Patna High Court
Ashok Rai @ Ashok RayversusThe Union of India
- Decided
- Disposal
- DISMISSED
- Bench
- RAJIV ROY
Holding
The writ petition is devoid of merit and is dismissed.
Summary
The petitioners, three landowners from Manikpur village, challenged the acquisition of their lands for the Patna‑Sahebganj National Highway project, alleging that a second notification dated 29‑Oct‑2021 was concealed to benefit the owner of the Blue Lotus Hotel and that the alignment was altered improperly. They sought a writ of certiorari to quash the 14‑Jun‑2022 notification and a writ of mandamus directing construction according to the original survey. The respondents (Union of India, NHAI and officials) contended that the procedural requirements of the National Highways Act had been complied with, objections were invited and the petitioners had not filed any objections. The court held that the petitioners had failed to join the necessary party (the hotel owner) and that the acquisition process, including the two prior notifications and the final one, was lawfully executed. Consequently, the writ petition was dismissed as having no merit and the interim protection was vacated, leaving the petitioners to seek compensation under the applicable law.
Issues considered
- Whether the petitioners’ writ petition is maintainable in view of the non‑joinder of a necessary party (the owner of Blue Lotus Hotel).
- Whether the land acquisition notifications issued under the National Highways Act, 1956 complied with the procedural requirements of Sections 3, 3A and 3(d).
- Whether the petitioners are entitled to a writ of certiorari and mandamus to set aside the final notification and direct construction as per the earlier alignment.
Legislation cited
- National Highways Act, 1956 — s. 3(1), 3A(1), 3(d)
Subjects
- land acquisition
- National Highways Act
- writ of certiorari
- writ of mandamus
- procedural due process
- non‑joinder of necessary party
- mala fide allegation
- compensation
- Bharatmala project
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19292 of 2024
======================================================
1. Ashok Rai @ Ashok Ray Son of Late Rajendra Ray Resident of Village and
P.O. and P.S. and Dist.- Vaishali.
2. Ram Sunder Ray, Son of Late Ram Vilash Ray Resident of Village and P.O.
and P.S. and Dist.- Vaishali.
3. Rajkishore Ray, Son of Late Diplal Ray Resident of Village and P.O. and
P.S. and Dist.- Vaishali.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of Road Transport and
Highways.
2. The Chief General Manager, National Highway Authority of India, Regional
Office, Patna.
3. The Regional Director, National Highway Authority of India, Regional
Office, Patna.
4. The Project Director, National Highway Authority of India, Motihari.
5. The District Land Acquisition Officer, Muzaffarpur.
6. The District Magistrate, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sunil Kumar, Advocate
For the State : Mr. Amit Bhushan, AC to GP-17
For the NHAI : Dr. Maurya Vijay Chandra, Advocate
Mr. Gaurav Govinda, Advocate
Ms. Preety Ranjan, Advocate
For the UOI : Mr. Arun Kumar Satyamurti, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
7 13-03-2026 Heard Mr. Sunil Kumar, learned counsel for the
petitioners, Mr. Amit Bhushan, learned State counsel and Dr.
Maurya Vijay Chandra for the National Highway Authority of
India (for brevity, ‘the NHAI’)
2. The present petition has been preferred for the
following relief(s):
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“for issuance of a writ in the nature of
writ of Certiorari quashing Notification No. S.O.
2724(E) dated 14.06.2022, published in "Prabhat
Khabar" and "Hindustan" by the competent
authority of the Ministry of Road Transport and
Highways, Government of India under sub-section
(1) of Section 3A of the National Highways Act,
1956, in respect of the land of the petitioners
bearing Khesara No. 233, 243, 245, 248, 249, 253,
254, 259, 260, 261 and 262 situated at Manikpur
village by which the NHAI has acquired the entire
area of their lands by altering in the earlier
alignment/Map in favour of "Blue Lotus Hotel" to
benefit the owner thereof whose small part of the
property would be acquired if the original
alignment is executed for the purpose of
construction, maintenance, management of four-
lane National Highway between Patna-Sahebganj
corridor- Adalwari-Manikpur section (Starting at
Bakarpurhat NH-19 Bypass and ending at
Manikpur) in the stretch of land from Km. 0
(Bakarpurhat) to Km.38.646 (Manikpur) in the
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district of MUZAFFARPUR in the state of BIHAR
in pursuance of Notification No. 2456(E) dated
22nd June 2021 and further issuance of a writ in
the nature of writ of Mandamus directing the
respondents to construct/build-up the four-lane
road in accordance with the earlier Survey and
measurement done in pursuance of Notification No.
2456(E) dated 22nd June 2021. And/or pass such
other order or orders, directions to which the
petitioners are entitled.”
3. The details of the land has been incorporated in
prayer portion itself, as recorded above which is under
Manikpur Village in the District of Muzaffarpur.
4. The Ministry of Road Transport and Highways (for
brevity ‘the MOTH’) came up with the notification dated
21.06.2021 which is for the maintenance, management and
operation of the Bharat Mala Patna Sahebganj Corridor-
Adalwari-Manikpur section starting at Bakarpurhat NH-19
bypass and ending at Manikpur.
