IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.2716 of 2019

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1. Nirmala Devi Wife of Chhedilal Kedia. Resident of Village/Mohalla-
Sonvarsha, Ward No. 1, P.O. and P.S.- Sonvarsha Raj, District- Saharsa.
2. Ashok Kedia, Son of Shyamsundar Kedia, Resident of Village/Mohalla-
Sonvarsha, Ward No. 1, P.O. and P.S.- Sonvarsha Raj, District- Saharsa.
3. Vijay Kumar Kedia, Son of Gajadhar Kedia, Resident of Village/Mohalla-
Sonvarsha, Ward No. 1, P.O. and P.S.- Sonvarsha Raj, District- Saharsa.
4. Laddu Vishwash Son of Sukhdeo Kamat, Resident of Village/Mohalla-
Sonvarsha, Ward No. 1, P.O. and P.S.- Sonvarsha Raj, District- Saharsa.
5. Rajkishore Vishwash, Son of Sukhdeo Vishwash, Resident of
Village/Mohalla- Sonvarsha, Ward No. 1, P.O. and P.S.- Sonvarsha Raj,
District- Saharsa.
6. Gautam Kumar Sah, Son of Upendra Sah, Resident of Village/Mohalla-
Sonvarsha, Ward No. 1, P.O. and P.S.- Sonvarsha Raj, District- Saharsa.
7. Govind Kumar, Son of Upendra Sah, Resident of Village/Mohalla-
Sonvarsha, Ward No. 1, P.O. and P.S.- Sonvarsha Raj, District- Saharsa.
8. Lalita Devi, Wife of Upendra Sah, Resident of Village/Mohalla- Sonvarsha,
Ward No. 1, P.O. and P.S.- Sonvarsha Raj, District- Saharsa.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary of Transport and Road
Construction Ministry, New Delhi.
2. The Chairman, National Highway Authority of India, Dwarika, New Delhi.
3. The Project Manager, NH- 107, Office at Tilrath, Begusarai (Bihar).
4. The State of Bihar, through the Principal Secretary, Department of Land
Reforms and Revenue, Bihar, Patna.
5. The District Collector, Saharsa, District- Saharsa.
6. The Land Acquisition Officer-cum-Competent Authority, NH.- 107 Saharsa.
7. The Circle Officer, Sonvarsa Circle, District- Saharsa.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Rajendra Narayan, Sr. Adv.
For the Respondent/s : Md.Khurshid Alam (AAG12)
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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA
ORAL ORDER

5 30-09-2020 Heard both sides through Video Conferencing.

2. Petitioners in this writ petition seek quashing of

notice dated 29.12.2018 issued by respondent no.6 (Land

Acquisition Officer-cum-Competent Authority) whereby and

whereunder respondent no.6 sent information to the petitioners

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to accept the compensation of land of the petitioners bearing

Khata No.15, Khesra Nos.1309 and 1310, area 0.1433 and

0.1359 acres situated in mauza Sonvarsa, Thana No.11 within

one week after producing the relevant documents for their

claim. The petitioners further seek direction to the respondent

authority to give opportunity to the petitioners for consideration

of their objections with regard to payment of compensation

treating the land commercial/residential and thereafter the

payment be made in view of the provisions of the National

Highways Act, 1956 and the Land Acquisition Act, 2013.

3. Mr. Rajendra Narayan, learned senior counsel for

the petitioners submits that for construction of 179 kms. of four-

lane of N.H.107 (Maheshkhunt-Sonvarsharaj Saharsa-

Madhepura-Purnea Section), a notice under Section 3(A) of the

National Highways Act, 1956 was published on 06.05.2015 in

Gazette Notification showing the intention of the authority to

acquire the land. In the aforesaid notification, the nature of the

land of the petitioners was described as commercial/residential.

