In Ashok Rai @ Ashok Ray Son of Late Rajendra Ray & Ors. vs. The
Union of India through the Secretary, Ministry of Road Transport
and Highway & Ors. (2026), Patna High Court's Division Bench of Justices Meenakshi Madan Rai and Soni Shrivastava delivrered a 14-page long judgement dated June 24, 2026, wherein, it concluded:"we find that the impugned Judgment and
Order dated 13.03.2026, of the learned Single Judge in
Civil Writ Jurisdiction Case (C.W.J.C) No. 19292 of 2024)
warrants no interference. Consequently, this LPA stands
dismissed and disposed of." The judgement was authored by Chief Justice Rai. It is one of the 39 judgments delivered by her Division Bench upon joining the High Court as its 48th Chief Justice on June 5, 2026. During her brief tenure she authored 791 orders besides some 40 judgements.
In Ashok Rai @ Ashok Ray Son of Late Rajendra Ray & Ors. vs. The Union of India through the Secretary, Ministry of Road Transport and Highway & Ors. (2026), Justice Rajiv Roy of Patna High Court passed a 14-long order dated March 13, 2026, wherein, he concluded:"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 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 inaccordance 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."
The other six respondents were: Chief General Manager, National Highway Authority of India, Regional Office, Regional Director, National Highway Authority of India, Regional Office, Patna, Project Director, National Highway Authority of India, Motihari, District Land Acquisition Officer, Muzaffarpur, District Magistrate, Muzaffarpur.
The appellants by filing the L.P.A had assailed the judgment by Justice Roy by which the writ petition was dismissed
concluding that it was devoid of merit. The appellants
seek the setting aside of the impugned Judgment.
2. The appellants’/petitioners’ case was that, vide Notification No. 2456(E) dated June 22, 2021 the Ministry of Road Transport and Highways
(MORTH) declared its intention to acquire the lands
detailed in the Schedule thereto for building,
maintenance, management and operation of Bharatmala
Patna-Sahebganj corridor (Adalwari-Manikpur Section)
ending in the stretch of land from Bakarpurhat to
Manikpur, District-Muzaffarpur. The Notification was published in the Hindi
newspaper Prabhat Khabar and Hindustan, both dated July 10, 2021 and Dainik Bhaskar and Times of India,
both on December 1, 2021. Necessary measurements were undertaken and map prepared. Pursuant to such steps,
objections were raised by some stakeholders, which were
considered but disallowed by the competent authority.
Subsequent thereto, the MORTH issued another
Notification, dated June 14, 2022, bearing No. 2724(E),
declaring its intention to acquire lands specified in the
annexed Schedule. The appellants had submitted that the second
Notification indicated an alteration in the acquisition of
the lands, vide which the earlier alignment was deviated
by about 400 feet allegedly to favour the owner of the
‘Blue Lotus’ Hotel. By such deviation, only a small portion
of the property of ‘Blue Lotus’ Hotel, would be acquired,
but a larger area of the appellants’ property would be
taken thereby infringing on the property rights of the
appellants.
The contention of the counsel for the
appellants is that on publication of the first Notification,
the map regarding acquisition was prepared which
proposed a straight alignment, for the formation of the
four lane highway to minimize, and ensure equal
distribution of acquisition on both sides of the existing
road. However, subsequently without any technical
justification or prior notice to the appellants, the
alignment was altered exclusively as already agitated. Such realignment shifted the entire burden on to the
appellants’ land and livelihood. Relying on Dev Sharan
and Others vs. State of Uttar Pradesh and Others (2011) 4 SCC 769,
it was submitted that the Hon’ble Supreme Court has
observed therein that, Section-5A of the Land Acquisition
Act, 1894, embodies a very just and wholesome principle
of giving proper and reasonable opportunity to a
landuser of persuading the authorities that his property
should not be acquired. That, Section-5A has to be read
in tandem with the provisions of Article 300A of the
Constitution of India. It is next put forth that, despite the
appellants having approached the concerned competent
authorities on the matter, no steps were initiated. It is
contended that the impugned Judgment of the Single Judge, erroneously held that the appellants were
at fault for not objecting to the Notification of 2021, when
in fact no reason arose for the appellants to object to the
said Notification, as it did not infringe upon their rights.
That, the injury to the appellants was only caused by the
subsequent clandestine re-measurement and revised
map.
