1. Heard learned counsel for the appellants, learned counsel for the State, as also learned counsel for the National Highway Authorities of India, (hereinafter referred to as "NHAI").
2. The appellants are aggrieved by the impugned Judgement dated 15.12.2017, passed by the Writ Court in W.P.(C) No. 4672 of 2010, whereby the writ application filed by the appellants writ petitioners, challenging the acquisition of a chunk of 4.47 acres of land for the purpose of construction of the Ring Road, falling within the boundaries of Vikas Vidyalaya, Ranchi, has been dismissed by the Writ Court.
3. The appellant Vikas Vidyalaya, Ranchi, (herein after referred to as the 'school'), is an educational institution / school imparting education since the year 1952. It is situated in 172.47 acres of land, wherein the constructed area is 57.50 acres, and the rest of the land is lying vacant.
4. The appellants writ petitioners had challenged the notification contained in letter No. 10/DLA Ranchi (Path)-60/2009-50/Ra. Ranchi, dated 12.01.2010, issued under Section 4 of the Land Acquisition Act,1894 (hereinafter referred to as the "Act"), whereby the Additional Collector-cum-Land Acquisition Officer, Ranchi, and his subordinate officers were authorised to survey and enter upon the chunks / plots of land as mentioned in the said notification, required for the public purpose, i.e., construction of Ring Road. In the said writ application, another notification issued on the same day, i.e., on 12.01.2010, acquiring the land in question under Section 6 of the Act, was also challenged.
5. By the aforesaid notifications 9.83 acres of lands as described in the notification were proposed to be acquired for the public purpose, i.e., construction of the Ring Road around the city of Ranchi. Out of the said 9.83 acres of land, 4.47 acres of land belong to the appellant school, and the entire chunk of land is within the boundary of the school.
6. It may be stated that the process of acquisition of land for the construction of the Ring Road, is complete, and the major portion of the Ring Road has already been constructed, and being used by the public at large. All the raiyats, whose lands have been acquired, have also received their compensations, but the appellant school refused to receive the compensation offered by the State.
7. The Writ Court adjudicated the matter and found that due to the bifurcation of the then State of Bihar, w.e.f. 15.11.2000, and after creation of the State of Jharkhand, Ranchi was declared as the capital city of the new State of Jharkhand, which faced sudden increase in the commercial activities as well as immigration from different places, making the existing traffic condition in the city miserable, and therefore, the State Government conceived and planed that the Ring Road in the outskirts of the city of Ranchi should be constructed without delay, to ease out the choked traffic condition in the city. Accordingly, the notification under Section 4 of the Act was issued by the State Government for acquisition of the land, invoking the urgency provision under Section 17(4) of the aforesaid Act. On the entire chunk of the land which was proposed to be acquired within the school area, no installation / building of the school is existing, and in fact the land was recorded in the records of right as "Parti Kadim" & "Don", i.e., waste or arable land. The Writ Court however, did not go into that question, but mainly took into consideration the fact that the requirement of the land was for the purpose of the construction of the Ring Road, which was going to serve the greater public interest, and in fact the considerable portion of the Ring Road had already been constructed and made operational. The Writ Court accordingly, found that it would not be appropriate to interfere with the acquisition proceeding at the instance of the petitioner, and it was also not appropriate to change the alignment of the road, as the technical survey had already been made and the central line was fixed for the construction of the Ring Road, and any deviation in the same was not possible at that stage, as the major portion of the Ring Road had already been constructed. Taking note of the decisions of the Hon'ble Apex Court cited by learned counsels for both the sides, the Writ Court came to the conclusion that the opinion of urgency found by the appropriate Government to take immediate possession was a subjective conclusion based on the materials before it, which was entitled to great weight, unless it was found to be vitiated by mala fide and colourable exercise of power. Since there was no element of mala fide in the present acquisition of land, the writ application was dismissed by the Writ Court. Aggrieved, thereby the present L.P.A. has been filed.
