03 Jul 2121

The State cannot take a citizen's property unless it follows the legal procedure - Bombay High Court

Case : Bhagauji S/o Nathaji Maind and Ors. v. The State of Maharashtra and Anr. Writ Petition No. 5250 of 2020

Court : Bombay High Court

Bench : Justice S. V. Gangapurwala and Justice Shrikant D. Kulkarni

Decided on : 03 Jul 2121

The Relevant Statutes

Article 226, 300A of the Constitution of India

National Highway Act, 1956

Land Acquisition Act, 1894

44th Constitutional Amendment, 1978

Section 3 of Bombay Highways Act, 1955

Brief Facts & Procedural History

1. The petitioners are residents of several villages in Taluka Jalna and Ambad, Jalna District. They possess agricultural property on both sides of National Highway 753H. (previously known as State Highway No. 176). According to the petitioners, they have residential buildings, wells, fruit trees, a bore-well, and other structures on their agricultural grounds, which are also next to National Highway No. 753H.

2. The route in dispute was once a minor road that was transformed into a State Highway without compensation to the petitioners during the development of the State Highway.

3. The petitioners claim that the current road width is about 12 metres. The respondents just issued a letter of award and began expanding/upgrading the road to 30 metres without having to acquire land. The respondents are attempting to evict the petitioners from their property. The petitioners have been warned not to use police force when taking possession by the respondent authorities. The petitioners have said that they are not opposed to the expanding or upgrading of the road in issue, but that the authorities should purchase their individual property to upgrade the roadways by the law. The authorities did not begin acquisition proceedings while turning the mall road into stated Highway No. 176, leaving them without compensation for the areas that were acquired. The respondents have begun a phase-by-phase upgrade of the route in question from Sillod to Wadigodri. The petitioners are worried about the Dhangar Pimpri to Wadigodri phase, for which the authorities are seeking to take control of their property by force under the guise of a resolution respecting nearby road lands that do not require purchase. The authorities' position is untrustworthy.

4. According to the petitioners, the government or state authorities cannot seize a landowner's property without following proper legal procedures. Article 300-A of the Constitution states that no one's property can be taken away from them unless they have legal permission to do so. The action taken by the respondent authorities in taking forced control of the petitioners' lands for road widening by demonstrating the Government Resolution violates Article 300-A. The petitioners are all in the same boat. Their shared fear is that the respondent authorities would take forcible control of their separate lands without following due process of law. In light of the foregoing, they have rushed this Court by using Article 226 of the Indian Constitution's exceptional authority.

5. In light of a Central Government Notification/Gazette, respondent nos. 2, 4, and 7 claims that the road in question is a component of National Highway No. 753H. The road was formerly known as State Highway and was under the administration of the Maharashtra government and the jurisdiction of Executive Engineer P.W.D. Jalna. The road in question has been in the hands of the government for more than 40 years. The contested route used to be State Highway No. 50A, however from 1981 to 2001, it was designated as State Highway No. 176, and from 2001 to 2021, it was designated as major State Highway No. 13. The Maharashtra Gazette declared the stated main State Highway a 30-metre road in 1996. A Government Resolution has been issued by the State Government to that effect. In light of the Supreme Court's ruling in State of Maharashtra Vs. Digambar 1995 (4) SCC 683, the Union Government maintains that the petitioners cannot seek compensation for property acquired during the expansion of the road as a State Highway after 20 years.

6. The Union of India/Central Authorities maintains that they are not building new roads, but rather upgrading existing roads with the same alignment and adapting them to National Highway standards. The road is being built inside the Right of Way (ROW), which is 30 metres (100 feet) as per the Road Development Plan, which is a two-lane road. The road's expansion to the National Highway standard will assist neighbouring farmers by allowing them to move agricultural produce from remote locations and nearby rural areas to metropolitan centres. It has the potential to enhance the local economy. This will enhance communication between villages and cities, as well as access to medical facilities, education, and other services.

