C.W.P.No.16619 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 28 .01.2011 C.W.P.No.16619 of 2009 RLF Industries Limited and others ....Petitioner(s) vs. National Highway Authority of India and others ....Respondent(s) C.W.P.No.17780 of 2009 M/s Hilton Rubbers Limited ....Petitioner(s) vs. Union of India and others ....Respondent(s) C.W.P.No.19950 of 2009 Jagdish Kumar Jain and others ....Petitioner(s) vs. Union of India and others ....Respondent(s) C.W.P.No.1021 of 2010 Jagbir Singh ....Petitioner(s) vs. Union of India and others ....Respondent(s) C.W.P.No.1740 of 2010 M/s Jashanmal Devi Chand and sons Private Limited and others ....Petitioner(s) vs. National Highway Authority of India and others ....Respondent(s) C.W.P.No.16619 of 2009 -2- C.W.P.No.6207 of 2010 M/s Spring Water Properties Private Limited & anr. ....Petitioner(s) vs. National Highway Authority of India and others ....Respondent(s) C.W.P.No.6282 of 2010 M/s T.G.S. Engineering Industries and another ....Petitioner(s) vs. National Highway Authority of India and others ....Respondent(s) C.W.P.No.10660 of 2010 Varinder Singh ....Petitioner(s) vs. Union of India and others ....Respondent(s) C.W.P.No.14108 of 2010 M/s Hilton Rubbers Limited ....Petitioner(s) vs. National Highway Authority of India and others ....Respondent(s) C.W.P.No.16451 of 2010 Contitech India Private Limited ....Petitioner(s) vs. Union of India and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- S/Sh.Sanjiv Sharma, Sr.Advocate with Shekhar Verma, Shailendra Jain, P.K.Mutneja, H.P.Verma, P.S.Chhinna, C.W.P.No.16619 of 2009 -3- Advocates, for the petitioners. Mr.Salil Sagar, Sr.Advocate with Mr.Vikas Soni & Mr.Samarth Sagar, Advocates, for Union of India & National Highway Authority of India. Ms.Palika Monga, DAG, Haryana. Mr.Kamal Sehgal, Standing Counsel for HSIIDC. *** Augustine George Masih, J. By this order, we propose to decide C.W.P.Nos.16619, 17780& 19950 of 2009, 1021, 1740, 6207, 6282, 10660, 14108 and 16451 of 2010 as common questions of fact and law are involved therein. In these writ petitions, challenge has been posed to The National Highways Act, 1956 (Amendment Act No.16 of 1997) (hereinafter referred to as NH Act) (Annexure P-20) being ultra vires, arbitrary, unconstitutional and violative of Articles 14, 16 and 19 of the Constitution of India, with a further prayer for issuance of a writ of Certiorari for quashing the notifications dated 30.5.2008 issued under Section 3 (A) (1) (Annexure P-10), 27.5.2009 issued under Section 3 (D) (1) and (2) (Annexure P-16) and 12.8.2009 issued under Section 3 (A) (1) (Annexure P-17) of the NH Act. With the consent of counsel for the parties, C.W.P.No.16619 of 2009 R.L.F. Industries Ltd. And others vs. National Highway Authority of India and others, is taken as a lead case and the facts are, thus, taken from the said writ petition. Petitioner No.1 is a manufacturing unit situated on three contiguous plots falling in Khasra Nos.21/5, 21/6, 21/7, 21/8 and 21/26. All C.W.P.No.16619 of 2009 -4- the three plots are being used by petitioner No.1 for its production, storage and residence of factory workers which has super-structures built thereon. After purchase of agricultural land in the year 1982, Change of Land Use (hereinafter referred to as CLU) was applied for. On 17.4.1989 (Annexure P-1), Director, Town & Country Planning Department, Haryana, accepted the application and granted permission for CLU for the above plots, totalling 20 kanals and 10 marlas. On 17.10.1990, the District Town Planner, Sonepat, approved building plan of petitioner No.1 under the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (Annexure P-2). On 11.10.1991, the Directorate of Industries, Haryana issued a permanent registration certificate certifying it to be a small scale industry (Annexure P-3). Petitioner No.1 duly got registered itself with the Central Excise Department, Sales Tax Department and under the VAT Act. Trader Identification Number (TIN) was also assigned to the petitioner. Land of the petitioners is located by the side of Grand Trunk Road (G.T.Road) at village Badkhalsa near Karnal. The entire area on both sides of the GT Road is an industrial hub. In the year 2005, respondents constituted a Monitoring Committee for planned development of Eastern Peripheral Expressway (for short EPE) and Western Peripheral Expressway which is popularly known as Kundli Manesar Palwal Expressway ( hereinafter referred to as WPE/KMPE). The Authority decided that inter-section of these two expressways should be planned at K.M. Stone No.39.725 on the National Highway No.1 (for short NH-1) i.e. G.T. Karnal Road. As per this proposed plan, almost the entire industrial hub in the area was left out of the purview of acquisition. Haryana State Industrial Infrastructure Development Corporation ( for short HSIIDC ) i.e. C.W.P.No.16619 of 2009 -5- respondent No.7 pressed that the proposed inter-section should be at K.M. Stone No.36.083 and not at Km. Stone No.39.725. The reason assigned for such change was that HSIIDC had already spent a few crores of rupees for acquisition of land taking Km. Stone No.36.083 as the intersection point with NH-1 and on the insistence of the Government of Haryana, the proposed intersection was finalized at Km. Stone No. 36.083. This exercise was done arbitrarily and with a mala fide intention to save vacant land belonging to influential persons. The National Highway Authority of India (for short NHAI) i.e. respondent No.1 issued notification under Section 3(A) (1) of the NH Act on 30.5.2008 (Annexure P-10) for acquisition of land adjoining NH-1 for construction of intersection of Eastern and Western Expressways. The public purpose mentioned therein was for construction of “Eastern Peripheral Expressway”. The intersection contained four loops and the land of the petitioners came within loop No.4. Three plots being used by petitioner No.1 are outside the proposed loops and it is only some area of plot situated in khasra No.216 which is required for raising pillars to support the elevated road/loop No.4. Area falling in Khasra Nos.21/5 and 21/7 is not required at all for construction of loop No.4 or for the elevated road. Objections were invited and petitioners filed their objections under Section 3 (C ) (1) of the NH Act wherein they requested for the release of their land from the proposed acquisition. It was submitted that it is a running industry and has all valid permissions from statutory authorities to run its operations. Alternatively, it was requested that the area required for construction for elevated road/loop No.4 which falls under Khasra No.21/6 be acquired and rest of the land upon which the unit is situated falling in C.W.P.No.16619 of 2009 -6- Khasra No.21/5 and 21/7 be released from proposed acquisition. Similar treatment was prayed for as in the case of Toyo Springs Ltd. where only the minimum required area falling under the proposed road stood acquired and the rest was released. Objections were considered by respondent No.1-NHAI, 2-Union of India and 4-Competent Authority-cum-District Revenue Officer, Sonepat. The same were partly accepted and notification dated 27.5.2009 (Annexure P-16) under Section 3 (D) (1) and (2) of the NH Act was issued vide which only a small portion of land of the petitioners falling in Khasra No.21/6 was sought to be acquired, leaving rest of the petitioners' land falling in Khasra Nos.21/5 & 21/7. Subsequently, another notification under Section 3(A)(1) of the NH Act was issued on 12.8.2009 (Annexure P-17) by respondent No.1- NHAI. In this notification, the purpose mentioned was the same as in previous notification dated 30.5.2008 (Annexure P-10). Once again, the respondents No.1, 2 and 4 notified land of the petitioners for acquisition situated in Khasra Nos.21/5 & 21/7. This notification had come merely after 2 months from the earlier notification dated 27.5.2009 issued under Section 3(D)(1) and (2) of the NH Act vide which this very land was left out from acquisition on an objection filed by the petitioners. No reason for re- notifying the land of the petitioners for the same purpose has been given in the notification. Petitioners again filed objections on 26.8.2009 (Annexure P-18). They hired the services of highly specialized Engineers-cum- Consultants and prepared three alternative options for the proposed intersections which were more cost effective and beneficial to the State. It was pleaded that it would be impossible for petitioner No.1 to survive and revive if it is uprooted from the present site, as the petitioner being a small- C.W.P.No.16619 of 2009 -7- scale labour intensive industry fulfills social objective and gives employment to 35 workers and in such a situation their families would be uprooted and ruined. As per the petitioners, the entire proposed project has been arbitrarily planned. On one side of the GT Karnal road (NH-1), the respondents have invoked NH Act for acquisition of land and on the other side of the land i.e. barely 100 feet across, the Land Acquisition Act, 1894 (for short 'the LA Act) has been invoked for acquiring the land. Both the areas fall in the State of Haryana and admittedly only road dividing the lands is NH-1. By invoking provisions of two separate enactments in the same area, identically situated persons located just across the road are dealt with differently under different Statutes. Different parameters are being applied not only for acquisition of the land but the market value is being assessed differently. While under the NH Act, the provisions of the LA Act are not applicable, however, they are being deprived