Anil Kumar Joshi and Another Vs NHAI and Others

For the Respondents: Mr. Anup Rattan, A.G. with Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Addl. A.Gs. and Mr. Raj Negi, Dy. A.G.,lta, Dy. A.G.

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Tarlok Singh Chauhan, Judge (Oral)

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The instant petition has been filed for grant of the following substantive relief:-

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(i) That writ in the nature of mandamus may kindly be issued directing respondents No. 1 and 4 to withdraw the Notification issued under Section 3D of the Act qua the land and building of the petitioners vide Annexure P-2 and not to vest the land with the Central Government free from encumbrances or in the alternative, the respondents may kindly be directed to pay the compensation to the petitioners as per law alongwith all statutory benefits and justice be done.

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It is not in dispute that prior to filing of the instant writ petition, the petitioners had approached this Court by filing CWP No. 727 of 2016, wherein they had, inter alia, prayed that their property be not acquired by the National Highway Authority of India.

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This Court disposed of the petition on the basis of the reply filed by the CALA-cum-SDM (Civil), Solan, wherein respondent No. 3 had specifically stated on affidavit that the land of the petitioners had not been acquired and it was further averred that the Tehsildar, Solan/Kasauli/Kandaghat had been directed to delete the entry under Sections 3A and 3D of the National Highway Act in the remarks column in the jamabandi of the State holders whose lands have not been acquired for four laning. In this regard, Report No. 141, regarding the deletion of acquisition entry was entered in the rojnamcha vakyati of patwar circle Kot, Tehsil Kandaghat, District Solan and the land of the petitioners is now free from all encumbrances.

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The order passed by this Court on 07.11.2016, reads

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as under:-

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“Petitioners have sought the following reliefs amongst others on the grounds taken in the memo of the writ petition:

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“(i) That the respondent No. 3 may kindly be directed to pass award after considering the claims submitted by the petitioners and to pay the compensation

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accordingly to the petitioners as per the market value.

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(ii) That in addition to the other prayers inserted the petitioners prays that in case the property in question is not to be acquired by withdrawing earlier notification under Section 3D under National Highway Act in that event any part of the structure of the petitioner including parking space is not to be disturbed at all and widening of the road on the spot is to be done towards the upper side i.e. the hill side leaving appropriate space between the structure/building including parking space, further the railing which is to be provided to the above mentioned road should not be installed in front of the building and in middle of the road as it will adversely affect the business of the petitioners as such respondents may kindly be directed by issuance of the appropriate direction in this regard.”

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2. Respondents No. 1 to 3 have filed the replies. Respondent No. 3, in its reply, has specifically stated that the land of the petitioners has not been acquired. It is apt to reproduce paras 2 and 3 of the reply on merits filed by respondent No. 3 herein:

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“2. That the contents of the para No. 2 are denied to the extent that the replying respondent No. 3 has passed an award of land under acquisition for revenue village Katoh measuring 213 bigha, and rest of the area as mentioned under Section 3 D was left out. It is also pertinent to mention that petitioner was specifically informed under Right to Information Act 2005 by the replying respondent No. 3 that his land bearing Khasra No. 666/629/601/1 is not to be acquired despite it appeared in 3D publication.

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3. That the contents of the para No. 3 are denied. In this context it is also submitted that replying respondent No. 3 has specifically directed Tehsildars Solan/ Kasauli/ Kandaghat to delete entries under Section 3 A & 3D of this Act in the remarks column of jamabandi of the estate holders whose land is not required for four laning. In this regard a report No. 141 regarding deletion of acquisition entry was entered in the rojnamcha vakyati of patwar circle Kot Tehsil Kandaghat, District Solan and land of the petitioner is free from all encumbrances.”

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In view of the above, the writ petition is disposed of alongwith all pending applications.”

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It is not in dispute that the aforesaid order was not assailed by the petitioners till the year, 2024 and eventually when it so challenged by way of SLP (Civil) Diary No. 14620/2024, the Hon’ble Supreme Court vide its order dated 29.04.2024 disposed of the petition by observing as under:-

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“There is a delay of 2612 days in filing the Special Leave Petition which has not been explained by the learned counsel for the petitioner. Even otherwise, on merits, we find no reason to interfere with the impugned order.

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The Special Leave Petition is dismissed both on delay as well as on merits.

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However, liberty is given to the petitioner to have recourse to law based upon subsequent developments. Pending applications stand disposed of.”

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Trying to take advantage of the order passed by the Hon’ble Supreme Court, the petitioners would contend that since they are unable to sell their land and structures which are vested under Section 3D of the Act with the Central Government and the buyers are unable to purchase the same, therefore, these being subsequent developments would entitle them to file the present petition.

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It is averred that the business of the hotel of the petitioners has become negligible and further there is imminent danger to the lives and property of the petitioners since respondents No. 1 and 2 are now taking steps to cut steep hill to widening the road and whenever the buyers are approaching the petitioners to buy their land and hotel, they are backing out of the deal for the reason that the notification issued under Section 3D of the Act is still subsisting and the land and hotel has been vested in the Central Government.

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We really wonder how the instant petition is maintainable, particularly when the petitioners themselves had earlier approached this Court with a specific prayer that their land be not acquired and once the respondents have acceded to the request, the petitioners would now turn around and claim that the respondents should acquire their land.

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Obviously in such circumstances, the petitioners are trying to blow hot and cold and cannot approbate and reprobate at the same time. These phrases are from the Scott’s Law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law.

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Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest.

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A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party.

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The petitioners have admittedly enjoyed the benefit of the judgment for nearly eight years by running their hotel and cannot now turn around and claim that the respondents should

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acquire their land and pay compensation to them. Moreover, since no award with respect to the land in question has been made, the land of the petitioners have already been deleted from acquisition vide Rapat No. 141 and this fact has been duly intimated to the petitioners and their land is now free from all encumbrances since 08.01.2016.

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In view of the aforesaid narration of the facts, the instant petition is clearly misconceived and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.

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(Tarlok Singh Chauhan) Judge

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(Sushil Kukreja) 9^th April, 2025 Judge (sanjeev)

Anil Kumar Joshi and Another v. NHAI and Others

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Anil Kumar Joshi and Another v. NHAI and Others

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