w w w . L a w y e r S e r v i c e s . i n

Shivalik Agro Poly Products Ltd. v/s Union of India & Others

    CWP No. 2317 & 1498 of 2011 & COPC No. 235 of 2010

    Decided On, 21 November 2016

    At, High Court of Himachal Pradesh


    For the Petitioner: Baldev Sharma, Rakesh Thakur, Advocates. For the Respondents: Ashok Sharma, Assistant Solicitor General of India with Ajay Chauhan, Jyotsna Rewal Dua, Senior Advocate, with Charu Bhatnagar, Anup Rattan, Romesh Verma, Additional Advocate Generals with J.K. Verma, Deputy Advocate General, B.C. Negi, Senior Advocate, with Raj Negi, Abhishek Barowalia, Advocates.

Judgment Text

Tarlok Singh Chauhan, J.

1. Since the basic facts are common in all the petitions, therefore, these were heard together and are being disposed of by common judgment.

CWP No. 1498 of 2010

2. Certain bare minimum facts as pleaded may be noticed. The petitioner is an industrial unit situated at Parwanoo, Himachal Pradesh and is aggrieved by the construction of the national highway, which passes through some of the land of the petitioner.

3. The petitioner has its unit at Sector-3, Parwanoo, under the name and style of Shivalik Agro Poly Products Limited, which is operational for the last about 30 years.

4. Petitioner purchased land comprised in Khasra No. 450 vide sale deed dated 31.7.2007 and thereafter vide sale deed dated 25.7.2008 purchased another piece of land comprised in Khasra No. 449 for the purpose of expansion of its existing unit.

5. After seeking approval from the competent authority, the petitioner raised some construction on both these lands including chemical tanks constructed over Khasra No. 449. It is claimed by the petitioner that in the notifications under Sections 3A & 3D of the National Highways Act, 1956 (for short 'Act'), issued on 16.3.2007, 24.1.2008 and 9.10.2009, its land had not been included, however despite this, the respondents began construction of the national highway adjoining to its land and because of the vibrations emitted from the heavy machinery deployed at the spot, cracks initially appeared in the retaining wall which later on collapsed and thereafter cracks even appeared in some portion of the premises of the petitioner. Petitioner claimed that on account of such construction work, there was continuous threat to the life of the people as well as the building premises of the petitioner.

6. This constrained the petitioner to file CWP No. 1498 of 2010 seeking therein the quashment of notifications issued under Section 3A of the Act dated 16.3.2007, notification under Section 3D, dated 24.1.2008 and notification under Section 3A, dated 9.10.2009 and in addition thereto the direction was also sought against the respondents to refrain from carrying out further damage to the hill on which land and industrial units of the petitioner are situated and to take all remedial measure in accordance with law.

7. When the case initially came up for consideration on 19.4.2010, this Court passed the following orders:

"There will be direction to the Deputy Commissioner, Solan District, to forthwith conduct a site inspection with notice to 2nd, 5th and 6th respondents and submit a report regarding the state of affairs as alleged in the Writ Petition. This report shall be filed within a week. The petitioner will produce a copy of this order along with a copy of the Writ petition before the Deputy Commissioner, Solan on 20.4.2010. Post on 28.4.2010. It is made clear that the construction work shall be done without causing any damage to the adjoining property. Post on 28.4.2010."

8. The Deputy Commissioner submitted his report, however, this Court vide order dated 21.5.2010 issued directions to the Chairman, District Legal Services Authority, Solan to visit the place and submit its report. He accordingly visited the spot and submitted his report. On 1.6.2010, this Court passed the following orders:-

"Learned counsel appearing for the respondents, in view of the report of the District Legal Services Authority and after getting instruction from the Engineers, submitted that required temporary measure of providing concrete covering duly supported by steel beam and re-enforced with wire mesh above abutment No. 2 is being undertaken. It is also submitted that the work of filling and construction of breast and crate walls will be done on war footing basis so as to finish it in any case before the end of June, 2010. Post on 19.6.2010."

9. The National Highway Authority (Respondent No.2) in his short reply stated that it had bonafidely presumed Khasra No. 450 to be a part of Khasra No. 472 and had been executing the work over the said land and it is only on 8.3.2010 when the land was demarcated by the revenue officials that it became apparent that an area measuring 646 sqm which was earlier believed to be a part of Khasra No. 472 was actually a part of Khasra No. 450. Since the error in not covering part of Khasra No. 450 in acquisition notification occurred due to discrepancy in the demarcation record, therefore, once these facts became apparent, the mistake was sought to be rectified and requisite notification in accordance with the Act of 1956 would be issued.

