IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 6997 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ MANEK FARAMROJ JOKHI & 6 Petitioner(s) Versus UNION OF INDIA - THROUGH SECRETARY & 3 Respondent(s) ================================================================ Appearance:
MR SUNIT SHAH FOR MR NV GANDHI, ADVOCATE for the Petitioner(s) No. 1 - 7 MR RS SANJANWALA WITH MR DILIP L KANOJIYA, ADVOCATE for the Respondent(s) No. 4 MR MIHIR JOSHI FOR MR NARENDRA KHARE, ADVOCATE for the Respondent(s) No. 1 - 2 MR VIRENDRA M GOHIL, ADVOCATE for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 14/12/2012 CAV JUDGEMENT
1. RULE. Learned advocate Mr. Khare waives service of Rule on behalf of respondent Nos.1 and 2, learned advocate Mr. Gohil waives service of Rule on behalf of respondent No.3, learned advocate Kanojiya waives service of Rule on behalf of respondent No.4.
2. By way of present petition under Articles 14, 226, and 227 of the Constitution of India and under the provisions of the National Highways Act, 1956, the petitioners are seeking following relief :
(A) THIS HON’BLE COURT may be pleased to issue writ, of mandamus or any other appropriate writ, order and/direction directing Respondents to maintain 60 mtrs. ROW Highways passing near by land bearing Block No.261 & 262 of village Bedkuva;
(B) THIS HON’BLE COURT may be pleased direct the respondents to consider the representation dtd. 23.02.2011 and 7.03.2011, produced at AnnexureH, to this petition, pending hearing and final disposal of this petition;
3. Heard learned advocate Mr. Sunit Shah with Mr. N.V. Gandhi for the petitioners, learned senior advocate Mr. Mihir Joshi with Mr. Narendra Khare for respondent Nos.1 and 2, learned advocate Mr. Virendra Gohil for respondent No.3 and learned advocate Mr. Sanjanwala with Mr. Dilip Kanojiya for respondent No.4.
4. The short facts of the present petition are such that the present petitioners are the agriculturists. Petitioner Nos. 1 to 7 are having agricultural lands bearing Block Nos.453, 454 and 460, 461 and 462 as well as 446/p1 and 448 respectively. Respondent No.2 has undertaken project for widening NH 6 between Hajira and Maharashtra border through Tapi District, vide Notification dated 10.6.2009 issued by respondent No.1 published in daily newspaper “Sandesh” dated 8.8.2009. As per the policy, it was decided to provide 60 mtrs., 6 lane highway throughout Hajira and Maharashtra Border. Respondent No.2 proposed to acquire part of the land to establish National Highway into six lanes. The petitioners noticed that the center line shifted towards their own lands and there was no proposal to acquire the land of Block No.261 and 262 on which bungalow scheme was proposed by respondent No.4. The center line was shifted with a view to favour the organizer and developers of the said scheme. Therefore, the petitioners made representations to various Authorities for changing center line of the highway along with other objections. The petitioners made application on 19.11.2009 and in response to the said letter, Under Secretary to Government of Gujarat directed the Collector, Tapi, to take appropriate action. Thereafter, the National Highway Authority with a view to cover up misdeed, obliged the petitioners by reducing the area of proposed acquired lands owned by the petitioners and proposed to acquire lands vide notification dated 10.6.2009 and thereby acquired small portion of land bearing Block No.261 of 262 and reduced the width ROW. The respondent No.2 issued notification dated 8.7.2010 inviting objections in respect of compensations of the land acquired. The National Highway Authority issued Notification dated 8.11.2010 due to the complaint made by the petitioners and vide Notification published on 8.11.2010 in Gujarat Samachar, it was proposed to acquire land admeasuring 3445 Sq. Mtr. from the land bearing Block Nos.261 and 262. As per the map given to the petitioner No.2, the land admeasuring 4503.75 Sq. Mtr. from Block No.262 was required to be acquired and land admeasuring 5107.67 Sq. Mtrs. from Block No.261 was required to be acquired, but the respondents Authorities continued to favour respondent No.4 by proposing to acquire land admeasuring 3445 Sq. Mtr. vide notification dated 8.11.2010. The respondents Authorities still, in order to continue to favour respondent No.4, who is organizer of Happy Home Scheme and took decision to confine acquisition proceedings to 43 mtr. ROW in width near the land of Happy Home Scheme instead of 60 mtrs. ROW in width. Therefore, the petitioners made representations on 23.2.2011 and 7.3.2011 to the Authorities and as yet, the respondents Authorities have not taken decision and respondent No.2 is adhered to implement notification dated 8.11.2010.
