.A.NoJ 78/2008 before issuing any notification under section 3D of National Highways Act; (C) This Hon?ble Court may pass an appropriate order, issue an appropriate writ, direction, command directing the respondents 1 to 3 to make necessary changes in the center line and do not acquire land of Engineering College of the petitioner when there is an option to shift the center line which is technically possible; (D) This Hon'ble Court may pass an appropriate order, issue an appropriate writ, direction, command directing the respondents 1 to 3 to shift the proposed bus stop which is in front of Engineering College to a vacant government land which is available just 500 yards from Engineering College towards Arang; (E) This Hon'ble Court may further be pleased to pass any other, further, necessary order(s) deemed fit and necessary in the facts and circumstances of the matter. (2) According to the writ petition, the brief facts are that the appellant has established an Engineering College in the name of 'Raipur Institute of Technology' by acquiring 18.84 acres of land in village Chhatona & Nawagarh. After obtaining necessary permission from various authorities, including Capital Area Development Authority, the appellant has constructed college and hostel building on a portion of said land. By notification dated 14.11.2006 issued u/s 3A(1) ofThe National Highways Act, 1956 (hereinafter referred to as the "Act of 1956"), the central W.A.No. 178/2008 Government declared its intention to acquire some lands for the purposes of construction/widening of National Highway No.6 (N.H.6) under the National Highway Development Project. The appellant was served with a notice dated 21.12.2006 informing that they have encroached upon 0.26 meters of land which is required to be removed. It was accordingly removed. After some time, the appellant approached respondent no.4 on 29.6.2007 and inforraed that the central line of 4 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 appellant further approached respondent no.3 against the shifting of Central Line by filing representation but ultimately a notification dated 18.7.2006 u/s 3D of the Act 1956 was issued. It is at this stage, the writ petition was filed for the above reliefs. (3) In reply respondent no.3 contended that the land in question has been acquired for public purposes of construction of by-pass and widening of existing national Highway. Notification of intention to acquire was duly published in the gazette of India and was also published in two daily news papers of the area. Objections were invited and disposed of in accordance with the provisions of section 3C of the Act, 1956. The appellant never submitted any objection after notification u/s 3A of the said Act. It further contended that it was not open to the appellant 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 ~"^ W.A.No. 178/2008 (^y project has its original plan prepared as per engineering requirements. The alignment of proposed highway, longitudinal 85 cross slopes and curvature of the road etc., are taken into account while preparing the plan. The proposed central line cannot be shifted at the instance of any individual. (4) The appellant challenged the validity of acquisition on account of non-compliance of various provisions of the Act of 1956. It also challenged the acquisition and the final notification on the ground that the same was issued without deciding the representation of the appellant by the competent authority till date and that the respondents have not produced any material to justify the shifting of central line of the proposed N.H.6. (5) The arguments advanced by learned counsel for the appellant did not find favour by the learned single Judge as it was held that the final notification was issued after due compliance of the provisions of the Act, 1956; the appellant did not file any objection before the concerned authority under the provisions of section 3C of the Act; the appellant simply requested the Agency, which was responsible for construction, to shift the central line of the road on the farther side of the institution, as the end of the proposed road penetrates 7-8 meters inside the institution; no malafides were alleged in the instant petition; the representations were not made to the competent authorit^and by holding all this, the writ petition was dismissed. The learned single Judge also obseryed that since the \. W.A.No. 178/2008 notification u/s 3A(1) has not been challenged by the appellant/petitioner and the same was in accordance with law, therefore, now it is not open to the appellant/petitioner to challenge the validily of notification issued u/s 3D of the Act. (6) Mr. Satish Agrawal, learned counsel appearing on behalf of the appellant/petitioner argued that the view taken by the learned single Judge that since the notification u/s 3A was not challenged, therefore, the subsequent notification u/s 3D cannot be challenged by an aggrieved person is not correct. He referred to a decision of the Division Bench of Madhya Pradesh High Court rendered in the matter of Devi Prasad Sinah -vs- State ofMP.. 2008 f3) MPHT 471 (DB). (7) In the said decision, the M.P. High held "that it was not necessary for the appellant to challenge the notification u/s 3-A of the Act of 1956 before challenging the notification u/s 3D of the said Act because by the notification u/s 3A, the Central Government only evinced its intention to acquire the land of the appellant for the purposes mentioned in the notification and called for objections by persons having interest in the land. It is by the notification u/s 3D of the Act that the land of the appellant was acquired by the Central Government free from all encumbrances. Therefore, the flnding of the learned single judge that the appellant cannot question the acquisition of his land because he has not challenged the notification u/s 3-A was misconceived." We are in respectful agreement with the above y W.A.No. 178/2008 view taken by the Division Bench of the M.P. High Court, however, we may supplement it by our reasonings infra. A notification u/s 3A is a notification of an intention regarding acquisition of land in question, by which a person may not be aggrieved but he may further be aggrieved by the non-observance of the procedure laid down for acquisition as envisaged u/s 3B and 3C of the Act and by many other ancillary factors which may be incidental in between the proceedings initiated after notification u/s 3-A and before the declaration u/s 3D of the Act and in such situation, his grievance would be redressed by challenging notification u/s 3D only and he may