7. The Central Authority further claims that the petitioners are attempting to obtain compensation for properties that were previously used for the road's development more than 56 years ago. According to the scales of village maps from Shahpur, Dadhegaon, and other places, the road is 30 metres wide everywhere, and the current road has been depicted in the Maharashtra government's road construction plan for the year1961-1981 (SH-50A), 1981-2001 (SH-176), and 2001-2021 (MSH-13) of the former Aurangabad District, which was conducted from 1968 to 1969 and updated in 1971. The above-mentioned route is part of the Sillod - Bhokardan, Hasnabad - Rajur, Bhavanpangari – Jalna – Ambad-Wadigodri road network, and is designated as State Highway No. 176 in the 1981-2001 road construction plan. The route has since been renovated to become National Highway 753H. The road was originally owned by the PWD Division of Aurangabad, but was later transferred to Jalna and then to the National Highway Division of Aurangabad.

8. The authorities further claim that the road is being built on an existing road. In light of the prior judgments issued by this Court in Writ Petition No. 11112/2017, the petitioners are not entitled to any remedy under Article 226 of the Constitution of India. The road is being built within the boundaries of the current road, and if it is not completed, the authorities may suffer a significant loss. Because road building is taking place entirely inside the right-of-way, the issue of acquiring neighbouring property for road construction does not arise. The petitions were found to be without merit.

9. According to the State Authority/State Government, the route in question was known as State Highway No. 50A according to a State Government Notification. Jalna - Wadigodri was the name of the road. State Highway No. 50A was renamed State Highway No. 176 in the updated development plan for the years 1981-2001. State Highway No. 176 is already listed in the updated road construction plan for the years 1981-2001. If the route passes through an open and agricultural region, the usual width of the road is 30-46 metres. State Highway No. 176 is upgraded to State Highway No. 13 in the Jalna District's updated development plan for the years 2000-2021.

10. The present road is up to 30 metres wide, and this fact has not been challenged for 50 years. The authorities are upgrading the road within 30 metres of the current location. The Wadigodri village map also reveals the presence of a road built by D.S.L.R., Ambad. According to the scales, the width of the road now is 30 metres. The existence of a road can also be shown on the village maps of Dakalgaon, Dadegaon, and Shahpur. The road in dispute runs beside the petitioners' property, however, the State Authorities/National Highway Authorities are working within their legal boundaries.

11. The presence of a 30-meter-wide road in Vadi Godri and neighbouring settlements, notably those near to the petitioners' property, cannot be denied. The petitioners do not have access to the road area, which is 30 metres wide. Maharashtra Jeevan Pradhikaran built the water supply pipeline from Sinhagad to Wadigodri, Dadegaon, Dakalgaon, Shahpur, Math Tanda, Ambad, and Jalna, taking into account the existing road width of 30 metres. The communication to that effect inside the authorities is recorded, and it may be taken into account in determining whether the authorities' argument was supported.

12. The authorities also claim that numerous people requested authorization from them before establishing their businesses, such as a gas station or any other work/O.F.C. cable, even though the road's current width is 30 metres. It was for this reason that approval was sought. The petitioners cannot argue the width of the road as 30 metres because the District Collector, Jalna, has given No Objection to the concerned by taking into account the existing width of the road as 30 metres.

13. The State Authorities' position is that, as of today, National Highway Authorities are working within 30 metres of the State Highway No.176's width. The authorities are upgrading the road to a maximum width of 30 metres and no more. The officials refute the claim that the road is 12 metres wide.

14. Petitioners are forbidden by the rules of delay and laches, according to the State Authorities. It is also subject to the statute of limitations. The roadwork has also begun and is nearing completion. The remaining work must be completed for the sake of the general public.

The Issue(s) of the Case

Whether the width of the existing National Highway No. 753- H is 30 meters?

Whether the width of the National Highway No. 753-H is being enhanced by the authorities from 12 to 30 meters, without due process of law?

The Observations of the Court

1. Honourable High Court of Judicature at Bombay observes that based on scales indicated on the various maps at specific locations, the width of the road amounts to 30 metres when looking at village maps of villages Shahapur, Dadegaon, Dhakalgaon, and Math Tanda. According to the estimations and other papers supplied by the P.W.D., the road that runs through Ambad city is a two-lane road and seems to be a 30-meter road. However, it is regarding the town of Ambad. The issue is the road width in the villages of Shahapur, Dadegaon, Dhakalgaon, and Math Tanda, which are served by National Highway No. 753-H (formerly known as State Highway No. 176) that runs through them. Is the National Highway No. 753-H 30 metres wide? This is a question that must be addressed based on solid data. Producing maps of specific towns and copies of road construction plans may not be sufficient to reach a judgement and record a finding. That might be a mistaken exercise. Following a thorough review of the above-mentioned maps, plans, and other documents, the Honourable Bombay High Court have discovered that the road width varies between 30 metres and less than 30 metres in several areas.

