Disposed

Mohammad Zaki v. Union of India

Rajasthan HC29 Mar 2023CW/4095/2020

Case brief

AI extract

What is this about?

The High Court held that acquisition proceedings were illegal due to the omission of the petitioner's land in notifications under Section 3A of the NH Act, 1956, depriving him of the right to file objections. Since the highway was already constructed, the court granted liberty to approach the Authority regarding compensation.

What did the court decide?

Liberty granted to petitioner to approach Respondent No.2 for determination of compensation; stay petition dismissed; writ petition disposed.

Mohammad Zaki Vs Union of India — Land Acquisition | Rajasthan HC (2023)

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[2023/RJJD/008085]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 4095/2020

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Mohammad Zaki S/o Late Shri Mohammad Shafi, Aged About 46 Years, By Caste Muslim, R/o A-269 Shastri Nagar, Jodhpur At Present Yardan Estate, Prithvi Raj Nagar, Pali Road, Jodhpur.

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----Petitioner

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Versus

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Union Of India, Through Secretary, Ministry Of Road Transport And Highways, New Delhi.

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The Additional District Collector-Iii Cum Land Acquisition Officer, Jodhpur.

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----Respondents

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For Petitioner(s)	: Mr. Dron Kaushik
For Respondent(s)	: Mr. Bhanu Pratap Bohra
	Mr. Ram Dayal Bhadu

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HON'BLE DR. JUSTICE NUPUR BHATI

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Order

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29/03/2023

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The petitioner has preferred the present writ petition for the following prayers :-

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i) The impugned notifications dated 05.05.2014 bearing no.S.O. 1213(E) (Annex.5) may kindly be quashed and set aside.

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ii) That in the alternative it is directed to the respondent no.2 either restore back possession of petitioner’s land to the petitioner or compensation in accordance with the 1^st to 4^th Schedules of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

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iii) The respondents may kindly be directed to not to interfere in the possession of the petitioner since no

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notification under Section 3A (1) has been issued against the petitioner.”

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The petitioner has set up a case that vide registered saledeed dated 04.02.1998 a land was purchased bearing Khasra No.361/1 (later on re-numbered as 361/08 and presently it is shown as 361/08 in Jamabandi) situated at village Kakani, Tehsil Luni, District Jodhpur. The petitioner’s name had also been entered in the revenue case of Godavari as a Khatedar, which is evident from the Jamabandi placed on record.

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The petitioner applied for conversion of his agricultural land to non-agricultural usage and conversion of the agricultural land was accordingly done vide conversion order dated 30.12.1998 for commercial purpose (petrol pump).

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In exercise of powers conferred under Section 3A(1) of the National Highway Act, 1956, a notification under Section 3A was published in the Official Gazette on 12.7.2013 by the Central Government for the purpose of acquiring certain lands around National Highway No.65 in the stretch of land from Km 308/0 to Km. 378/115 (Jodhpur-Pali Section) in order to widen/four-laning, etc., for maintenance, management and operation of National Highway No.65. However, the said Gazette Notification dated 12.7.2013 (Annex.4) did not specifically include the petitioner’s land.

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Thereafter notification dated 05.05.2014 (Annex.5) was issued by the Central Government under Section 3 D(1) of the Act of 1956 wherein it was stated that vide the notification dated 12.07.2013 published in Official Gazette under Section 3, Sub-

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Section (ii) and Sub-Section (1) of Section 3A of the Act, the Central Government had declared its intention to acquire the land specified in the Schedule annexed to the said notification for building (widening/four-laning, etc.) maintenance, management and operation of National Highway No.65 and further mentioned that in pursuance of notification dated 12.07.2014 objections were received and the same were considered and disallowed by the competent authority. In the aforementioned notification, the petitioner’s land has been included at Sr. No.159 and the nature of the land was mentioned as “petrol pump”.

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The petitioner is aggrieved of the fact that he has been deprived of mandatory opportunity of filing objection against the proposed acquisition owing to this illegal omission in the notification issued under Section 3A of the Act of 1956.

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The petitioner was shocked that on the same day i.e. 05.05.2014 another notification was published in Gazette wherein the Central Government gave brief description of the land for building (widening/four-laning, etc.) maintenance, management and operation of National Highway No.65 on the stretch of land from Km.308/00 to Km. 378/115 (Jodhpur-Pali section) in Jodhpur district from Km. 308/000 to Km. 336/400 in the State of Rajasthan.

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Vide this notification also objections were invited from the interested persons in the land mentioned in the Schedule of the notification within a period of 21 days of publication of the notification.

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However, the petitioner’s land was again not included in the notification dated 05.05.2014 (Annex.6). The petitioner submitted

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a detailed representation before the respondent no.2 i.e. the Additional District Collector-III cum Land Acquisition Officer, Jodhpur ventilating his grievance followed by a reminder dated 22.11.2017. Thereafter the petitioner had obtained a report from the concerned Patwari dated 27.12.2017 (Annex.9). In the said report, the concerned Patwari said that the acquired area in the land in dispute is 300 x 25 = 7500 Sq. Feet.

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Heard learned counsel for the parties and perused the material available on record.

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Counsel for the petitioner submits that the controversy involved in the writ petition is squarely covered by the judgment dated 10.04.2018 of this Court in S.B. Civil Writ Petition No.8790/2015 (Smt. Renu Kasat Vs. Union of India & Ors.). 12. Learned counsel appearing for the respondents is unable to refute the same.

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The petitioner claims that his land was converted into commercial nature and mutation entries in the revenue record were also done accordingly. However, the petitioner has been deprived of the mandatory opportunity of filing objection against the acquisition as his land was not mentioned in both the notifications issued under Section 3A of the Act of 1956.

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Counsel for the petitioner also submits that, though, the respondents have constructed national highway on petitioner’s land but the respondents have not passed any award till date and, therefore, he is entitled to receive fair compensation in lieu of the acquisition of his land, which was of commercial nature and also that the value of the land has to be assessed as per the Right to Fair Compensation and Transparency in Land Acquisition,

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Rehabilitation and Resettlement Act, 2013. Learned counsel, therefore, prays that he may be permitted to make a redressal of his grievance before the respondent no.2 i.e. the Additional District Collector-III cum Land Acquisition Officer, Jodhpur.

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To these submissions counsel for the respondents does not object and prays that the matter be referred to respondent no.2 i.e. the Additional District Collector-III cum Land Acquisition Officer, Jodhpur, who may be directed to consider all the aspects of the matter.

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In view of these submissions, it is concluded that the acquisition in-question in regard to petitioner’s land is concerned, the same was carried out without including the petitioner’s land in both the notifications dated 12.07.2013 (Annex.4) and 05.05.2014 (Annex.6) and, therefore, the petitioner was deprived of opportunity of filing objection and, thus, such acquisition proceedings has resulted into illegal proceedings. However, as the National Highway has already been constructed on such lands, the position thereof cannot be altered in public interest.

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In view of these circumstances the petitioner is given liberty to approach respondent no.2 i.e. the Additional District CollectorIII cum Land Acquisition Officer, Jodhpur by filing a detailed representation for award of compensation on all permissible aspects including that of the nature of land as on the date of acquisition and the current market value thereof.

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The respondent no.2 i.e. the Additional District Collector-III cum Land Acquisition Officer, Jodhpur shall thereupon decide the matter in light of the observations made hereinabove. Requisite exercise in this direction shall be completed within a period of

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three months from the date of submission of representation alongwith certified copy of this order by the petitioner.

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