8. Though in the present appeal, the acquisition of the land falling within the school area is under challenge and it is the case of the appellants that the acquisition proceeding was absolutely illegal, but this Court, taking into consideration the fact that Ring Road was going to serve the greater public purpose, was of the opinion that the acquisition of land could not be annulled. We had also been given an understanding that the appellant school was aggrieved only by the fact that by the proposed construction, the premises of the school was going to be divided into two parts, on one side of the road there are school buildings and the other activities of the school going on, whereas on the other side there is a big chunk of land on which though presently no construction is there, but it was argued that the extra-curricular activities of the school were going on the said land. We had also been given an understanding that the school would not object the construction of the Ring Road, if its alignment is changed and the acquisition of the land within the school premises be made by the side of the boundary wall of the school, where there was no construction, so that the school is left with one big chunk of land. This understanding given to us, is also stated in the supplementary affidavit filed by the appellants on 18.11.2019, stating "if the respondents shift the alignment of the Ring Road as such shifting shall not bifurcate / trifurcate the land of the appellants, the appellants are willing to cooperate as the same will also protect the school and security of the students".
9. As the request of the school to change the alignment of the road could not be acceded to, as the major portion of the Ring Road had already been constructed and it was not possible to change the alignment of the road, a proposal was mooted out that without disturbing the construction of the Ring Road which was admittedly going to serve a very important public purpose, let an under-pass be provided at the cost of the State, for the inmates of the school to approach the land on the other side of the road, which passage shall be provided beneath the proposed Ring Road within the premises of the school. On such proposal given on 06.08.2019, learned counsels for both the sides requested for an adjournment for consideration of the proposal at their ends and to come up with the response by the next date, and accordingly, the case was adjourned. On the next date when this matter was taken up on 14.08.2019, a supplementary affidavit was filed on behalf of the State by which they brought on record a letter dated 06.08.2019 issued by the NHAI to show that there was already a provision for under-pass which goes from the Vikas Vidyalaya to the river side, and as such the demand for separate under-pass for the individual purpose was neither justified nor technically possible. It was also stated that the construction of the other under-pass shall delay the project.
10. Since it was stated that the construction of the under-pass was not technically possible, by our order dated 14.08.2019, we directed NHAI to be added as a party respondent in the appeal, and we wanted their response also. As the work had already been started for the construction of the Ring Road within the boundary of the school, this Court by the said order also passed an ad-interim order to maintain the status quo as on date, so far the construction of the Ring Road within the premises of the school was concerned.
11. The NHAI accordingly, responded to the notice and appeared through their Advocate, and when the matter was again taken up on 03.09.2019, learned counsel for the NHAI tried to impress upon us that it was not feasible for the NHAI to make provision for under-pass within the premises of the school. Learned counsel also explained the reasons for such non-feasibility and one of the reasons was that there was a proposal of flyover also over the Ring Road, within the premises of the school. This was a new thing which was brought to the knowledge of the Court by NHAI on 03.09.2019. Accordingly, we directed the NHAI to explain the entire thing through 3-D model, not only showing the proposed Ring Road and the flyover, rather adjacent buildings and the land scape within the boundary of the school, for proper appreciation of the matter.
12. The matter was again taken up on 23.10.2019, when we were shown the 3-D presentation of the proposed construction of the Ring Road, which was accompanied with 07 photographs, which were kept on record. Such a picture of the Ring Road was never perceived by this Court earlier, as for the first time it was disclosed that the Ring Road was passing through the school in an elevated form and on both the sides of the Ring Road, service roads were also there on the ground level, which were running throughout the premises of the school. It was again the case of NHAI on that date also, that the construction of the under-pass was not possible. Having examined the 3-D presentation, this Court held that the Ring Road with service roads on both sides on the ground level cannot be allowed to be constructed within the premises of the school, as admittedly fast moving traffic shall be moving on the service road on both sides of the Ring Road, which shall be a constant danger to the safety of the students and the inmates of the school. In the opinion of the Court the only option that was left, was to make the construction in such a manner so that there shall be no service road within the premises of the school and the under-pass had to be provided within the premises of the school in the elevated Ring Road by making necessary alteration in the road plan. The other option that was given that the State may acquire the entire land of the school on the other side of the proposed Ring Road, so that the school may put the boundary wall by the side of the Ring Road, so that the students and the inmates of the school may not have any direct access to the Ring Road. At this proposal, the learned counsel for the State prayed for time for seeking instructions from the State for the acquisition of the land of the school on the other side of the proposed Ring Road, and it was made clear that if the land of the other side of the Ring Road was not acquired, the Court shall not allow the construction of the Ring Road without any under-pass for the use of the students and the inmates of the school giving them approach to the other side of their land.