5. Parts of the aforesaid land of the petitioners were
published in the said notification dated 21.06.2021 inviting
objections from the date of publication of the notification under
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sub section 1 of the Section 3 of the National Highways Act,
1956 (henceforth for short, ‘the Act’).
6. The record shows that subsequently on 29.10.2021,
‘the MOTH’ came up with another notification to incorporate
further lands of the land holders which included the lands of the
petitioners as recorded in paragraph-1 of the writ petition. Once
again, the objections were invited.
7. After going through the objections and disposing it
of, finally, ‘the MOTH’ came up with the notification dated
14.06.2022 and it records that the objection so filed were
considered and disallowed and the report submitted by the
competent authority thereafter under Sub Section 1 of the
Section 3(d) of the ‘the Act’. This followed the declaration of
the acquisition of the land in question.
8. The further case is that the petitions were preferred
by the petitioners before the District Magistrate, Muzaffarpur as
also the District Land Acquisition Officer, Muzaffarpur on
25.01.2023 which followed the present writ petition.
9. The contention of the petitioners is/are that though
they had knowledge about the first notification dated
21.06.2021; they were completely blacked out so far as the
second notification dated 29.10.2021 is concerned. Further, the
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contention is that the second notification has been brought on
record in order to benefit the owner of ‘Blue Lotus Hotel’ and to
protect his portion of land from the acquisition.
10. The case of the petitioner is/are that:
“(i) since 4 decimal of the Blue Lotus Hotel
was required in the earlier notification dated 21.06.2021,
to save the same, the second notification has come by
which 66 decimals of the petitioners’ land is/are being
taken;
(ii) the alignment has been made only to oblige
the said owner of the Blue Lotus Hotel, in that process,
the alignment of the sixty years old State Highway road
has also been changed and
(iii) the legal procedure has not been
followed.”
11. Dr. Maurya Vijay Chandra represents ‘the NHAI’
and has filed affidavits. Learned counsel at the outset makes
preliminary objection that the entire story revolves around the
Blue Lotus Hotel and the allegation is that to benefit and to save
the small portion of the said Hotel, ‘the MOTH’ changed the
alignment which followed the second notification.
12. He submits that surprisingly, the Blue Lotus
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Hotel/its owner has not been made party-respondent in the
present case. In that background, the petition is fit to be
dismissed for non joinder/misjoinder of parties.
13. Learned counsel in support of his contention has
cited the case of Hon’ble Supreme Court in Mumbai
International Airport Pvt. Ltd vs Regency Convention
Centra & Hotels Private Limited & Ors. reported in (2010)
7 SCC 417.
14. The order in Mumbai International Airport
Pvt. Ltd. (supra) has further been quoted in another case of
Hon’ble Supreme Court in Moreshar Yadaorao Mahajan vs
Vyankatesh Sitaram Bhedi (D) reported in 2022 SCC online
SC 1307 and paragraphs 17 and 18 read as follows:
“17. This Court, in the case of Mumbai
International Airport Private Limited (supra), has
observed thus:
"15. A "necessary party" is a person who
ought to have been joined as a party and in whose
absence no effective decree could be passed at all
by the court. If a "necessary party" is not
impleaded, the suit itself is liable to be dismissed.
A "proper party" is a party who, though not a
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necessary party, is a person whose presence would
enable the court to completely, effectively and
adequately adjudicate upon all matters in dispute
in the suit, though he need not be a person in
favour of or against whom the decree is to be
made. If a person is not found to be a proper or
necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff.
The fact that a person is likely to secure a
right/interest in a suit property, after the suit is
decided against the plaintiff, will not make such
person a necessary party or a proper party to the
suit for specific performance."
18. It could thus be seen that a
"necessary party" is a person who ought to have
been joined as a party and in whose absence no
effective decree could be passed at all by the court.
It has been held that if a "necessary party" is not
impleaded, the suit itself is liable to be dismissed.”
15. Learned counsel also wanted this Court to take
note of paragraph nos. 7, 9 and 11 of the counter-affidavit to
support his contention that due process has been followed in the
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requisition process. It read as follows:
“7. That the NHAI is a professionally
managed statutory body having expertise in the
field of development and maintenance of national
highways with persons of vast knowledge and
expertise in infrastructure field. The Hon'ble
Supreme Court in Union of India vs. Kushala
Shetty and Ors. (2011) 12 SCC 69 has observed the
narrow scope of judicial review. The relevant
portion of the judgment is reproduced herein
below:
"28. NHAI prepares and implements
projects relating to development and maintenance
of National Highways after thorough study by
experts in different fields. Detailed project reports
are prepared keeping in view the relative factors
including intensity of heavy vehicular traffic and
larger public interest. The Courts are not at all
equipped to decide upon the viability and
feasibility of the particular project and whether the
particular alignment would subserve the larger
public interest. In such matters, the scope of
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judicial review is very limited. The Court can
nullify the acquisition of land and, in rarest of rare
cases, the particular project, if it is found to be ex-
facie contrary to the mandate of law or tainted due
to mala fides."
