Rajive Bhalla, J. - (1.) THIS order shall dispose of CWP Nos. 11461 of 2005, 626 and 10687 of 2006. The petitioners impugn notifications, dated 13.4.2005 and 11.7.2005, issued and published under Section 3 -A (1) of the National Highways Act, 1956 (for short herein after referred to as "the Act"), and Section 3 -D of the Act, respectively, acquiring the petitioners' land for building of NH No. 8 from KM 24000 to KM 42000 including construction of a Toll Plaza at KM 42000 in Gurgaon District in the State of Haryana. CWP No. 11461 of 2005
(2.) COUNSEL for the petitioner submits that the petitioner is owner of land measuring 23.8 kanals, bearing Khasra Nos. 35/4 min East, 5/1, 6/2/2, 7 Min East, situated in village Kherkidaula, Tehsil and District Gurgaon, recorded in the revenue records as agricultural land. The petitioner applied for change of land use under the Punjab Scheduled Roads and Constructed Areas (Restriction of Unregulated Development) Act, 1963. Vide order, dated 3.3.2000, permission was granted for change of land use with respect to 12357 sq. yards. The petitioner constructed a four storeyed building with a covered area of 55,000 sq. feet. The petitioner was approached by officials, representing respondent No. 4 (the concessionaire) for lease of this building, as they had been awarded a tender to construct a Toll Plaza at Highway 8. The petitioner declined the request. On 26.5.2005, officials, representing respondent No. 4, forcibly entered the petitioner's premises and began taking measurements. The petitioner was handed over a photo copy of the notification, dated 13.4.2005, purportedly published under subsection (1) of Section 3 A of the Act proposing to acquire his building for construction of a Toll Plaza. The petitioner filed objections, before the competent authority -cum -Sub Divisional Magistrate, Gurgaon on 27.5.2005. On 9.6.2005, when the petitioner was called for a hearing, it submitted supplementary/additional objections. The petitioner asserted that the notification was a colourable exercise of power, a mala fide attempt to acquire his building, and the building was wrongly described as agricultural land, whereas it was a factory etc. The petitioner also asserted that as adjoining land was lying vacant, the Toll Plaza could easily be constructed on vacant land without damaging the building. Respondent No. 1 filed a reply to the objections and without denying the objections, asserted that the Toll Plaza could not be shifted, in view of the scope of the agreement/project of the Expressway, which had been decided by technical experts. It is further submitted that the competent authority, in its report, dated 28.6.2005, forwarded to the Sub Divisional Magistrate (C), recommended the shifting of the Toll Plaza. The said officer, after recording that the area is heavily populated and a large number of factories exist around the proposed site, recommended that the site of the Toll Plaza be shifted to a vacant area near village Manesar. The Deputy Commissioner, Gurgaon, vide letter dated 29.6.2005, forwarded a request to the Financial Commissioner -cum -Principal Secretary, Public Works Department (B&R), Haryana for shifting of the Toll Plaza. However, in its final order, dated 11.7.2005, the authority recorded a strange order, namely, that though "solid grounds" exist, yet keeping in view public interest, the objections could not be accepted. It is submitted that the aforementioned rejection is contradictory to and in derogation to the powers, conferred upon the competent authority, under the Act. The prescribed authority, under the Act, has to act independently, while examining the pros and cons of an acquisition. Objections cannot be rejected by stating that the objections are not acceptable in view of the public interest. Section 3C (1) of the Act entitles a landowner to file objections ".... to the use of the land...." i.e. the public purpose set out in the notification, issued under Section 3 -A of the Act. Section 3C(2) of the Act requires the competent authority to grant an opportunity of hearing to an objector and after hearing all such objections as may be raised and after making further enquiry, the competent authority may allow or disallow the objections. Thus, a prescribed authority is required to pass a reasoned order, while allowing or rejecting objections. A perusal of the order, dated 11.7.2005, rejecting the petitioner's objections discloses a complete non - application of mind and a failure to discharge jurisdiction in accordance with law. The order is cryptic, non -speaking, void and, therefore violates the provisions of Section 3C of the Act.(sic) order, rejecting the objections, is void, all sub -sequent proceedings stand vitiated.
(3.) IT is further submitted that the petitioner's refusal to lease out his factory is the mala fide cause for issuance of the notification. The petitioner's factory measures 55,000 square feet, whereas even if it is conceded that a building is required for the Toll Plaza, the concessionaire does not require such a large building.;