10. As regards the contention regarding damage to the property of the petitioner, it has been stated that on account of steep slope and stone retaining wall of the petitioner being old, some damage had occurred in spite of the best protection taken at the site during the execution of the work. The boundary wall had been damaged at two places, which had been undertaken to be restored by the respondent at the earliest. As regards the present status of the work, it was stated that excavation work on the site had already been completed, therefore, there will be no occasion for the alleged vibration and the already excavated portion of the foundations shall be filled with earth, compacted in layers to the height varying from 10-12m to give support to the remaining slopes of the strata/hill. In addition to that two walls, breast wall and small retaining wall would be constructed as per the requirement and best engineering solutions/principles. Wherever, rock is available, the same would be covered with the short-crate treatment for retaining the same, which is common and well known treatment of rock support. It was lastly averred that the project is of national importance and timely completion thereof is in nation's interest.

Contempt Pet. No. 235 of 2010

11. It is claimed by the petitioner that respondents on 1.6.2010 had given an undertaking before this Court that they would carry out the work on war footing basis so as to finish it in any case before the end of June, 2010, as is reflected in order itself. However, the progress of the work was slow and tardy and not up to the mark and thereby the respondents had deliberately and wilfully disobeyed the undertaking so furnished to the Court, constraining the petitioner to file the COPC No. 235 of 2010.

CWP No. 2317 of 2011

12. As regards CWP No. 2317 of 2011 the same has been filed for seeking quashment of notification dated 21.6.2010 (Annexure P-12) issued under Section 3A and notification dated 7.3.2011 (Annexure P-21) issued under Section 3D of the Act wherein the land of the petitioner was sought to be acquired. These notifications have been assailed on the ground that the same were totally illegal and malafide and issued under colourable exercise of power and the same have been issued without following any procedure as provided and contemplated under the Act.


13. It is not in dispute that national highway is operational for the last more than 4 years and, therefore, the most of the issues raised in these petitions have only been rendered academic.

14. In CWP No. 1498 of 2010, as observed above, apart from seeking quashment of the various notifications, petitioner had also sought directions to the respondents for taking remedial measure so as to ensure complete protection of its property. The affidavits filed from time to time by the petitioner as also by the respondents up till the year, 2011, would indicate that sufficient steps have been taken by the respondents to protect the property of the petitioner and even the petitioner appears to have been satisfied with the same because the petitioner did not make any grievance thereafter.

15. The same is the position in CWP No. 2317 of 2011, wherein again the petitioner made no grievance till the passage of nearly 4 years and all of a sudden in this year filed miscellaneous applications wherein it has been prayed that respondents be directed to construct proper RCC retaining wall and also repair the damage, which have occurred due to incomplete remedial measures undertaken by the respondents.

16. The petitioner cannot insist upon this Court to issue writ of continuous mandamus, more particularly, when there is no public interest and that apart, the silence of the petitioner over the last 4 years speaks volumes of its conduct.

17. As noticed above, the National Highway is in operation for the last more than 4 years and the petitioner had made no grievance qua any deficiency in the remedial measures for protection of the so-called damage to the petitioner. The further question that whether certain remedial measures are still required to be taken is a matter which cannot be decided on the basis of affidavits and photographs alone. These facts have to be established by leading clear, cogent and convincing evidence that too before a competent Court of law.

18. It is more than settled that the High Court having regards to the facts of the case, has a discretion to entertain or not to entertain the writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power and this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determinations, then this Court will normally refrain from exercising such discretion.

19. Similar issues came up for consideration before this Court in LPA No. 48 of 2011, titled Shri Satija Rajesh N v. State of H.P. & Ors, decided on 26.8.2014, wherein, it was held as under:-

"31. The writ Court has also brushed aside the affidavit filed by the Chief Executive Officer of writ respondent No. 2-HIMUDA, who has mentioned in the affidavit that the bid of the successful bidders-appellants in LPA No. 1 of 2011 was received on 14th September, 2006. How the writ Court came to the conclusion that the affidavit of the Chief Executive Officer is not correct or it should have been supported by other affidavits. It appears that the writ Court has fallen in error in returning findings on disputes questions of facts.

32. The Apex Court in a case titled as D.L.F. Housing Construction (P) Ltd. v. Delhi Municipal Corpn. and others, reported in AIR 1976 Supreme Court 386, has held that the disputed question of facts cannot be gone through by the writ Court and the writ Court cannot return findings on disputed questions of facts. It is apt to reproduce para 18 of the judgment herein:

"18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit."