13. We have given the details of the aforesaid orders and the exercises undertaken by the Court for facilitating the students and the inmates of the school to have access to their land on the other side of the road, only in order to show that on none of these dates it was the stand of the appellants that they shall be objecting the construction of the Ring Road even with the under-pass, and they shall be sticking to their point that the acquisition itself was illegal and had to be set aside, meaning thereby that no construction of the road shall be allowed on the land acquired for the purpose.
14. After the order dated 23.10.2019, interlocutory applications have been filed on behalf of the NHAI as also on behalf of the State. In the interlocutory application filed on behalf of the NHAI it is stated that in view of the orders passed by this Court, the competent authority by its letter dated 25.11.2019 has given in-principle approval to provide an additional under-pass and dispense with the provisions of the service road within the campus of the school. The said letter dated 25.11.2019 has been brought on record, and it is prayed that in view of this stand taken by the NHAI, the ad-interim order dated 14.08.2019 be vacated, so that the construction should go on. While placing this interlocutory application, learned counsel for the NHAI gave the liberty to learned counsel for the appellant school to choose the place where they wanted the under-pass to be constructed, within the boundary wall of the school.
15. Another interlocutory application was filed by the State of Jharkhand in which it was simply stated that in view of the new proposal given by the NHAI, the status-quo order be vacated.
16. When NHAI came with the proposal and agreement to provide an under-pass in the proposed Ring Road within the premises of the school, the appellants have taken a summersault in their approach. The consolidated reply to both the I.As. have been filed on behalf of the appellants, stating that they are not agreeable to the construction of the Ring Road within the premises of the school and they stick to their earlier challenge to the acquisition of the land. Learned counsel for the appellants has also submitted that the appellants had never given up their challenge to the acquisition.
17. This submission of learned counsel for the appellants is only fit to be rejected, in view of the statement already made in their supplementary affidavit that "if the respondents shift the alignment of the Ring Road as such shifting shall not bifurcate / trifurcate the land of the appellants, the appellants are willing to cooperate as the same will also protect the school and security of the students", and also in view of the fact when this difficult exercise was undertaken by the Court to see that there shall be no compromise with the safety of the school children and they are not put to undue harassment by the proposed construction of the Ring Road, it was never objected by the appellants that they were not agreeable to such approach / proposal of the Court. The appellants were always taking part in the proceeding, as if they shall be satisfied with the construction of the under-pass, if provided by the NHAI, so that they can easily approach the land situated on the other side of the proposed Ring Road. Only when the NHAI has agreed to provide the under-pass in the proposed ring road and also to do away with the service road within the boundary of the school, stiff attitude has been taken by the appellants that the proposal is now not acceptable to them and they shall be sticking to their challenge to the acquisition of the land. It is reiterated by the learned counsel for the appellants that they had never given up the challenge to the acquisition of the land.
18. On the merits of the case, learned counsel for the appellants has drawn our attention towards Section 17(4) of the Land Acquisition Act, 1894, which reads as follows:-
"17. Special powers in cases of urgency.-
(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable the appropriate Government may direct that the provisions of Sec. 5-A shall not apply, and if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the date of publication of the notification under section 4, sub-section (1)."
