State Highway cannot be constructed without acquisition of lands by Govt, Bombay HC

The Bombay High Court on 30 April, 2020 {MANOHAR GANGADHAR GHAYAL AND OTHERS  v. THE STATE OF MAHARASHTRA AND OTHERS} held that the respondent State and its instrumentality are expected to be model litigants. It was held that it is not expected of the respondents to usurp their power in denuding the petitioners of their property and that too their source of livelihood. The Court held that the respondents cannot construct the road beyond 12 meters width without resorting to due procedure of law viz acquiring the property under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and/or by private negotiation. It was held that the respondents are supposed to nay required to adhere to the rule of law. Action defiant to the rule of law is arbitrary. It was held that Arbitrariness has no role in a society governed by rule of law. The Court held that arbitrariness is an antithesis to rule of law, justice, equity, fair play and good conscience. It was held that the Courts in such cases would step in exercising the extraordinary powers under Article 226 of the Constitution of India to restrain an arbitrary action.

It was held by the Bench of Bombay High Court comprising, Justice S. V. GANGAPURWALA & Justice SHRIKANT D. KULKARNI, that the gravamen of the petitioners contention is that, in the year 1971-72 under the Employment Guarantee Scheme 10 meter wide road was constructed. No compensation was paid at that time. Subsequently, the said road is declared as a State Highway. Though said road is declared as State Highway, the width of the 10 meter road was never expanded. It remained 10 meter wide road. After the road was declared as State Highway, acquisition proceedings were not undertaken. It was held that it is illegal on the part of the respondents to contend that, ROW is 30 meter. The Court held that the respondents cannot deprive the petitioners of their property without due process of law. The petitioners placed reliance on Article 300-A of the Constitution of India.

The issue before the Bombay HC was the extent of the width of the road, the respondents can construct without acquiring the property of the petitioners.

In the present cases, undisputed facts emerging were 10 meter road was constructed under Employment Guarantee Scheme in the year 1971-72 and thereafter no further work was carried and only on paper the roads were declared as District major road and State Highway. The petitioners also relied upon law laid down by Supreme Court in regard to compulsory requirement of acquisition to use private land.

However, it was the case of the respondents that according to manual of Ministry of Road Transport and Highways, New Delhi, the Right of Way for State highways is 30 meters. This State highway No. SH-224 is in existence since 2001- 2021. Before that it was major district road since 1981-200 which has right of way of 24 mtrs. It was contended by the respondents that as development is done within existing right of way. No land acquisition proposal seems to be necessary.

The writ petitions was partly allowed by the Bombay HC. It was held that by the HC that the respondents are allowed to carry out the work on writ road to the extent of 10 meter wide plus one meter on either side i. e. 12 meter wide. It was held by the HC that the respondents shall not carry out construction of writ road beyond 12 meter without following due procedure of law. Further, held that the respondents in that case shall acquire the affected property from the legitimate owner in accordance with the provisions of law or by private negotiations. The Writ Petition was accordingly allowed by the HC.