Smt. Jyoti Vs Chairman

THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO-DIRECT THE R-4 TO PAY COMPENSATION TOWARDS ACQUISITION OF LAND MEASURING 606SQ.MTRS., IN SY.NO.92/7A (KATHA NO.804) AS PER THE AWARD PROCEEDINGS DTD 06.09.2018 VIDE ANNX-A. AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioner is before this Court claiming that she is the

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owner of land measuring 1 acre and 7 guntas in Sy.No.92/7A (Katha No.804), situated at Geddagoodadarangavanahalli Village on the National Highway No.50, of which an extent measuring 606

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sq.mtrs., which is acquired by the respondent - National Highway Authority of India for the purpose of extension of National Highway in terms of Preliminary notification dated 17.11.2016 and the Final notification dated 02.12.2017 published under Section 3-D of the National Highways Act, 1956.

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The case of the petitioner is that said extent of 606 sq.mtrs of land had been converted for nonagricultural/commercial purposes. That an award was passed under Section 3(G) of the National Highways Act, 1956 (hereinafter referred to as 'the Act, 1956') on 06.09.2018, determining the compensation payable in a sum of Rs.45,19,351/- for total extent of land measuring 2,272 Sq.Mtrs and ordered to be paid to the land owners. However in the said award proceedings at column No.8, there is a mention that the total extent of land acquired under Section 3-D Notification is 35,567 Sq.Mtrs. But the award in respect of land belonging to the petitioner to an extent of 606 sq.mtrs has not been passed on the premise

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of the Land Acquisition Officer was required some more information. Thus no award has been passed in respect of the land belonging to the petitioner.

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The petitioner under such circumstances caused issue of a notice on 15.11.2021 to respondent No.4 requesting either to remove the illegal encroachment or to grant the compensation. A reply dated 22.02.2022 was issued stating that the land measuring 606 sq.mtrs. belonging to the petitioner has not been utilized as such the compensation has not been paid. Under this circumstances, the petitioner is before this Court.

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Learned counsel for the petitioner reiterating the averments and the grounds urged in the petition also relying upon the order by passed in Co-ordinate Bench of this Court dated 06.07.2022 in WP.No.8427/2021 and the order passed by the High Court of Chattisgarh at Bilaspur in WPC No.2285/2018 dated 17.01.2023 and referring to the provisions of the National Highways Act, 1956 submits that once a land is notified for acquisition and the award is

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passed under the Act, 1956, there is no option left to the respondent-authorities, but to pay the compensation as the said Act does not provide for withdrawal or dropping of the land from the acquisition. Hence, he seeks for allowing of the petition.

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Per contra learned counsel Sri.Sagar Somnath Ladda for the respondent-authorities appearing through Video Conferencing, refers to statement of objections filed by way of affidavit and the documents enclosed therewith submits that, 606 sq.mtrs of land which belongs to the petitioner is being utilized by the petitioner as an access to his own land, which is situated on the northern side of the acquired land for the purpose of running LPG go-down. He further submits that payment of compensation to the said land which is unusable by the authorities would cause unnecessary burden on the public exchequer which can be avoided since the petitioner is using the said land for better benefit and enjoyment of his other land. Counsel however fairly submits that there is no provision under the

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Act, 1956 for deletion of the land once acquired and only to save burden on the public exchequer, the respondent

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authorities have replied declining to pay the

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compensation.

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In response, learned counsel for the petitioner submits that the land acquired by the respondentAuthorities has already been utilized by them, by laying the service road thereon. As such, submission made by the respondent-authorities that the land measuring 606 sq.mtrs acquired by them is being utilized by the petitioner is incorrect.

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Heard and perused the records.

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There is no dispute that an extent of 606

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Sq.mtrs of land belonging to the petitioner forming part of Sy.No.92/7A has been acquired by the respondent - Authorities and there is no provisions under the Act, 1956 for deletion of the land from the acquisition.

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This Co-ordinate Bench of this Court under

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similar circumstances in its order dated 06.06.2022 in WP.No.8427/2021 taking note of the provisions of the National Highways Act, 1956 had concluded that once land is acquired in the absence of the specific provision, the respondent-authority cannot resist the claim for the compensation and accordingly issued directions to the respondent-authorities to pay the compensation in terms of the award that is passed.

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The High Court of Chattisgarh in the WPC

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No.2285/2018 taking note of provisions contained under Section 48 of Land Acquisitions Act, 1894 as well as Section 93 of the Right to Compensation Act 2013 as held as under:

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" It has been the settled position of law by a catena of decisions by the Hon'ble Supreme Court wherein it has been time and again reiterated that in the course of exercising of the writ powers by the High Court under Article 226, it would not create a law or exercise powers, which are otherwise not enshrined under the provisions of law. Exercising of such powers, which are otherwise not prescribed would be inconsistent to the substantive law itself. Particularly in the instant case where the Land Acquisition Act of 1894 and the subsequent Act of 2013 both having a clause for

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withdrawal from the acquisition and the subject Act in the present writ petition i.e. the National Highways Act, 1956 not having such a provision, this Court is of the opinion that there seems to be a deliberate exclusion by the Law Makers while enacting the said law. Hence under the circumstances, it would not be fit for this Court in exercise of its writ powers to grant a relief that the petitioner in WPC No. 1442 of 2018 has sought and the writ petition of the petitioner-NHAI, therefore deserves to be and is accordingly rejected"

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In view of the above said facts and the

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position of law, petition is allowed.

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Respondent - Authorities are directed to pay the compensation to the petitioner in respect of the land measuring 606 sq.mtrs forming part of land in Sy.No.92/7A as per the award dated 06.09.2018, along with all statutory benefits payable in accordance with law within a outer limit of twelve weeks from the date of receipt of copy of this order.

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Sd/(M.G.S. KAMAL) JUDGE

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RCK List No.: 1 Sl No.: 11

Smt. Jyoti v. Chairman

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Smt. Jyoti v. Chairman

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