19. Placing reliance on this provision, it is submitted by learned counsel for the appellants that before issuing a notification invoking this section, an opinion has to be formed by the appropriate Government as to the urgency for the acquisition. Learned counsel submitted that there is no such opinion of the appropriate Government on record, showing the urgency about the acquisition of the land. It is further submitted by learned counsel for the appellant that the declaration under section 6 of the Act that the land is required for public purpose, has to follow after the date of publication of the notification under section 4 of the Act. It is submitted by learned counsel that both the notifications under section 4 and section 6 of the Act have been issued on the same day, which is not permissible in the eyes of law. In this connection learned counsel has placed reliance upon the decision of the Hon'ble Apex Court in State of Uttar Pradesh Vs. Radhey Shyam Nigam & Ors., (1989) 1 SCC 591 , wherein it has been held as follows :-
"14. -------------. But the words "after the date of the publication of the notification" in sub-section (4) of Section 17 read simipliciter clearly indicate that declaration under Section 6 had to be made after the publication of the notification meaning thereby subsequent to the date of the publication of the notification. It appears to us that there is nothing in the scheme of the Act which militates against such a construction. At times where emergency provisions are invoked emergent action may be taken but in such a situation in view of the state of law that was before it, the legislature has made a conscious change which cannot be explained away merely because this is as a consequence of the changes in Sections 4 and 6 of the Act."
20. Learned counsel has also placed reliance upon the decision of the Hon'ble Apex Court in Union of India & Others vs. Mukesh Hans, (2004) 8 SCC 14 , wherein it has been held as follows:-
"32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. -------------."
21. Placing reliance on these decisions, it is submitted by learned counsel for the appellants that in view of the aforesaid illegalities the impugned acquisition cannot be sustained in the eyes of law. Learned counsel has also placed reliance upon an unreported decision of the Hon'ble Apex Court in E.A. Aboobacker & Ors. Vs. State of Kerala & Ors. (Civil Appeal No. 2772 of 2011 decided on 27.09.2018), wherein it is held as follows:-
"When the State wants to acquire the property of a citizen which is a Constitutional right of any citizen under Article 300A of the Constitution of India it must strictly follow the procedure prescribed by law. It cannot urge that because the acquisition is in public interest a more liberal view is to be taken. There is no question of taking a liberal or conservative view. The only view which has to be taken is the legal view."
A plain reading of this Judgement shows that this decision was given by the Hon'ble Apex Court in the backdrop of the fact that the Tahsildar who had acted in that case for acquisition of the land, was appointed as Collector only with respect to acquisition of another land and not the land in question.
22. Learned counsel for the appellant has also placed reliance upon the decision of the Hon'ble Apex Court in Prabhawati & Ors. vs. State of Bihar & Ors, (2014) 13 SCC 721 , wherein where the land was acquired for construction of the police line, the law was laid down by the Hon'ble Apex Court as follows :-
"12. Shri Ranjit Kumar, learned Senior Counsel appearing for the respondents tried to persuade the Court not to nullify the notification issued under Section 4 by saying that larger public interest would adversely suffer. In the first blush, the argument of the learned Senior Counsel appears attractive but, on a deeper consideration of the matter in the light of the constitutional principles and the constitutional rights available to the appellants under Article 300-A of the Constitution not to be deprived of their property except by authority of law, we are unable to accept the submission that quashing of the acquisition at this stage would amount to putting the clock back or would adversely affect the public interest. Though, the property right is no longer a fundamental right, it is well settled that no one can be deprived of his property without authority of law. Therefore, the plea of inconvenience cannot be accepted for approving the action of the State Government, which is ex facie illegal, arbitrary and unconstitutional. -----------."
23. A new and additional point has also been taken by the learned counsel for the appellants during his arguments in this appeal, which was not originally taken in the appeal, submitting that since the appellants have not yet received the compensation, their case would also be protected by Proviso to Section 24(2) of the Right to Fair Compensation and Transpiracy in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which reads as follows:
"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.-
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
24. It is submitted by learned counsel that this question is still sub-judice before the Hon'ble Apex Court in Petition(s) for Special Leave to Appeal (C) Nos. 9036-9038 / 2016, and the matter has been heard by a Constitution Bench and the judgement is reserved. It is also submitted by learned counsel that in one of such cases the High Courts have been requested not to deal with the cases relating to interpretation of or concerning Section 24 of the aforesaid Act. Making out this point, learned counsel submitted that hearing of this appeal should be deferred till the decision of the Constitution Bench of the Hon'ble Apex Court.
25. This submission of learned counsel cannot be accepted, for the simple reason that the point relating to interpretation of Section 24 of the Right to Fair Compensation and Transpiracy in Land Acquisition, Rehabilitation and Resettlement Act, was neither involved in the writ application nor before this Court in this appeal, rather this question is alien to the subject matter of this appeal, inasmuch as, the compensation was offered to the appellant by the State, but the appellants had refused to accept the compensation. All the other raiyats, whose lands have been acquired, have already received their compensations. As such, there is no applicability of the aforesaid provision in this case at all.
26. Learned counsel for the State on the other hand has opposed the prayer and has drawn our attention towards a decision of a co-ordinate Bench of this Court, in the case of State of Jharkhand and Ors. Vs. Swati Enterprises,2019 2 JBCJ 268 (HC), wherein the acquisition of land for the same purpose of construction of the Ring Road was questioned before this Court. This Court has dealt elaborately with the process of acquisition of the land for construction of the Ring Road at Ranchi, and has given the reasons for the construction of the Ring Road in paragraph-9 of the Judgement which read as follows:-
"9. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that the construction of the Ring Road itself is an urgency. Reasons of urgency have already been given by the Government which has been discussed by the learned Single Judge in the internal page no.4 of the order. The said reasons as enumerated in supplementary counter affidavit filed by the appellants in Civil Review application reads as under:-
"(i) After creation of new State of Jharkhand in the capital city of Ranchi there has been enormous increase and addition of various types of vehicles which has resulted into traffic congestion.
(ii) The increase of numbers of vehicles in the capital city was a reason of constant and frequent traffic jam and congestion.
(iii) After the creation of new State of Jharkhand, Ranchi being the capital city a number of VIP's and VVIP's authorities of the State and Central Government regularly visit the capital city and to avoid unnecessary delay and also for their safety and security a smooth running traffic is necessary.
(iv) Therefore in order to provide smooth and fast mobility of vehicles an idea was mooted for construction of Ranchi Ring Road.
(v) It was decided that for the aforesaid construction of Ranchi Ring Road a detail project report shall be prepared.
(vi) It was decided that the length of the Ring Road will be 85.089 kilometres which will consist of six lanes and for the said purpose a recommendation was made and placed before the cabinet.
(vii) That the matter was approved by the cabinet and under the signature of Commissioner-cum-Secretary, Road Construction Division, Ranchi, a Memo bearing no.4747 dated 22.11.2004 was issued."
27. Taking into consideration various decisions of the Hon'ble Apex Court in the matter, it has been held as follows:-
"15. In view of the aforesaid decisions, the subjective satisfaction arrived at by the Government for invoking urgency clause for the construction of Ring Road around the city of Ranchi in the State of Jharkhand cannot be made a subject for judicial review. This Court has no expertise knowledge of the construction of the road and the priority of the Government in urgency. Every Government has its own priority and urgency. Court is not evaluating the subjective satisfaction arrived at by the Government. What can be viewed in judicial review is whether the Government had followed the procedure for invoking Section 17 of the Land Acquisition Act, 1894 and nothing beyond that. Thus, only procedure to be followed by the Government for invoking Section 17 of the Land Acquisition Act, 1894 can be looked into, but, not the sufficiency of the reasons given by the Government. There is no malafide exercise of powers by Government."
