ANURAG SRIVASTAVA Vs. NATIONAL HIGHWAY AUTHORITY OF INDIA

JUDGEMENT

(1.) The petitioners have instituted this writ proceedings aggrieved by an award dated 19th September, 2018 passed by the second respondent in respect of their land which has been acquired under the provisions of the National Highways Act, 1956. The facts are these: the petitioner no. 3 along with her two sons, namely, Anurag Srivastava and Arvind Srivastava, petitioner nos. 1 and 2 respectively, are the owners of Plot Nos.257, 448 and 450 situated in Village Babura Bhairodayal, Tehsil Lalganj, District Mirzapur. They claim that they have residential house over Plot Nos. 448-Kha and 450. The residential house of the petitioners has a garden with various varieties of trees planted in it. Their residential house is adjacent to the main road. The petitioners claim that they are not using Plot Nos. 448, 257 and 450 for any agricultural purpose. Plot Nos. 448 and 450 were chak out during the consolidation proceedings due to their non-agricultural usage. It is stated that over Plot No. 257 the petitioners have constructed a permanent building, which is used as servant quarter and for keeping animals i.e. cows, buffaloes, etc. The respondent no. 1, the National Highway Authority of India2, has undertaken a project for widening of National Highway No. 7, from 98.640 Kms. to 140.265 Kms. in district Mirzapur (Varanasi- Hanumana Section). In this regard a notification under Section 3A of the Act, 1956 was published in the Gazette of India, Extraordinary, on 15th January, 2018. The petitioners' Plot Nos. 257, 448 and 450 admeasuring 0.0236, 0.0450 and 0.0260 hectares respectively were included in the said notification declaring the intention to acquire the land shown in the notification. The said notification was published in two newspapers, namely, 'Dainik Jagran' and 'Times of India' on 03rd February, 2018. Later the notification under Section 3D of the Act, 1956 was published on 02nd April, 2018. The grievance of the petitioners is that the respondents in hot haste without proceeding in accordance with the provisions of Section 3G(3) of the Act, 1956 proceeded to determine the compensation and passed an award dated 19th September, 2018. It is stated that no publication was made in any newspaper inviting objections from the persons and the petitioners whose land was being acquired and they have not been paid adequate compensation.

(2.) It is averred in the writ petition that without giving any opportunity of hearing to the petitioners their land has been acquired that too without determining the adequate compensation for the land of the petitioners. The petitioners claim that ignoring the valuation of the land, which is more than Rs.6,500/- per square meter as per the circle rate prepared by the District Magistrate, a meager amount of compensation at the rate of Rs.218/- per square meter has been awarded. It is stated that the petitioner's land has been treated to be agricultural land ignoring the evidence that a pucca house is standing over it and the land is being used for non-agricultural purposes and it is located within a short distance from the road. The petitioners have brought on the record the photographs to demonstrate that a permanent structure is existing over the acquired land. A counter affidavit has been filed on behalf of the first respondent. The stand taken by the respondent is that the petitioners' land has been acquired for the public interest. It is stated that on the plots of the petitioners there are trees. It is further stated that in the revenue record no land has been mentioned as non-agricultural land. The land in question has been acquired for the construction of four lane and a joint survey has been made on the acquired land of the petitioners by Study Point Samiti, Lucknow and employees of the tehsil. The compensation awarded to the petitioners is said to be adequate.

(3.) In reply to the averments made in Paragraph-12 of the writ petition that without publishing any notice under the provisions of Section 3G(3) of the Act, 1956 the respondents have proceeded to determine the compensation, a vague and evasive reply has been made in the counter affidavit. However, a supplementary counter affidavit has been filed on behalf of the first respondent, wherein it has been mentioned that inadvertently in the notification dated 29th April, 2018 instead of Section 3G(3) the provision has been mentioned as 3D(1) and it was a mistake. We have heard Sri Ravi Kant, learned Senior Advocate, assisted by Sri Shyam Narain Rai, learned counsel for the petitioners, and Sri Neeraj Dube, learned counsel for the first respondent- NHAI. Learned counsel for the petitioners submitted that no notice under Section 3G(3) of the Act, 1956 has been published and the authorities have determined the compensation without inviting objection. The notice under Section 3G(3) of the Act, 1956 is mandatory, hence the entire proceeding for determining the compensation has caused serious prejudice to the interest of the petitioners. It was urged that the compensation awarded to the petitioners is totally inadequate and upon erroneous assumption, therefore, it is arbitrary exercise of power. Learned counsel for the petitioners has placed reliance on a judgment of a Division Bench of this Court in the case of Sharda Yadav v. Union of India and others, Writ-C No. 30046 of 2014, decided on 18th July, 2014. Sri Neeraj Dube, learned counsel for the first respondent, submitted that the notice under Section 3G(3) of the Act, 1956 was published on 29th April, 2018, but by mistake in the notice Section 3D was mentioned. We have considered the submissions advanced by learned counsel appearing for the parties and perused the record.