NHIDCL Vs. KAKIHO ACHUMI

JUDGEMENT

(1.) Heard Mr. A. Zhimomi, learned Counsel for the petitioners, Mr. D.K. Banerjii, Senior Advocate assisted by Mr. Moa Jamir, learned Counsels for the respondents 6 and 7 and, Mr. T.B. Jamir, learned Senior Additional Advocate General, appearing for the State respondents.

(2.) Before we go any further the facts and circumstances leading to the filing of this PIL are briefly stated as follows:

(3.) Learned Counsel for the petitioners, Mr. A. Zhimomi, submitted that as per entry 23 in List 1 of the Seventh Schedule of the Constitution of India, National Highways are declared under the law made by Parliament and as provided under Art. 246(1) of the Constitution it is the Parliament who has the exclusive power to make laws with regard to National Highways and none other. The learned Counsel further submitted that under the aforesaid provision of the Constitution an Act to provide for the declaration of certain highways to be National Highways and for matters connected therewith namely, "the National Highways Act of 1956" was enacted on 11.09.1956, by the Parliament and the same became effective from the date it was notified in the Official Gazette of the Government of India; and as per section 2 of the Act, each of the highways specified in the Schedule of the Act was declared to be National Highways. It is also submitted by the learned Counsel that as per Clause(2) of the same section, only the Central Government can declare any Highway to be a National Highway in the Official Gazette, and on the publication of such notification, the Highway shall be deemed to be specified in the Schedule. Therefore, it is only the Central Government who alone is the competent authority to add to the list of National Highways in the Schedule or to omit any of such Highways already notified from the list. However, in this case, the NHIDCL and the other respondents have taken the law into their hands and changed the course of the NH-129A without or even before any notification issued omitting the same from the list of National Highways or changing the course of the same. Therefore, the Act of the NHIDCL, respondent No. 6 in issuing the NIT purportedly for construction of the NH-129A, which has been divided into five packages, is without any authority of law framed under the Constitution of India; as such the same is liable to be quashed and set aside. In support of his submission, the learned Counsel referred to the judgment of Madras High Court dtd. 23.12.2009, passed in WP (MD) No.9112/2009. The portion of the judgment relied upon is paragraph 16 and the same is reproduced herebelow: