Saturday, 9 April 2016

Whether land for construction of state highway can be acquired under land acquisition Act

Section 19E of the State Act may be reproduced as under :
19E.  Nothing in the Land Acquisition Act, 1894 shall
apply to an acquisition under this Act.
We have already noticed that there is enough material to
show that the acquisition is for the purpose of a bye­pass on a State
Highway.  The Notification under Section 3 of the State Act describes
the State Highway generally with reference to villages and miles and not
with   reference   to   any   survey   number/gat   numbers.     Thus,   the
submission on behalf of the respondents that there is no notification in
respect of the particular area falling under the bye­pass and, therefore,
the provisions of the State Act would not be attracted, cannot obviously
be accepted.  We find that the acquisition indeed would be required to

be undertaken under the provisions of the State Act.  The preamble of
the State Act states that the Act is enacted for restriction of ribbon
development   along   highways,   for   the   prevention   and   removal   of
encroachment   thereon,   for   the   construction,   maintenance   and
development of highways, for the levy of betterment charges and for
certain other matters.  
11] In   an   unreported   decision   in   Writ   Petition   No.705/2008
(supra), although the dispute related to a challenge to the notice for
removal of encroachment, issued by the Competent Authority under the
Act, this Court has held that the State Act is a complete code in itself
and Section 19E of the State Act excludes the provisions of the Land
Acquisition Act, 1898. 
12] It would be thus clear that whenever the acquisition is for the
purposes of a State Highway governed by the State Act, the application
of the Central Act would stand excluded.   We, therefore, find that the
impugned   acquisition,   which   is   initiated   under   the   Central   Act,   thus
cannot be sustained. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6097 OF 2013

 Padmaja Arun Pande,

.. Versus ..
State of Maharashtra, 
CORAM :  A.P. BHANGALE  AND
C.V. BHADANG, JJ.

Date of Pronouncement               :  16.01.2015.
Citation;2016(2) ALLMR 230



2] By this petition, the petitioners challenge the acquisition of
their land under the Land Acquisition Act, 1894 ('Central Act' for short)
for the purpose of laying of bye­pass at Buldhana which is said to be the
part of Malkapur­Solapur State Highway.
3] The brief facts are that the petitioner nos.1 to 4 (the name of
the petitioner no.1 has, since been deleted) are the owners of Gat No.
170, while the petitioner nos.5 to 7 are the owners of Gat No.169 of
mouza Sagwan, Tahsil and District­Buldhana.  A proposal for acquisition
of portion of the said fields of the petitioners along with others was
received in the office of the respondent no.5–Executive Engineer, Public
Works   Department,   Zilla   Parishad,   Buldhana   on   or   about   8.4.2008.
According to the petitioners, they had not received any notices for joint
measurement.   The   petitioners   also   contended   that   the   proposed
acquisition   was   not   necessary   for   laying   the   bye­pass,   as   the   said

purpose was already taken care of by portion of the road from Buldana
to   Nandrakoli.   The   petitioners   contended   that   thus   the   proposed
acquisition was not in public interest.   It appears that a Notification
under Section 4 of the Central Act was published on 28.8.2012.   The
petitioners sent their objections, although specifically Section 5­A of the
Central Act was not mentioned therein.  That objection was jointly sent
on 24.9.2012.   It appears that a Resolution was also adopted by the
concerned   Gram   Panchayat   on   13.9.2012   raising   objection   to   the
acquisition, on the ground that several agriculturists would be affected
thereby.   The   petitioners   also   sent   their   individual   objections.   The
petitioner nos.1 to 4 had received a notice dated 28.3.2013 calling upon
them to remain present in the matter of hearing on their objections
under section 5­A of the Central Act. However, no such notice was
received by the petitioner nos.5 to 7.   According to the petitioners,
without holding any effective inquiry under Section 5­A of the Central
Act,   a   proposal   for   issuance   of   Notification   under   Section   6   of   the
Central Act, was sent by the respondent no.4­Special Land Acquisition
Officer, followed by a proposal for issuance of  notices, under Section 9

of the Central Act.  The petitioners filed this petition, initially challenging
the acquisition on the ground that there was no opportunity of hearing
given, resulting into non­compliance of Section 5­A of the Central Act.
The petition came to be amended by addition of paras 3­A and 3­B on
the ground that inasmuch as the acquisition was for the purposes of a
State   Highway,   the   acquisition   could   not   be   undertaken   under   the
provisions   of   the   Central   Act.     In   short,   it   is   contended   that   the
acquisition ought to have been under the provisions of the Maharashtra
Highways Act, 1955 ('State Act' for short).
4] The contesting respondents have filed an affidavit thereby
contesting the petition.   It is denied that no notice of the proposed
acquisition was given and/or the inquiry under Section 5­A of the Central
Act was not conducted.   It is denied that the purpose for which the
proposed acquisition is being made can be served by the portion shown
as E, F, G, A in the map annexed to the petition.   The respondents
denied that there is no public purpose involved in the acquisition.  It is
contended that the area proposed to be acquired from Gat No.170 is
about 0.30 hectors, as against the total area of the field, which is 2

Hector 78 R, while an area ad­measuring 0.380 HR from out of total
area 3 Hector 47 R from field Gat No.169 is sought to be acquired.
Thus, the land proposed to be acquired from the concerned field nos.
169 and 170 is minimal.  The respondents have not chosen to file any
affidavit   in   reply   after   the   petition   was   amended,   incorporating   the
challenge based on the provisions of the State Act.
5] We have heard Shri R.L. Khapre, the learned counsel for the
petitioners and Mrs. B.H. Dangre, the learned Government Pleader for
the respondents.
6]  It is submitted on behalf of the petitioners that the State Act
is a complete code in itself and Section 19­A of the State Act in terms
excludes the applicability of the Central Act to the acquisition of land for
the purposes of a State Highway.   It is submitted that the acquisition
proceedings, which are initiated under the Central Act, are liable to be
quashed.     The   learned   counsel   would   submit   that   it   is   only   the
authorities appointed under Sections 4 and 6 of the State Act, by the
State   Government,   who   can   exercise   powers   in   relation   to   such
acquisition.   It is submitted that the respondent no.4 has not been so

authorized or appointed and in that view of the matter, the acquisition
would be void ab initio.  Reliance is placed on an unreported decision of
this Court in Satyanarayan s/o Modulal Dayma and others .vs. The
State of Maharashtra and others (Writ Petition No.705/2008, decided on
22.8.2008)   in   order   to   submit   that   in   respect   of   acquisition   for   the
purpose of State Highway, the provisions of the Central Act would stand
excluded.   The learned counsel has taken us through the proposal
including the provision of funds for the proposed acquisition which is
shown under the Head 03 i.e. for State Highway, in order to submit that
undisputedly the acquisition was for the purposes of the State Highway.
He,   therefore,   submitted   that   the   proposed   acquisition   needs   to   be
quashed and set aside.  
7] On the contrary, it is submitted by Mrs. Dangre, the learned
Government Pleader, that the proposed acquisition is only for the limited
purpose of laying a bye­pass on the outskirts of the city of Buldana.  The
learned Government Pleader submitted that it is only in respect of the
State Highway/portion, which is notified under Section 3 of the State
Act, as such, which would attract the provisions of the State Act.   In

other words, it is submitted that unless and until the portion of the land
sought to be acquired is notified under Section 3 of the State Act, the
provisions of the Central Act would not stand excluded.   The learned
Government Pleader also submitted that merely because funds for the
proposed acquisition are shown to be under the head 03 State Highway,
would not be sufficient to attract the provisions of the State Act.  The
learned Government Pleader submitted that it is the head under which
funds are ordinarily sanctioned to the Public Works Department and that
would not be decisive.   The learned Government Pleader, therefore,
submitted that the petition is devoid of any substance and is liable to be
dismissed.
8] We   have   given   our   anxious   consideration   to   the   rival
circumstances   and   the   submissions   made.   As   a   subsequent
development to the filing of the petition, it is not in dispute that by
Notification   dated   5.3.2014,   the   said   State   Highway   has   now   been
notified as a National Highway under the National Highways Act, 1956.
There was, however, no dispute during the course of argument at bar,
that this may not have any relevance for the purpose of deciding the

present controversy in question.
9] At the outset, it may be mentioned that the learned counsel
for the petitioners has not pressed the ground based on non­compliance
of Section 5­A of the Central Act.  The challenge is thus confined to the
submissions based on applicability of the State Act,  thus excluding the
applicability of the Central Act to the proposed acquisition.  The learned
Government   Pleader   has   produced   a   Notification   dated   19.4.1967,
(pertaining to the notification of the concerned road as a State Highway)
during the course of the arguments, which is to the following effect :
Deptt.   No.   BHA.3765/116348­C(2).­   In   exercise   of   the
powers conferred by sections 3, 4 and 6 of the Bombay Highways Act,
1955 (Bom. Act. of 1955), the Government of Maharashtra, hereby ­
(i) declares the roads specified in column 2 of
Schedule I appended here (more particularly
described in column 3 of the said Schedule
I) to be highways; and classifies the said
highways as State Highways to be known
the   names   respectively   specified   against
them in column 4 of the said Schedule I;
(ii) appoints the Executive Engineers mentioned
in   column   5   of   said   Schedule   I   to   be
Highway Authorities for the purposes of the
said   A   for   the   highways   so   declared   and
more   particularly   described   against   the   in

column 3 of the said Schedule I; and
(iii) appoints the officers and servants specified
in column 3 of Schedule appended hereto to
work   under   the   Highway   Authorities
respective specified against them in column
2 thereof for the purpose of enabling those
Highway Authorities to exercise the powers
conferred   and   to   discharge   the   duties
imposed   upon   them   by   or   under   the
provisions of the said Act.
The relevant entry is at Sr. No.42 of Schedule I which is as
under :
Sr.
No.
Name   of
Road
Description of Road Name   of
Highway
Name   of   Buildings   and
Communications   Division,   the
Executive Engineer of which is to
be the Highway Authority
42 MalkapurJalnaBhirTuljapurSholapur
Road.
The distance of 264.76 miles (425.08
kilometres) commencing from milo No.
0/0   (0   kilometre)   of   Malkapur­Jalna
Road   at   Malkapur   Railway   Station,
that  is  to  say  at  the  junction   of  this
road   with   Surat­Nagpur   Road
(National   Highway   No.6)   in   milo   No.
247   passing   via   Buldana,   Chikali,
Jalna,   Wadigodri,   Shahagad,   Bhir,
Chausala,   Osmanabad,   Tuljapur   and
ending   with   milo   No.2/5   (4.22
kilometre) of Solapur­Tuljapur Road.  It
comprises of the following sections.
(1)   From   Malkapur   to   border   of
Buldana and Aurangabad Districts­78
miles   (125.50   kilometres)   from   mile
No.0/0   (0   kilometre)   to   mile   No.78/0
(125.50 kilometres)/
MalkapurJalnaBhirTuljapurSholapur
Road.
The   Executive   Engineer
(Buildings and Communications),
Division, Akola.

(2)   (i) From border to Buldana and
Aurangabad   Districts   to   Jalna­11.38
miles (18.30 kilometres) from milo No.
11/3 (18.30 kilometres) to  mile No.0/0
(0 kilometre).
(ii)   From   Jalna   to   Wadigodri   30.50
miles (40.07 kilometres) from mile No.
0/0   (0   kilometres)   to   mile   No.30/4
(40.07 kilometres).
MalkapurJalnaBhirTuljapurSholapur
Road.
The   Executive   Engineer
(Buildings and Communications),
Division, Aurangabad.
It would be thus clear that initially the road has been notified
as a State Highway under Section 3 of the State Act (although the
portion   proposed   to   be   acquired   is   not   so   notified)   and   the   State
Government has also appointed the Competent Authority, as required
under Sections 4 and 6 of the State Act.   A perusal of the relevant entry
of Schedule­I would show that the Notification of any road as a State
Highway is not with reference to any survey number/s or gat number/s.
The relevant entry describes the road generally by reference to the
villages/towns   and   the   mile   numbers.     It   is   not   in   dispute   that   the
proposed acquisition is for laying a bye­pass on the State Highway
around the Buldana city.   The perusal of the administrative sanction
granted on 2.2.2007 (Annexure­19) would show that the funds for the
said acquisition were sanctioned under the head, as ‘5054’ ­ Capital
Expenditure on Road and Bridge, 03 State Highway.   The proposal

annexed to the said acquisition and in particular Clause 14 thereof
would make it clear that the acquisition was for the purpose of the State
Highway. It would be thus clear that the acquisition indeed was for a
State   Highway,   namely   Malkapur,   Buldana,   Chikali,   Jalna,   Ambad,
Wadigodri, which is now designated as the main State Highway­13.
The  question is, whether  the  acquisition which is started  under  the
Central Act is susceptible to challenge as posed.?
10] Section 19E of the State Act may be reproduced as under :
19E.  Nothing in the Land Acquisition Act, 1894 shall
apply to an acquisition under this Act.
We have already noticed that there is enough material to
show that the acquisition is for the purpose of a bye­pass on a State
Highway.  The Notification under Section 3 of the State Act describes
the State Highway generally with reference to villages and miles and not
with   reference   to   any   survey   number/gat   numbers.     Thus,   the
submission on behalf of the respondents that there is no notification in
respect of the particular area falling under the bye­pass and, therefore,
the provisions of the State Act would not be attracted, cannot obviously
be accepted.  We find that the acquisition indeed would be required to

be undertaken under the provisions of the State Act.  The preamble of
the State Act states that the Act is enacted for restriction of ribbon
development   along   highways,   for   the   prevention   and   removal   of
encroachment   thereon,   for   the   construction,   maintenance   and
development of highways, for the levy of betterment charges and for
certain other matters.  
11] In   an   unreported   decision   in   Writ   Petition   No.705/2008
(supra), although the dispute related to a challenge to the notice for
removal of encroachment, issued by the Competent Authority under the
Act, this Court has held that the State Act is a complete code in itself
and Section 19E of the State Act excludes the provisions of the Land
Acquisition Act, 1898. 
12] It would be thus clear that whenever the acquisition is for the
purposes of a State Highway governed by the State Act, the application
of the Central Act would stand excluded.   We, therefore, find that the
impugned   acquisition,   which   is   initiated   under   the   Central   Act,   thus
cannot be sustained. 
13] Consequently,   the   petition   is   allowed.     The   impugned

acquisition and the Notification under Section 6 of the Land Acquisition
Act, 1894 is hereby quashed and set aside.  It is needless to mention
that that the State/Competent Authority would be at liberty to initiate
fresh acquisition proceedings, in accordance with law.   Rule is made
absolute in the aforesaid terms with no order as to costs.
          JUDGE                   JUDGE

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