28. In the said case this Court has upheld the acquisition of the lands for construction of the Ring Road, dealing with the urgency provisions in the Act. This Court has also dealt with Section 24 of the Right to Fair Compensation and Transpiracy in Land Acquisition, Rehabilitation and Resettlement Act, and has rejected the plea. The Court has also dealt with the argument of changing the alignment of the Ring Road, holding as follows:-
"19. It has also been mentioned in the writ petition that if the land is acquired the original petitioner will lose the factory and therefore, Government should change the alignment of the Ring Road. This is nothing, but, a perversity in the mind of the original petitioner. Ring Road cannot be altered for one petitioner --------------."
29. Having gone through the decision of the co-ordinate Bench of this Court, we find that all the relevant questions on which the acquisition could be challenged, have already been decided by the Division Bench of this Court, which is a binding precedent. There is no reason for this Court to differ from the said findings. Accordingly, the submissions of learned counsel for the appellants, challenging the process of acquisition, are hereby, rejected. The request of the learned counsel for the appellants that his challenge to the acquisition of the land be decided afresh in this case again, is only fit to be rejected. This cannot be done, also keeping in view the public interest at large, and the fact that the construction of the Ring Road, major portion of which has already been constructed and being used by the public at large, cannot be obstructed for a small chunk of 4.4 acres of land only. Accordingly, we reject the request of the learned counsel for the appellants to enter into the adjudication about the legality or otherwise of the acquisition process, once again.
30. We have already stated above that even during the pendency of appeal a supplementary affidavit has been filed by the appellants, agreeing in principle to the acquisition of their land for construction of the road within their boundary, if the alignment
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of the road is changed. As already held, the alignment of the Ring Road cannot be changed for the convenience of the appellants only, and also because most part of the Ring Road has already been constructed and being used by the public. 31. In view of the aforesaid stand of the appellants, this Court had taken the pains for about last more than five months, mooting proposals so that the Ring Road may be constructed without any delay, and at the same time the students and the inmates of the school may not be put to any undue disadvantage and unsafe position, and they be able to approach the land of the school on the other side of the road without any hassle, for carrying out their extra-curricular activities, and even for other activities which may come up in future. After a lot of exercise the NHAI in its Interlocutory Application No. 11659 of 2019 has come out with a clear proposal that they are ready to dispense with the provision of service road within the campus of the school and also to provide an additional underpass for the use of the students and the other inmates of the school. In fact on the last date learned counsel for the NHAI had also given the liberty to learned counsel for the appellant to select the place for construction of the underpass. The letter dated 25.11.2019 annexed with the Interlocutory Application is absolutely clear in the aforesaid terms, which reads as follows:- "2. In connection with above, I am directed to convey that Competent Authority has in-principally agreed with your proposal to provide additional underpass and dispensing the service road within the campus of Vikas Vidyalaya i.e. service road on both side of underpass at Km. 1.273 for the subject package. Accordingly, the variation proposal be expeditiously submitted under the provision of contract." 32. In view of the undertaking given by the NHAI, we recall the order dated 14.08.2019, whereby we had directed to maintain status quo so far as the proposed construction of Ring Road, within the premises of the school is concerned. We give the liberty to the NHAI to proceed with the construction of the Ring Road within the premises of the school, without any service lane by the sides of it, and by providing the under-pass at the place agreeable to the appellants. In case the appellants do not give any agreeable place, the NHAI shall be free to put up the under-pass within the premises of the school at any suitable place, so as to connect the existing buildings and structures at one side of the road, to the larger chunk of land on the other side of the road. The exercise for choosing the place for putting the underpass shall be completed by the appellants positively within a period of 15 days from today, so that the respondent NHAI may start the construction of the road soon thereafter. 33. We do not find any illegality in the impugned Judgement dated 15.12.2017, passed by the Hon'ble Single Judge in W.P.(C) No. 4672 of 2010, worth any interference in exercise of LPA jurisdiction. 34. There is no merit in this appeal, which is accordingly, disposed of with the directions and observations as above. The pending Interlocutory Applications also stand disposed of.