- (1.) THE intra court appeal has been preferred as against order dated 27.3.2012 passed by the Single Bench in Civil Writ Petition No.10676/2007. Petitioners have questioned legality of the notification under Section 3A(1) of the National Highways Act, 1956 (hereinafter referred to as 'the Act') published in the Official Gazette. After deciding the objections, declaration of acquisition under Section 3-D(1) of the Act was made on 5.2.2008; thereafter, the land stood vested, free from all encumbrances, in the Central Government under Section 3D(2) of the Act.
(2.) THE main thrust of challenge of the petitioners was that the acquisition was made towards eastern side of the land for the purpose of alignment/loop falling in between K.M.51 and K.M.52. It was submitted that there was no necessity to change the location of loop. The Single Bench has found that the statutory requirements provided under the Act have been duly followed. To change the loop/location plan on western side, location/loop on eastern side was required to be shifted automatically; there was no illegality in the same. Construction of the new highways and widening and development of existing highways are required for development of infrastructure in the country and are entrusted to the experts in the field of highways and the reports are prepared by persons having vast knowledge and expertise in the field of highway development and maintenance; it is for them to decide whether a particular alignment would sub-serve larger public interest. It is not for the Courts to act as an expert to suggest and to sit over such expert opinion. In the absence of malice, no case for interference is made out as the Courts are not at all equipped to decide upon viability and feasibility of a particular project and whether particular alignment would sub-serve the larger public interest. Aggrieved thereby, the intra court appeal has been preferred. Mr.Rajkamal Gaur, counsel appearing on behalf of the appellants has submitted that alignment was wrongly changed; there was no necessity for alignment on eastern side. He further submitted that the objections were not duly decided. It was necessary to decide the objections by a reasoned order. Report (R/2/9) which has been submitted to the Central Government cannot be said to be an appropriate order deciding the objections preferred by the appellants. Hence, acquisition was illegal and the same be quashed. Mr.M.D.Agarwal, counsel appearing on behalf of the respondents has submitted that it is a matter pertaining to the experts opinion; hence, the Court cannot make interference in such matters and decide from where the alignment should be made. There was due consideration of the objections, as mentioned in the report sent to the Central Government. There was no illegality in the acquisition proceedings, as such, no case for interference in the intra court appeal is made out. After hearing learned counsel for the parties, it is apparent that the objections to the notification under Section 3A(1) of the Act were duly taken into consideration. We find that it is absolutely necessary to give loop on both the sides for free and unobstructed flow of traffic. The area of survey number, as recorded in the revenue records, was not correct; as such, it became necessary to make modification and to leave certain survey numbers. Due to the aforesaid reason, the change had been accepted earlier by the experts; hence, it was appropriate to reject the objections. The widening plan has not been changed and on the basis of technical advice, objections were dealt with; no change was made in the basic design, which was prepared on the basis of technical advice. In view of the facts mentioned in the report, it is apparent that mind was duly applied to the objections and appropriate reasons were assigned for not accepting the same. This Court cannot sit in appeal in such technical matters. It is not for the Court to act as an expert and decide from which point alignment should be taken; it is for the technical experts of the field to form such opinions. There was no material change in the basic plan which is based on the technical advice. Whatever change was made, in fact was not in the basic plan, but only in the survey numbers as the information available in the revenue records was incorrect. Thus we find that no case for interference is made out.
(3.) THE Single Bench has aptly referred to the decision of the Apex Court in Union of India Vs. Dr.Kushala Shetty and Ors., AIR 2011 SC 3210, in which the Apex Court has laid down thus:- "24. Here it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. 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 viability and feasibility of the particular project and whether the particular alignment would sub serve the larger public interest. In such matters, the scope of 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. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained." In view of decision of the Apex Court in Dr.Kushala Shetty(supra) and in the facts and circumstances of the instant case, we find no illegality in the acquisition, which is for the purpose of construction of national highways. The road has also been constructed in the loop as apparent from the documents which have been filed by the respondents with their reply to the application for interim stay. Hence, no case so as to interfere in the order passed by Single Bench is made out. Consequently, the appeal being devoid of merit deserves dismissal and the same is hereby dismissed. Civil Misc. Stay Application No.5178/2012 is also dismissed. We leave the parties to bear their respective costs. ;