of the benefit of solatium and interest as provided in Sections 23 & 28 of the LA Act. This has been pleaded on the basis of the fact that the provisions of the LA Act are not applicable to the NH Act as per Section 3 and Section 3 (J) & 3(G) of the NH Act being ultra vires the Constitution of India in so far as they deny solatium and interest to the land owners. Apart from this, it has been pleaded that the petitioners whose lands have been acquired under the NH Act would be deprived of the benefit of the policy of rehabilitation and re-settlement of land owners-land acquisition oustees as notified by the State of Haryana vide notification dated 7.12.2007. The compensation awarded for compulsory acquisition of property must be just and equivalent to the value of the land of which a C.W.P.No.16619 of 2009 -8- person is deprived of and merely because two enactments have been pressed into service, the similarly placed persons cannot be deprived of the benefit to which the others are entitled to. It is further the contention of some of the petitioners in this bunch of writ petitions that since the land was earlier left out of acquisition when the land was acquired for the Rajiv Gandhi Education City for the reason that they were running industrial units or had construction thereon they would be deprived of the benefit of the policy of the Government of Haryana whereas the land owners whose land was acquired under that notification which was subsequently transferred to the EPE would be entitled to the benefit of the policy framed by the State of Haryana, thereby amounting to blatant discrimination. On the basis of above pleadings, prayer has been made for quashing of the impugned notifications and the provisions of the NH Act. Respondents No.1 and 2, on the other hand, have submitted that in terms of Section 4 of the NH Act and the Rules made thereunder, National Highways vest in the Union of India and the NHAI acts as the Executing Agency in respect of stretch of NH vested in or entrusted to it by the Central Government. The EPE stands notified as NH NE-II vide notification dated 30.3.2006 and was entrusted to NHAI vide the same notification. Thus, the stretch of NH-1 and NH-NE-II or Eastern Peripheral Expressway (EPE ) falling in the State of Haryana is entrusted to NHAI. The present land acquisition relates to the junction of inter-change falling under the EPE and has been notified under NH Act. The land acquisition for inter-change on NH-1 is a part and parcel of land acquired for EPE. In order to provide by-passes/linkages to all the National Highways outside the thickly built up areas of Delhi, peripheral expressways around Delhi had C.W.P.No.16619 of 2009 -9- been under consideration since long. The western half of this bye-pass road linking NH-1 at Kundli in the North and NH-2 near Palwal in the South via NH-10 and NH-8 along the Western periphery of Delhi has been designated as Western Peripheral Expressway (WPE/KMPE). The eastern part of this bye-pass road linking NH-1 at Kundli in the North to NH-2 near Palwal in the South via NH-58, NH 24 and NH 91 on the eastern side of Delhi has been designated as Eastern Peripheral Expressway (EPE). The land in issue is situated near NH-1 at Km. 36.083 where the interchange junction has to be constructed as per the approval of the Monitoring Committee constituted by the Hon'ble Supreme Court. Writ Petition (Civil) No.13029 of 1985 titled as M.C.Mehta vs. Union of India and others is pending in the Hon'ble Supreme Court of India which is seized of the matter of construction and implementation of the projects, namely, EPE and WPE/KMPE. These two projects i.e. EPE & WPE/KMPE were conceptualized in terms of the order of the Hon'ble Supreme Court, in particular that of 11.2.2005, directing the bypassing of the non-destined traffic to Delhi and to ensure that the said traffic do not enter in the territory of National Capital Territory of Delhi. For timely implementation of these two projects, a Monitoring Committee was constituted vide order dated 18.8.2005 by the Hon'ble Supreme Court. In terms of the aforesaid order, the Monitoring Committee was to decide with respect to the technical, financial or any other matter in relation to projects in question i.e. development of WPE/KMPE and EPE. On 21.10.2005, the Monitoring Committee in its meeting directed that the alignment of the EPE be decided in such a way that starting and end points of EPE should meet at the same point as that of WPE/KMPE. In the meeting of the Monitoring C.W.P.No.16619 of 2009 -10- Committee held on 10.12.2005, it was informed that it has been decided jointly that the starting point of EPE and WPE/KMPE should be at Km. 39.725 of NH-1 subject to certain formal clearance of the Government of Haryana. However, in the meeting of the Monitoring