not be required to challenge the notification u/s 3A. This is simply based on the logic that the intention of the Government for acquisition of land for public purposes may not be opposed,but the manner in which the land is being acquired even for the public purpose may be opposed by aggrieved persons. it is for this reason, the legislature has prescribed various provisions which are inter- linked with each other as has also been held in this case. Therefore, we hold that for challenging a notification u/s 3D of the Act of 1956, a notification issued u/s 3A of the Act is not essentially required to be challenged. (8) A perusal of the impugned order would show that the petition has not been dismissed absolutely on the above ground. Rather it has been dismissed by holding fhat the appellant did not file any objection as per the provisions of the Act and the \ concerned authority has decided the matter of acquisition after L. W.A.No. 178/2008 due observance of the procedure laid down for the same. The petitioner has simply made representations before respondent no.3 who was not the competent authority to decide it. The Court has further held that the decision taken by the technical experts and the highway designers cannot be gone into by the court as the saine requires technical expertise and knowledge. We have also examined the provisions of the Act. Section 3-A of the Act, 1956 deals with the power to acquire land etc. Sub- section(l) of section 3-A says that where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. Sub- 8ection(2) deals with contents of the notification and sub-section (3) requires that the competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. Section 3-B deals with the Power to enter for survey, etc. and thereafter section 3-C relates to hearing of objections. For ready reference, we raay quote the contents of section 3C which reads as under: 3C. Hearing ofobjections-(1) Any person interested in the land may, within twenty-one days from the date of publication ofthe notification under sub-section (1) of section 3A, object to the use of fhe land for the purpose or purposes mentioned in that sub-section. W.A.No. 178/2008 9^> (2) Every objection under sub-section (1) shall be made to the competent authority inWriting and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation,- For the purposes of this sub-section, "legal practitioner has the same meaning as in clause (i) of sub-section (1) of section 2 ofthe Advocates Act, 1961 (25 of 1961). (3) Any order made by the competent authority under sub-section (2) shall be final. (9) It is after all this, a declaration of acquisition has to be made u/s 3-D which provides that where no objection under sub-section (1) of section 3-C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub- section (2) ofthat section, the competent authority shall, as soon as may be, submit a report accordingly 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 3-A. Sub-section(2) provides that on the publication of the declaration under sub- section (1), the land shall vest absolutely in the central ^^^^;^ ks.. 10 W.A.No. 17872008 Government free from all encumbrances. In the present case, admittedly no objections were filed by the appellant u/s 3C ofthe Act and they had simply moved representations to the authorities who were totally unconcerned with the matter in question and after due observance of theprovisions of the above sections, the impugned notification u/s 3D of the Act, 1956 has been issued. We do not find any fault in the issuance of such notification on the ground as taken by the appellant that without deciding the representation filed by the appellant, the notification u/s 3D has been issued. In fact, the appellant ought to have filed an objection u/s 3C which it has not done and for that the appellant itself would be responsible. (10) Even ofherwise also we have examined the matter and we flnd that no portion of building structure is going to be effected by such acquisition of 7-8 meters of land inside the campus of the appellant's Engineering College. Even the College building and the hostel building are far away from the last point of the land which has been acquired, therefore, the acquisition is not going to affect either the college building or the hostel of the appellant's college and no substantial damage is going to be caused. The lay out of the National Highway to be constructed is prepared by the technical experts and the question of alignment of Highway cannot be examined by a Court under Article 226 of the Constitution as that is based upon various technical parameters and a great expertise is needed for all this. w: 11 W.A.No. 178/2008 (11) Shri Agrawal has lastly argued that the proposed bus- stand in front of college would also create a great problem to the students and the institution. The relief in this regard was sought in Para 7(d) of the writ petition. The appellant/petitioner has given the geographical scenario vide Paras 6.15 and 6.16 of the writ petition regarding availability of the vacant land near the Engineering College which may be utilized for the purposes of bus-stand. The appellant has only stated that construction maintenance and operation of the bus-stop in front of engineering college shall, not only put the approval by the AICTE into difficulty but it shall unnecessarily cause inconvenience to the students. It has further been stated that keeping a bus- stand just in front of engineering college shall also create hazards to the students entering into the college coming from hostel and from the city. Learned counsel for the appellant could not point out any provision that if a Highway bus-stand is made in front of/near the engineering college, it would be violative of the norms of AICTE. We have experience that the people, at large, of a particular area/sector or the educational institutions or the institutions running for public interest always demand and pray for a bus-stop/stand near their area/institution with a view to provide extra facility to the people/students. The project committee has its own plans. If according to their plan, a bus- stop has to be made in front of college and the same is not in violation of any Act or Rules, the same may be held to be done in 12 W.A.No. 178/2008 (^ public interest. We do not find any force in the above arguments raised by learned counsel for the appellant/petitioner. (12) For the reasons stated hereinabove, we do not find any force in this appeal. The appeal is liable to be dismissed and is hereby disraissed. (13) No order as to costs. Sd/- Chief Justice SdJ- Sunil Kumar Sinha Judge /Rao/