Sushil Kumar & Ors. v. Union of India & Ors.

Present: Mr. Sunil Garg, Advocate, for the petitioners. Mr. O.S.Batalvi, Advocate, for respondents No. 1, 4 and 5. Mr. Manohar Lall, Addl. A.G. Punjab, for respondent No. 2. None for respondent No. 3. Mr. M.L.Sarin, Sr. Advocate, with Mr. Nitin Sarin, Advocate, for respondent No. 6. *** Jasbir Singh, J. (Oral) Reply on behalf of respondent No. 2 filed in the Court, same is taken on record. By filing this writ petition, the prayer has been made to issue a writ in the nature of mandamus directing respondents No. 1 to 5 to widen the National Highway No. 1 (for short 'NH-1'), equally on both the sides of the Road, on a stretch lying between the milestone 352.140 to milestone

353.190 . Further prayer has been made to quash notification CWP No. 4915 of 2010 2 dated 17.09.2009, vide which the land owned by the petitioners was proposed to be acquired for the above-said purpose. Prayer was also made to quash notification dated 21.01.2010 issuing final declaration to acquire the land. When notice of motion was issued on 18.03.2010, following contention of counsel for the petitioner was noticed by this Court:- “ Learned counsel for the petitioners has pointed out from the site plan (P-8) that the JCT Mills Ltd. shown in green colour has encroached upon the land belonging to the National Highway. The area of 52 feet on the side of the JCT Mills would have been available had there been no encroachment and to the extent of encroachment area some places have been reduced to 40 feet. According to the learned counsel, the acquisition of the petitioners' area who are small shop-keepers is being resorted to probably for the reason of encroachment made by JCT Mills.” In response, reply has been filed, wherein it is stated that a project of six laning of the NH-1 is being done as per the design prepared by the experts and availability of the land. However, where land is not available, the same has been ordered to be acquired. During arguments, it comes out that on some portion of land, owned by the National Highway Authority of India, the petitioners are the encroachers. To widen the road, notification has been issued to acquire some portion of land owned by them. At the time of arguments, when the matter was heard earlier on 30.07.2010, counsel for respondents No. 1 and 4 was directed to file an CWP No. 4915 of 2010 3 affidavit, stating as under:- “ i) whether up to 10 km before and after the point in dispute the road is being widened on both sides of already existing road or not? ii) whether any curve has been given to the National Highway No. 1 between 345 KM and 355 KM? Copy of the order be given dasti under the signatures of Court Secretary of the Bench.” In response thereto, affidavit of Col. Rajat Rastogi, Project Director, NHAI, Project Implementation Unit (PIU), Ambala has been placed on record, in which it has been stated that six laning of NH-1 is being done on Design, Build, Finance Operate (DBFO) pattern and the concessionaire is responsible to workout his own design as per ground requirements. In the affidavit, it has been specifically stated that widening of road has been done as per the design and technical requirement. In paragraph Nos. 5 to12 of the affidavit, it is stated as under:- “ 5. That it is also noteworthy that at the subject location i.e. Phagwara railway overbridge which is located between km 351-353 of NH-1, the unutilized right of way available on left hand side is 36 m which is much larger than unutilized right of way on right hand side. Existing right of way of NHAI on left hand side has been unlawfully encroached by shopkeepers for their commercial gains. Thus as per technical requirements on an average only 1 m to 3 m width of additional strip is being CWP No. 4915 of 2010 4 acquired by NHAI on left hand side of national highway where already 36 m unutilized land is available. Acquisition of land on left hand side is economical to the Government and moreover it is only the encroached land which is generally being reclaimed for construction. The land being acquired is bare minimal and an endeavor shall be made to restrict our construction within the available right of way.

6. Moreover, as per PUDA Act no construction is permissible within 5/10 m of schedule roads and even the existing shops are violating the PUDA norms.

7. That it is also brought out that existing fly over is constructed of reinforced earth panel on both the sides. Reinforced Earth Panels/walls are structural members on which the complete high level embankment approaches of rail overbridge are supported. If these RE walls are removed on both the sides, it is likely that the complete embankment & carriageway may crumble and collapse resulting in closure of NH-1, which is not acceptable. Thus considering the technicalities of construction after consideration, it is envisaged to widen the rail overbridge approaches by opening the RE walls on one side only. This would permit the traffic to continue use railway over bridge flyover as a diversion for period of construction.

8. That the plan and profile for 10 km i.e from KM 345 to 355 is enclosed alongwith for perusal of the Hon'ble court. From the same, it is evident that the widening of road is being done on either/one side strictly in accordance to the design and Technical requirement and availability of right of way on CWP No. 4915 of 2010 5 existing road.

9. That it is submitted that 3(D) notification under NH Act for subject land has been issued by Government of India notification S.O. 20(E) dated 06.01.2010. Hence, it is humbly prayed that the Hon'ble Court may kindly consider the provisions of NH Act.

10. That further pertaining to the query no.2, it is brought out that as per scope of six laning the construction/widening is being done on the existing alignment of four lane National Highway. No new curves are being introduced in the six laning work. Land acquisition upto 3(D) has been done in accordance to the scope of work, existing alignment, design and road safety considering the available right of way.

11. That the geometrics of existing highway curve is being retained with marginal modifications wherever the centerline is being shifted (based on requirement) to suit the design alignment.

12. That there are 16 No of minor curves between Km

345.000 and Km 355.000 details of which are enclosed as Appx-`A'.” We have also seen a copy of the site plan. Counsel for respondents No. 1, 4 and 5 makes a statement in Court that construction shall be raised as per the site plan, copy of which is annexed at page 132 of the affidavit. If that is so, we cannot find any defect in the process of acquisition. The alignment of the roads etc. is to be decided by the experts. We cannot interfere in the same unless it is proved to be mala-fide and CWP No. 4915 of 2010 6 totally absurd, which has not been shown to this Court. Dismissed. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE November 18, 2010