Committee held on 25.1.2006, the representative of the Government of Haryana wanted the matter to be reviewed with respect to the starting point. Subsequently, during the Meeting of the Monitoring Committee held on 11.3.2006, Government of Haryana insisted through its Chief Secretary that they had already acquired land considering starting point of WPE/KMPE as Km. 36.083 of NH-1 and had already signed Concession Agreement with the Concessionaire for WPE/KMPE and that the land on eastern side has already been kept reserved by Government of Haryana which they would hand over to NHAI for development of EPE. The Monitoring Committee then on deliberations decided that the starting point of EPE & WPE/KMPE shall be from Km. 36.083 of NH-1. Accordingly, the starting point of EPE and WPE/KMPE was determined and decided to be at Km. 36.083 and not at Km. 39.725 of NH-1. It was also decided in this meeting that the interchange on NH-1 at this location shall be included in the scope of work of WPE/KMPE and the interchange at the other end of EPE & WPE/KMPE on NH-2 i.e. at Palwal shall be included in the scope of work of EPE. The interchange at NH-1 should be taken up by Government of Haryana and the design prepared for interchange should be submitted to NHAI for obtaining its acceptance. Similarly, the design of interchange on NH-2 finalized by NHAI, would be submitted to the Government of Haryana for obtaining its acceptance. An elaborate exercise has been done before finalization of the alignment and the location of the interchanges with the crossing roads so as C.W.P.No.16619 of 2009 -11- to minimize structures, trees and other environmentally sensitive areas. Despite best efforts, acquisition of some of these cannot be avoided in the length of 135 Kms. of EPE. It is well settled principle of law that public interest shall prevail over private interest and the present project being of national importance, shall be benefitting people travelling on it and in particular, the traffic to and from the Northern States besides local public living alongside the said Highway. The interchange has been designed keeping in view the traffic safety future developments and the technical aspect thereof which cannot be, at this stage, changed or re-designed. The aspects of geometric designs, such as, radius of curve, gradient, speed etc. has to be taken note of. It is denied that the project has been arbitrarily planned. The decision has been taken by the Monitoring Committee constituted under the orders of the Hon'ble Supreme Court which has been empowered to take all decisions whether technical, financial or any other matter relating to both the Expressways in question. Due deliberation has taken place between the interested parties and thereafter the project has been finalized. All consideration has been given with respect to approval of design of interchange as per recommendations of Indian Roads Congress and Guidelines of Ministry of Roads, Transport and Highways ( MoR, T&H), Government of India. As far as challenge to the provisions of NH Act (Amendment Act 1997) is concerned, it has been pleaded that a Division Bench of this Court in CWP No.1146 of 2005 titled as M/s Golden Iron and Steel Forgings vs. Union of India and others, decided on 28.3.2008 has upheld the same and has held with regard to only Sections 3(J) and 3( G) of the NH Act as ultra vires the Article 14 of the Constitution of India in so far as they C.W.P.No.16619 of 2009 -12- deny solatium and interest to the land owners. Further direction has been issued that all acquisitions made under the NH Act would necessarily have to grant solatium and interest in terms similar to those contained in Section 23(2) and Section 28 of the LA Act. An SLP preferred against the said order is pending before the Hon'ble Supreme Court. Government of Haryana has decided to acquire land falling on western side of the NHAI under the LA Act which is part of the WPE/KMPE or Kundli Manesar Palwal Expressway. The land for the EPE is being acquired under the NH Act and the land for the interchange of NH-1 is a part and parcel of the land required for EPE and, therefore, is being acquired under the NH Act. The compensation to the petitioners shall be paid as per the provisions of this Act and the provisions of the NH Act have not been enforced with a view to pay lesser compensation to the land owners which is perfectly legal and valid and totally justified in the light of the decision taken by the Monitoring Committee as constituted by the Hon'ble Supreme Court. The action is legal and valid and thus is not violative of Articles 14, 19 and 300-A of the Constitution as alleged by the petitioners. The allegation of mala fide with an intention to benefit some land owners, has been denied. The benefit of the policy, as applicable to