2. Referring to the case of Pradyumna Mukund Kokil Vs. State of Maharashtra and others reported in 2015 (4) All M.R. 983, the Apex Court held that it would be improper for a government body or any State authority to take possession of someone's land without following due process of law and that even if a citizen has consented to his land being used by the government authority, the authority should not take undue advantage of that consent when compensating the citizen when the land is acquired.

3. Referring to the case of Tukaram Kana Joshi and others Vs. MIDC and others reported in 2013 AIR (SC) 565, The Apex Court concluded that the subject of delay condonation is one of discretion and that it must be resolved based on the facts of the case at hand since they vary from case to case. It will depend on the nature of the alleged basic right violation and the remedy sought, as well as when and how the delay occurred. It's not that the Courts can't use their powers under Article 226 after a certain amount of time has passed, nor that there can never be a scenario where the Courts can't intervene in a matter after a particular amount of time has passed. In some cases, the desire for justice may be so strong that the High Court is compelled to intervene notwithstanding the delay. Finally, it would be a matter for the Court's discretion, which must be applied properly and justly to advance justice rather than to thwart it.

4. Honourable High Court of Judicature at Bombay also observes that a person's right to property is a human right, and under Article 300-A of the Constitution of India, he or she can only be stripped of it by legal authority. The State cannot take a citizen's property unless it follows the legal procedure. Though not specifically stated in Article 300-A of the Constitution of India, the duty to pay compensation can be inferred from it.

5. Referring to the case of Vidyadevi Vs. Himachal Pradesh and Ors (SLP No. 6066/1995), if a person is forcibly removed from his private property without due process of law, it is a violation of both human and constitutional rights under Article 300-A of the Constitution of India, as determined by the Honourable Supreme Court of India.

6. Honourable High Court of Judicature at Bombay also observes that upgrading a road to becoming a National Highway is a development project. It would undoubtedly benefit the general public in the area, including the petitioners. They are agriculturists, and their agricultural products can be transported quickly to the larger cities, where they may be sold for a high price. At the same time, we must not neglect the responsibilities entrusted to state authorities. The responders are the state and federal governments who are building the National Highway. They are meant to be role models in the courtroom. When the property is going to be acquired, the State and Central authorities are expected to respect petitioners' rights and follow correct legal procedures. The respondents/authorities are unquestionably obligated to follow the law. There should be no arbitrariness in any judgement in a society regulated by the rule of law. In suitable situations, the courts must utilise their extraordinary writ authority under the Indian Constitution to prevent the State Authorities from acting arbitrarily.

The Decision Held by the Court

Honourable High Court of Judicature at Bombay held 

1. The respondents-authorities shall, as soon as possible and preferably within four months, conduct measurements of National Highway No. 753-H (previously known as StatecHighway No. 176) at villages Shahapur, Dadegaon, Dhakalgaon, and Math Tanda through appropriate authority in the presence of both sides.

2. If the width of the road in the various villages is confirmed to be 30 metres at the moment of measurement, the petitioners' adjacent property will not be acquired.

3. If the width of the road is less than 30 metres at the moment of measurement, the State and Central governments must surely follow the proper process in acquiring land to the amount needed.

4. To avoid any misunderstanding, the road measurement activity in the above-mentioned villages would be carried out under the supervision of the District Collector, Jalna.

5. These writ petitions have been dismissed as a result of the aforesaid instructions.

6. In terms of petition clause (B), Civil Application No. 5553/2020 in Writ Petition No. 5250/2020 and Civil Application No. 3480 in Writ Petition No. 7270/2020 are permitted.

7. Civil application No. 5136/2020 in writ petition No. 5250/2020 and civil application No. 5114/2020 in writ petition No. 4937/2020 have also been dismissed due to the dismissal of writ petitions.

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