5. Learned advocate Mr. Shah for the petitioners stated that the petitioners are discriminated for the personal interest of organizations and developers of land bearing Block No.261 and 262. There is no valid reason for shortening the width of ROW near the plot of respondent No.4. He further stated that looking to the area of lands mentioned in the notification dated 10.6.2009 and 8.11.2010 and maps of Highway, it appears that to save the larger area of land of block No.261 and 262, the center line was shifted and width of the proposed highway was reduced. He further stated that however, the respondents took decision to confine acquisition proceedings to 43 Mtrs. in width near the land of Happy Home Scheme instead of 60 mtrs. in width, resulting into altercations the center line, discriminations to the petitioners. There is no construction shown in the land of Block Nos.261 and 262 as per the map provided by the Authority and despite the same, the respondent No.4 has acquired lesser area of land from the block Nos.261 and 262 by reducing the width of portion of ROW passing nearby Block No.261 and 262. He further stated that in pursuance to the direction issued upon the respondents, the respondents issued fresh notification dated 8.7.2010 covering part area of Block No.261 and 262 i.e. admeasuring 3445 Sq. Mtr. only by reducing ROW from 60 mtrs. to 43 mtrs. from N.H. 6 passing nearby the said lands instead of land admeasuring 4503.75 Sq. Mtr. from Block No.262 and 5107.67 Sq. Mtr. from Block No.261 required to be acquired to maintain ROW of 60 mtrs. He further stated that there is no reasonable explanation tendered by the respondents in reducing ROW nearby Block No.261 and 262. In view of the above submission, learned advocate Mr. Shah stated that the petition may be allowed by directing the respondents to maintain 60 mtrs. ROW Highways passing near by the land bearing Block Nos.261 and 262.
6. Learned senior advocate Mr. Joshi for respondent Nos. 1 and 2 raised the preliminary issue regarding the locus of the present petitioners. He read the prayers prayed for by the petitioners and submitted that the petitioners have never challenged any notification issued by the Authorities. He drew the attention to the notifications issued by the Authorities and stated that the present petitioners have no legal right to challenge the said issue by way of the present petition.
7. Learned senior advocate Mr. Joshi focused on some facts and stated that the land acquisition of a project namely four laning of GujaratMaharashtra – Surat Hazira Port Section of NH 6 in the State. The project is already started for construction since from 18.5.2009 and overall physical progress is nearly 34%. The total length of project is 132.913 Km. out of which 78.558 Km. passes through Surat District and 54.355 Km. passes through Tapi District. He further stated that this matter is related to Tapi District and out of 54.355 Km. of project stretch two nos. of new alignment are also proposed for construction i.e. Bajipura Bypass and Vyara Bypass, which involved the fresh acquisition.