33. The same principle has been laid down by the Apex Court in Daljit Singh Dalal (dead) through L.Rs. v. Union of India and others, reported in AIR 1997 Supreme Court 1367 and Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others v. Smt. Sukamani Das and another, reported in AIR 1999 Supreme Court 3412.

34. The Apex Court in a case titled as State of Karnataka & Ors. v. KGSD Canteen Employees Welfare Association & Ors., reported in 2006 AIR SCW 212, has held that High Court should not exercise its powers under Article 226 of the Constitution of India in cases where disputed questions of facts have been raised. It is apt to reproduce paras 37 and 40 of the judgment herein:

"37. In a case of this nature, where serious disputed questions fact were raised, in our opinion, it was not proper for the High Court to embark thereupon an exercise under Article 226 of the Constitution. The High Court in its judgment relied upon a large number of decisions of this court, inter alia, in Reserve Bank of India (supra) and State Bank of India and others v. State Bank of India Canteen Employees' Union (Bengal circle) and others (AIR 2000 SC 1518) ignoring the fact that all such disputes were adjudicated in an industrial adjudication.

38. …..............

39. …..............

40. It was, furthermore, reiterated that a disputed question of fact normally not be entertained in a writ proceeding."

35. The same view has been taken by the Apex Court in Orissa Agro Industries Corporation Ltd. and others v. Bharati Industries and others, reported in AIR 2006 Supreme Court 198 and Rajinder Singh v. State of Jammu and Kashmir & Ors., reported in 2008 AIR SCW 5157."

20. The legal position has been reiterated by the Hon'ble Supreme Court in its recent judgment titled as Gujarat Maritime Board v. L & T Infrastructure Development Projects Ltd. and Another AIR 2016 SC 4502 wherein it was held as under:-

"10. Unfortunately, the High Court went wrong both in its analysis of facts and approach on law. A cursory reading of LoI would clearly show that it is not a case of forfeiture of security deposit "… if the contract had frustrated on account of impossibility…" but invocation of the performance bank guarantee. On law, the High Court ought to have noticed that the bank guarantee is an independent contract between the guarantor-bank and the guarantee-appellant. The guarantee is unconditional. No doubt, the performance guarantee is against the breach by the lead promoter, viz., the first respondent. But between the bank and the appellant, the specific condition incorporated in the bank guarantee is that the decision of the appellant as to the breach is binding on the bank. The justifiability of the decision is a different matter between the appellant and the first respondent and it is not for the High Court in a proceeding under Article 226 of the Constitution of India to go into that question since several disputed questions of fact are involved. Recently, this Court in Joshi Technologies International Inc. v. Union of India and others, where one of us (R.F. Nariman, J.) is a member, has surveyed the entire legal position on exercise of writ jurisdiction in contractual matters. The paragraphs which deal with the situation relevant to the case under appeal, read as follows:

"68. The Court thereafter summarised the legal position in the following manner: (ABL International Ltd. Case (2004) 3 SCC 553)"

27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition:

(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

(b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary claim is also maintainable.

28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks. [(1998) 8 SCC 1]) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."

69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion:

69.1. The Court may not examine the issue unless the action has some public law character attached to it.

69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.

69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.

69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances."

21. As regards contempt petition No. 235 of 2010, we from a perusal of order dated 1.6.2010, really do not find any undertaking actually having been furnished by respondent No. 6 so as to initiate the contempt proceedings against the said respondent. The mere fact that the remedial measures undertaken by the respondent No. 6 were not to the liking or complete satisfaction of the petitioner, in itself cannot be a ground to initiate contempt proceedings against respondent No. 6.

22. Now, adverting to CWP No. 2317 of 2011, it would be noticed that the petitioner has assailed the notifications dated 9.10.2009 and 21.6.2010 issued by the respondents under sections 3-A and 3-D of the Act, respectively on the ground that the same is colourable exercise of power and have been issued without following the procedure prescribed under the Act, and therefore, illegal and arbitrary and liable to be quashed mainly that the petitioner was not afforded an opportunity of hearing. It is contended that the petitioner had specifically requested for providing an opportunity of being heard as envisaged under section 3-C of the Act, but to no avail. Even the objections filed by the petitioner were not considered and, thus, the land of the petitioner has been acquired without following due process of law.