9. That the petitioner has no cause of
action to file the instant writ petition as the
averments made in the present writ petition
alleging malafide are bald without any specific
reasons assigned to the allegation. The mere fact
that change in the alignment will benefit a party is
baseless in absence of specific material to show
malafide. The Hon'ble Supreme Court in E.P.
Royappa vs. State of T.N. (1974) 4 SCC 3 has
stated as below:
"92. Secondly, we must not also overlook
that the burden of establishing mala fides is very
heavy on the person who alleges it. The allegation
of mala fides are often more easily made than
proved, and the very seriousness of such
allegations demands proof of higher order of
credibility."
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11. That the Hon'ble Supreme Court in
Project Director Project Implementation Unit vs.
P.V. Krishnamoorthy & ors. (2021) 3 SCC 572 has
held as following:
"63.3. It is true that the Project
(Bharamala Pariyojna Phase I) was conceived
after a scientific study as a comprehensive project
at the macro (national) level for 24,800 kms. in
Phase I, spanning over a period of 5 years (201718
to 202122) at an estimated outlay of INR 5,35,000
crores with an objective to improve the efficiency of
freight and passenger movement across the country
by bridging critical infrastructure gaps through
effective interventions like development of
Economic Corridors, Inter Corridors and Feeder
Routes (ICFR), National Corridor Efficiency
Improvement, Border and International
connectivity roads, Coastal and Port connectivity
roads and Greenfield expressways. This Project,
being a macro level project, does not reckon the
nuanced imperatives of a particular region or area,
which may only be a miniature of the whole Project
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traversing across around 24,800 kms. in Phase I.
Hence, it is humbly submitted that on a
larger scale where alignments were either
approved/changed by the competent authority, the
same was carried out in line with the objectives of
Bharatmala project and without influence of single
landowner/s.”
16. The further submission is that on 21.06.2021, the
first notification came which included part of the petitioners’
land; objections were invited and it is not the case of the
petitioners that they ever submitted any objection.
17. Subsequently, the second notification came on
29.10.2021 and again, the petitioners chose to look the other
way. After going through the objections and disposing it of, the
final notification came on 14.06.2022.
18. The submission is that when the petitioners
themselves chose not to file any objection despite the
notifications issued on 21.06.2021 and 29.10.2021; ‘the
MOTH’ was fully justified in issuing the notification dated
14.06.2022.
19. The further submission is that earlier, the
petitioner took a stand that there is no second notification and
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without issuance of any notification, the 14.06.2022 final
notification has come. It was an incorrect statement and a
deliberate attempt to hoodwink the Court. By way of affidavit,
they have brought on record that indeed, the second notification
was issued on 29.10.2021 and after objections in both the
notifications dated 21.06.2021 and 29.10.2021; the final
notification came on 14.06.2022.
20. The further submission is that lots of water has
flown down the Ganges since the land of the petitioners’ stand
acquired. It is high time, that they take legal steps for seeking
compensation of the lands in question after showing their bona
fide.
21. Learned State counsel adopts the submissions put
forward by ‘the NHAI’.
22. Having heard the parties and going through the
records of the case, this Court has taken note of two facts:
23. Though the petitioner alleged mala fide against
the officials to be in league with the owner of the Blue Lotus
Hotel and only to save his land, the second notification dated
29.10.2021 came into existence, however, neither any Official
(by name) nor the owner of the Blue Lotus Hotel have been
impleaded as party-respondents in the present case. Clearly, the
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petitioners want an order behind the back of the owner of the
Blue Lotus Hotel and the first point put forward by the learned
counsel for ‘the NHAI’ that the writ petition is fit to be
dismissed for non-joinder/misjoinder of necessary parties seem
to be quite justified.
24. So far as the Second contention of the petitioner
that the notification dated 14.06.2022 came into existence
without there being any second notification which included
further lands of the petitioners, ‘the MOTH’ indeed came up
with the second notification dated 29.10.2021 to show that it
was published and it was only after the objections so received
from all the land holders with regard to both the notifications,
the final notification was published on 14.06.2022.
25. The petitioners who chose not to file any objection
and sat over the matter are themselves to be blamed. It is further
clear that knowingly, they suppressed this fact about the second
notification while invoking the writ jurisdiction. The
petition/representation claim to have been filed is/are belatedly
in the year 2023 after the final notification was published on
14.06.2022.
26. Considering the aforesaid facts and taking into
account the submissions/documents on record, this Court can
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only record that now that the land in question stands acquired
and ‘the MOTH’ has taken the due legal process before
issuance of the notification dated 14.06.2022, the petitioners if
so want can take steps for getting the compensation amount in
accordance with law after showing their bona fide for the land
that stands acquired.
27. So far as the writ petition is concerned, it is
devoid of any merit and is accordingly dismissed. The interim
protection granted to the petitioners stands vacated.
(Rajiv Roy, J)
Adnan/-
U
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