He further stated that this matter is related to the land acquisition work for construction of Vyara Bypass which is bypassing the alignment of the existing NH 6 passing through Vyara town under this project. He further stated that Gazette Notification U/s.3 (A) of National Highways Act, 1956, was published for land acquisition in this area vide notification No.SO No.1693 (E) dated 10.7.2009. The said notification was published as per the land acquisition prepared by the technical feasibility study consultant. The land acquisition plan was prepared manually on village map for preparation of 3(A) notification. As per this initial 3(A) notification dated 10.7.2009, no area of land was considered for land acquisition in block No.261 and 262 of the village Bedkuva near Vyara bypass and these blocks are situated opposite to the petitioners’ land. He further states that joint measurement survey was carried out at site with the concerned local Revenue Authority for further process for publication of 3(D) notification and such joint measurement survey was carried out as per design center line based on coordinates of the project alignment. As per his submission, few deviations were found in this area, while carrying out joint measurement survey at site with local Revenue Authority and the deviation was resulted apparently owing to the reason that the land acquisition plan was prepared manually by the technical feasibility study consultant on village maps for preparation of 3(A) notification, whereas joint measurement survey was done as per the design of the project on the basis of center line coordinate. On account of such deviation, some changes occurred in isolated locations in the actual requirement of land as notified in 3(A) vizaviz actual requirement to be considered at 3(D) stage. He further stated that the excess land as per 3(A) was not included in 3(D) and fresh action for acquisition of additional land in few stretches initiated by way of another fresh 3(A) notification and 3 (D) notification with respect to those plots and area coming under the limit of 3(A) notification dated 10.7.2009 and same was published in a Gazette notification vide SO No.1627 (E) dated 8.7.2010. He further stated that a fresh 3(A) notification for additional land area was also published in Gazette notification vide SO No.2738(E) dated 8.11.2010. He also stated that the provision of 60 mtrs. ROW for entire land is not strictly followed in this project e.g. in another area of project restricted 30m ROW width has also been considered for land acquired in Hazira area in Surat District and even though in the another project of National Highway Authority of India, the restriction in the ROW width are also being facilitated wherever required at the site. He further stated that the project is mainly based of four lanning project for which the provision of 60m ROW is kept with a view for future upgradation of this Highway to convert the same into six lane and to provide side service road to cater for the future growth in the traffic. He further stated that keeping in view of site situation at this location and as the initial 3(A) notification dated 10.7.2009 was not having any intention to acquire land in block No.261 and 262, a safely design configuration of Highway is adopted in this area confirming to technical parameters of Highway for a design speed of 100 Km. accommodating in 43m ROW width and the configuration of Highway at this location is kept with a six lane capacity Highway with provision of side service road at present stage to avoid future upgradation of the Highway. He further stated that the entire case seems to have been built on two accounts namely (1) reduction in ROW at certain location to 43 mtrs. and (2) acquisition of lesser area of land from Block Nos.261 and 262 as against the wishes of the petitioners. He therefore, stated that the plea of the reduction in ROW does not have merit consideration. Respondent No.2 took care of all technical and physical parameters in order to ensure that the traffic on the Highway does not suffer in any manner.
8. Learned advocate Mr. Sanjalwala for Mr. Kanojiya for respondent No.4 vehemently opposed the submissions made by the learned advocate for the petitioners. He supported the submissions made by the learned advocate for the respondent Nos.1 and 2 and stated that the petitioners have no locus to file this petition and therefore, the petition cannot be entertained and required to be rejected.
9. I have perused the documents produced on record and especially minutely perused the prayers sought for in the present petition. First of all, the prayer as sought for in the petition as stated above says for directing the respondents to maintain 60 mtrs, ROW Highway passing near by land bearing Block 261 and 262 of village Bedkuva. The petitioners are having land bearing Block Nos. 453, 454 and 460, 461 and 462 as well as 446/p1 and 448 respectively and block Nos.261 and 262 are situated at the opposite side of the lands of the petitioners.
Therefore, the petitioners have no concern with the land of Block No.261 and 261. Here the prayer sought for, in the petition is to maintain 60 mtrs. ROW Highway passing near by the land bearing Block Nos.261 and 262. Therefore, it can be said that the present petitioners have no locus in the present case and the prayers as sought for, is pertaining to their own land.
10. It is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to primarily ascertained at the threshold.
11. In catena of decisions, several High Courts as well as the Apex Court of India, have observed that the locus standi of the party is mandatory and in absence of locus of the party, the proceedings filed by the party has no weightage. Same is not required to be considered.
12. Even from the submission and contentions raised by the learned advocate for the petitioners, it is not disclosed as to whether the petitioners suffers/suffered irreparable loss or injury or damage due to the act on the part of the respondents Authorities. Prima facie, it appears that there is no prima facie case and balance of convenience is not in favour of the petitioner, then the question of any irreparable loss is not required to be considered.
13. Without expressing any opinion on merits, only on the issue of locus of the present petitioners in the case, the petition is required to be dismissed. Hence, the petition is dismissed. Rule is discharged. No costs.
YNVYAS (Z.K.SAIYED, J.)