Thereafter a Gazette Notification under Section 3(D)(i) of the

National Highways Act, 1956 was published in which also the

nature of the land was described as commercial/residential. The

respondent no.5 issued notice in the month of September, 2018

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to the land owner(s) to appear before the authority

himself/themselves and show his/their interests in the land to be

acquired. The aforesaid notice was also issued under Section

3(G)(3)&(4) of the Act and the nature of the land was described

as commercial/residential. Thereafter without considering the

objections of the petitioners, the Land Acquisition Officer vide

Award Nos.48 and 49 changed the nature of the land of the

petitioners and described the same as agricultural. The authority

directed the petitioners to bring all relevant papers and receive

the compensation amount. The petitioners filed objections and

petitions for reconsideration of the amount of compensation and

treating the land to be commercial/residential but no order has

been passed. It is further submitted that the respondents filed

counter affidavit and objected the claim of the petitioners that

the notice under Section 3(G)(3) & (4) of the Act was issued for

which information was sent to the land owners to appear in

person and clarify their interests in the lands but the authority

did not consider the objections of the petitioners and changed

the nature of the land which cannot be changed after issuance of

notice under Section 3(A) and 3(G) of the National Highways

Act. Under Section 3(G) of the Act, the Award is to be prepared

on the basis of nature of the land and the price of the land
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prevailing at the time of acquisition of the land. At the stage of

preparation of the Award, the nature of the land cannot be

changed, that too, without hearing the land owners. It is further

submitted that the petitioners have already filed a reply to the

counter affidavit and stated that the Government has described

the nature of the land as commercial/residential and also fixed

the minimum value of the land for the purpose of collection of

revenue at the time of registration of the land but even then the

nature of land of the petitioners has been changed and an award

was prepared showing the land as agricultural.

4. Mr. Khurshid Alam, learned A.A.G.12 and

Mr. (Dr.) Anand Kumar, learned counsel for the NHAI submit

that the Ministry of Road Transport and Highways,

Government of India issued comprehensive guidelines vide

Letter No.NH-I1011/30/2015-LA dated 29.12.2017 regarding

land acquisition under the National Highways Act, 1956. Clause

10(iii) of the aforesaid guidelines is with regard to

determination of compensation amount by the competent

authority. During the pendency of acquisition case, certain

undesirable practices have come to notice to the central

government including the change in the nature of the land or

adoption of incorrect classification of land for determination of

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market value of the land. It is submitted that the nature of the

land has to be treated as recorded in the revenue record on the

day of publication of notification under Section 3(A) of the

National Highways Act. It transpired that even after publication

of notification under Section 3(A) of the Act, some land owners

intentionally changed the nature of the land by raising factory

building or commercial building on the land to be acquired and,

therefore, the land owners cannot take benefit of treatment of

such land as commercial land. Due diligence has to be exercised

by the competent authority under the Land Acquisition Act

while determining the amount of compensation on the basis of

nature of the land and market value of the land. The nature of

the land of Plot Nos.1309 and 1310 has been mentioned as

dhanhar II in the record of rights. The Collector vide Letter

No.450 dated 12.04.2017 constituted a Committee to ascertain

the nature of the land. The Committee submitted its report on

29.07.2018 after issuing the notice to the land owners and the

report was approved.

5. On the basis of submissions, only question arises

whether the Land Acquisition Authority can change the nature

of the land at the time of preparation of Award, that too, without

hearing the petitioners?

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6. Admittedly in the Gazette Notification a notice was

published on 06.05.2015 showing the intention of the authority

to acquire the land for construction of N.H. 107. Under the

aforesaid notice, the nature of land of Plot Nos.1309 and 1310

was shown as commercial/residential respectively. Admittedly

the notice was published after surveying the land to be acquired

but the Officer, who surveyed the land, found the nature of the

land changed after preparation of record of rights as in the

record of rights, the nature of the land is shown as dhanhar II.

Second notice was published on 02.05.2016 for acquisition of

land. In the aforesaid notification also the nature of the land was

shown as commercial/residential. Thereafter notice under

Section 3 (G)(3) & (4) of the Act was issued to the land owners

in which also the nature of the land of Plot Nos.1309 and 1310

was shown as commercial/residential.

7. From perusal of the provisions as contained in

Section 3(A)(1) of the National Highways Act, 1956 which is

apparent that if the Central Government is satisfied that for the

public purpose any land is required for the building,

maintenance, management or operation of a national highway or

part thereof, it may, by notification in the Official Gazette,

declare its intention to acquire such land. Section 3(A)(2) of the

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Act provides that due descriptions of land shall be given in the

notification declaring its intention to acquire such land. Section

3(B) of the Act provides that after notification under sub-section

(1) of Section 3(A) it shall be lawful for any person, authorised

by the Central Government in this behalf to (a) make any

inspection, survey, measurement, valuation or enquiry; (b) take

levels; (c) dig or bore into sub-soil; (d) set out boundaries and

intended lines of work; (e) mark of levels, boundaries and lines

placing marks. Sub-section (1) of Section 3(C) of the Act

provides “hearing of objections”. Thereafter Section 3(D) of the

Act provides for declaration of acquisition after deciding

objections filed in sub-section (1) of Section 3(C) and the

Central Government shall declare, by notification in the Official

Gazette, that the land should be acquired for the purpose or

purposes as mentioned in sub-section (1) of Section 3(A). After

publication of such notice, the land shall vest absolutely in the

Central Government free from all encumbrances. Section 3(E)

of the Act provides power to take possession of the land

mentioned in the notice published under Section 3(D) of the

Act. Section 3(G) of the Act provides for determination of

amount payable as compensation. Sub-sections (3) & (4) of

Section 3(G) of the Act provide that the competent authority

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shall give public notice inviting claims from all persons

interested in the land to be acquired and appear before the

competent authority and state the particulars of the land and the

nature of their interests in such land. Sub-section(5) of Section

3(G) of the Act provides that if the amount determined by the

competent authority under sub-section (1) or sub-section (2) is

not acceptable to either of the parties, the amount of

compensation shall, on application by either of the parties, be

determined by the arbitrator to be appointed by the Central

Government. Section 3(H) of the Act provides for deposit and

payment of amount.

8. From perusal of Annexure 3, it appears that the

authority issued notice under Section 3(G)(3)&(4) of the Act

and mentioned the nature of the land as commercial/residential

but after issuance of notice under Section 3(G)(3)&(4) of the

Act, it came to the knowledge of the Land Acquisition Officer

or the competent authority under the Act that the nature of the

land as described in the notice issued either under Section 3(A)

(1) or under Section 3(D)(1) is different. In that event, the Land

Acquisition Officer or the authority, who was determining the

amount of compensation on the basis of nature of the land and

the market value of the land, is duty bound to hear the land
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owners and fix the amount of compensation. No order without

providing opportunity to the other side should have been passed

while determining the amount of compensation on the basis of

nature of the land and the valuation of the land prevailing at the

time of acquisition of the land. Any order passed determining

the amount of compensation of the land to be acquired without

hearing the land owners shall be vitiated on account of violation

of principles of natural justice. Therefore, I find that the notice

dated 29.12.2018 in Case No.04/2014-15 Panchat nos.48 and 49

(Annexure 6) is not sustainable in the eye of law and is fit to be

quashed. Accordingly, the notice dated 29.12.2018 (Annexure 6)

is quashed.

9. Thus, this writ petition is disposed of with a

direction to the Land Acquisition Officer-cum-Competent

Authority, Saharsa (respondent no.6) to hear the petitioners at

first on the point of nature of the land and the valuation of the

land and thereafter determine the amount of compensation of

the lands of the petitioners within three months from the date of

receipt of this order and pass order in accordance with law.

(Prabhat Kumar Jha, J)

Harish/-
U