the State of Haryana, and notified by it, cannot be enforced qua the NHAI as the acquisition has been made under the NH Act. Accordingly, it has been prayed that the writ petitions deserve to be dismissed. State of Haryana has also taken a similar stand and justified the location of the loop at Km. 36.083 of NH-1. As regards discrimination with regard to the non-grant of C.W.P.No.16619 of 2009 -13- benefit under the policy of rehabilitation and resettlement of land owners- land acquisition oustees as notified by the State of Haryana on 7.12.2007, it has been pleaded that as per the policy, no alternative industrial plot can be allotted. The policy of paying annuity is only applicable to cases where land acquisition is by the Government of Haryana. The plots to be allotted by the Haryana Urban Development Authority (for short 'the HUDA') and the HSIIDC are only for residential purposes and that too, where the land is acquired by HUDA or HSIIDC, as the case may be. The said policy would not be applicable to the case of the petitioners and they would not be entitled to the said benefit. Accordingly, prayer has been made for dismissal of the writ petitions. Counsel for the petitioners has vehemently pressed the claim of the petitioners with regard to the arbitrary and mala fide shifting of the intersection point of the EPE and WPE/KMPE at NH-1 from Km. Stone No.39.725 to Km. Stone No.36.083. He has contended that the alignment has been purposely made in such a manner that some land holders are not affected by the acquisition of the land. It has been contended that by shifting the intersection point from 39.725 to 36.083, the visual impact of the land belonging to Ansals would be enhanced. The slip road has been shifted with an intention to benefit Toyo Springs Ltd. He further contends that three options which have been given by the petitioners for the design of the loop are much more beneficial to the respondents but they have not been considered at all. He has very fairly conceded that the challenge to the vires has already been decided on 28.3.2008 by the Division Bench of this Court in C.W.P.No.11461 of 2005 titled as M/s Golden Iron & Steel Forging vs. Union of India & others decided on 28.3.2008. He has C.W.P.No.16619 of 2009 -14- pressed into service the discrimination which has been meted out to the petitioners merely because the land is being acquired under the NH Act as they would be deprived of the benefit of the rehabilitation policy of the State of Haryana. They would neither be entitled to the annuity nor allotment of plots which they would have been entitled to had the acquisition been under the LA Act by the State of Haryana. Counsel for the petitioners have in support of their contentions relied upon the judgment of the Hon'ble Supreme Court in the cases of State of U.P. vs. Smt.Pista Devi and others, AIR 1986 SC 2025, Northern India Caterers (Private) Ltd. and others vs. The State of Punjab and others, 1967 (3) SCR 399, M.C.Mehta vs. Union of India and others, (1996) 4 SCC 750, Special Land Acquisition Officer, UK Project vs. Mahaboob and another, (2009) 14 SCC 54. Per contra, counsel for the respondents have also not contested the fact that a Division Bench of this Court in C.W.P.No.11461 of 2005 M/s. Golden Iron & Steel Forging's case (supra) has upheld the vires of the provisions of the NH Act except as held therein. It has been contended that the projects of EPE and WPE/KMPE are being given effect to in the light of the directions issued by the Hon'ble Supreme Court. The intersection point at Km..36.083 has been fixed after due deliberations by the Monitoring Committee keeping in view the survey which has been conducted in this regard by the Concessionaire of HSIIDC. The Monitoring Committee has taken its decision keeping in view the totality of the facts and circumstances of the case and a practical approach has been followed. No change has been brought about in the location of the intersection under the influence of any person or authority. C.W.P.No.16619 of 2009 -15- The spot plan of interchange has been finalized after several meetings of the NHAI and its consultants and HSIIDC and its independent consultant and the interested parties. On the eastern side of NH 1, land measuring 23 acres, 4 kanals 16 marlas required for interchange has been transferred from HUDA out of the land acquired by it for Rajiv Gandhi Education City. Land measuring 3 acres 1 kanal 16 marlas has been transferred from Haryana Health Department at village Badkhalsa, District Sonepat. Land measuring 1 acre 1 kanal belonging to Moti Lal Nehru School of Sports, Rai, has been transferred from Sports and Youth Welfare Department, Haryana. Land measuring 16.5 hectares required for this interchange on eastern side of NH-1 being part of EPE is being acquired under