23. Respondent No.2 in a short reply has disputed all the contentions and has stated that as per the Act, no permanent construction is allowed within specified limit. The Section 3-A notification intended land acquisition showing intention of the National Highway Authority of India (for short 'NHAI') of four laning of Zirakpur-Parwanoo section on NH-22 and construction of bypass as a part of the project was published on 16.3.2007. The petitioner despite having full knowledge of this development had still purchased the land comprised in Khasra No.450 and executed the sale deed on 31.7.2007 for the reasons best known to it. Khasra No. 472 was part of section 3-A notification, which is a Government land, whereas Khasra No. 450 abuts Khasra No. 472. The alignment plans were available wherein Khasra No. 450 was earlier being considered part of Khasra No. 472, and therefore, was got omitted from incorporation in section 3-A notification. Even after issuance of notification under section 3-D, the petitioner purchased the land comprised in Khasra No. 449 and executed sale deed on 25.7.2008. In fact, the petitioner had full knowledge of forthcoming NH developments over which he purchased the land where no construction was legally permissible. The petitioner did not approach the NHAI seeking permission and rather sought permission for the unit right up to the end of the road boundary, which is contrary to National Highways Act.

24. It is further averred that the fact of issuance of notifications under sections 3-A and 3-D of the Act were well within the knowledge of the petitioner and were suppressed by him before the concerned authorities. According to this respondent, it has followed all the procedures that were envisaged under the Act by issuing notices in the newspaper before the acquisition and thereafter, opportunity was afforded before taking possession and the petitioner has been paid nearly 100 times the compensation, as per the averments contained in para 4 of the reply, which reads thus:

"4. That it is submitted that the Competent Authority has announced the award for the acquired land measuring 646 sqm. in Khasra No.450, of the petitioner, amounting to Rs. 2196400/-. On perusal of the registered sale deed having account/sub account No.29/55, 56, 57, land No. 450/Purla/444, 445, 446, 447, 5 Nos. area 0-99-00 Hec its share i.e. 0-46-45 Hect. which is registered for Rs. 163068 and by comparing the compensation for the 464 sqm, the compensation amount comes to 96.84 times the value as compared to the registered value of the land. It is brought out that the sale deed registered in 2007 by the petitioner is getting a return, that too from Govt. acquisition for a portion of land nearly 100 times within a span of 4 years. NHAI has received communication for award from competent Authority and further action being taken by NHAI as per the provisions of NH Act, 1956."

25. The petitioner has filed rejoinders wherein, it is averred that the award passed by the Collector appears to be ante dated and has been passed without affording an opportunity of hearing to him, as would be evident from the averments made in para 34 of the rejoinder to the reply of respondent No. 5, which reads thus:

"34. That the contents of para No. 34 of the reply are wrong and hence denied and that of the writ petition are reiterated. No hearing was afforded to the petitioner by the competent authority as repeatedly requested by the petitioner and as has been lighted in detail in the writ petition as well as in the foregoin

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g paragraphs. The order cannot be said to be speaking and appears to have been passed in an ante-dated manner after the institution of the writ petition. The said apprehension has been created in the mind of the petitioner on account of the fact that firstly the petitioner was not afforded any opportunity of being heard through a legal practitioner as repeatedly requested and secondly, has no copy of the order purported to have been passed on 29.11.2010 to the petitioner before the institution of the writ petition or issuance of notice by this Hon'ble Court. It is wrong and denied that the petitioner was heard by the competent authority on 24.11.2010." 26. It would be evident from the pleadings reproduced herein above that the specific claim of the petitioner is that the Collector had antedated the award. Obviously this question is of a complex nature and will require oral evidence for its determination and cannot be gone into by this Court in exercise of its jurisdiction. 27. It is not in dispute that earlier to filing of this petition i.e. CWP No. 2317 of 2011, the petitioner had already filed and had been pursuing CWP No. 1498 of 2010 and was, therefore, fully aware of all the developments that have taken place during interregnum. This would include the notification that was issued by the respondents from time to time under National Highways Act. That apart, the only right, which the petitioner had was a right of hearing and in case the same was denied to it, its remedy was elsewhere and not by way of the instant petition. More particularly, when the petitioner has not even sought the quashment of the award and has only sought for staying the operation of the various notifications issued under Sections 3-A and 3-D of the Act, which obviously cannot be done at this stage as the National Highway Authority of India was not only being constructed but is in operation for the last more than four years, rendering the prayer made in the writ petition redundant. However, in case, the petitioner still has any grievance, it is free to take recourse to such remedy as may be available to it under law. Conclusion 28. In view of the aforesaid discussion, CWP No. 1498 of 2010 and CWP No. 2317 of 2011 are dismissed and notice issued in COPC No. 235 of 2010 is ordered to be discharged and the contempt petition is accordingly dismissed. 29. With the aforesaid observations, all the petitions are dismissed, so also the pending application(s), leaving the parties to bear their own costs.