The counsel also submitted that the finding of the Single
Judge that non-joinder of ‘Blue Lotus’ Hotel owner is
fatal, is legally flawed. On this count, strength was drawn from the decision in Smt. Savita Garg vs. The
Director, National Heart Institute (2004) 8 SCC 56, wherein the
Supreme Court held that so far as the law with regard to
non-joinder of necessary party under the Civil Procedure
Code (CPC) Order 1 Rule 9 and Order 1 Rule 10, lays
down that no suit shall fail because of mis-joinder and
non-joinder of parties. In any event the Court has
the power under Order 1 Rule 10(4) to give directions to
implead a person who is a necessary party. That, no such
direction was given by the Single Judge.
The counsel for the respondents walked the High Court
through the provisions of Section 3A, 3C and 3D of the
National Highways Act, 1956, and emphasized that it
provides for as follows; Section 3A vests the Central
Government with power to acquire land for public
purpose, for construction of National Highway and to
declare its intention a notification with description of land
is to be published in the Official Gazette; Section-3C
provides for hearing of objection raised by any person
aggrieved by such acquisition and the competent
authority has the discretion to allow or disallow the
objection; Section-3D provides for declaration of
acquisition and the purpose of such acquisition by
2 (2004) 8 SCC 56 publication of the declaration in newspapers. That it is
specifically provided that once a declaration is made by
the Central Government, it shall not be called into
question by any Court or by any other authority. It was
next contended that one two-lane Railway Under Bridge
(RUB) was already in existence and another was
proposed to be constructed. Since a mandatory distance
was required to be maintained between the two Railway
Under Bridges, the realignment of the road was proposed
for that purpose.
Drawing strength from the decision in Union
of India vs. Kushala Shetty and Ors.,2011) 12 SCC 69, it was
canvassed that judicial review has a narrow scope and
that the decision to alter any alignment as part of
National Highways is a policy decision within the clear
domain of the Central Government.
8. The allegations pertaining to mala fides are
without any specific reasons assigned to the allegations
and the contention that a change in the alignment will
benefit a party is baseless, in the absence of specific
materials to show the mala fides. To that extent, reliance
was placed on the decision of the Supreme Court
rendered in the case of E.P. Royappa vs. State of
Tamil Nadu and Anr(1974) 4 SCC 3,wherein, it was observed that the
3 (2011) 12 SCC 69
4 (1974) 4 SCC 3 burden of establishing malafides is very heavy on the
person who alleges it. The alteration of the alignment by
the competent authority, was in line with the objectives
of the Bharatmala Project, sans influence of any land
owner. That, at the time when the DPR was submitted for
approval at the headquarters of the NHAI, there was no
Railway Under Bridge (RUB) nor were there Railway
tracks, hence, the consultant had no occasion to inquire
from the Railways. Based on the approved Letter of
Award of Contract (LAC), dated May 18, 2020, the first
Gazette Notification dated 21.06.2021 was issued,
however, after the DPR consultant learned of the RUB
construction while taking data on the field for 3D
notification, the realignment took place to include the
RUB, pursuant to which the Gazette Notification dated June 14, 2022 came to be published.
Chief Justice Rai observed: "The entire process has
been carried out in a fair manner. The order of the
learned Single Judge thereby warrants no interference." She added:"11. In our considered view, it is appropriate to
point out that the law relating to the exercise of Intra
Court Jurisdiction has been laid down by a Division Bench
of the Supreme court in the case of Management of
Narendra & Company Private Limited vs. Workmen
of Narendra & Company (2016) 3 SCC 340:
The Supreme Court has held that:-
“5……………………… Be that as
it may, in an intra-court appeal, on a
finding of fact, unless the Appellate
Bench reaches a conclusion that the
finding of the Single Bench is perverse, it
shall not disturb the same. Merely
because another view or a better view is
possible, there should be no interference
with or disturbance of the order passed by the
Single Judge, unless both sides agree for
a fairer approach on relief.”
Chief Justice Rai observed: "12. That, having cleared the cloud on Intra-Court
Appeals, after examining the pleadings and considering
the arguments advanced before us, in our considered
view the appellants have firstly failed to establish the
mala fides against the concerned authorities, for the
purpose of benefiting the owner of the ‘Blue Lotus’ Hotel.
Although, the learned counsel for the appellants
hastened to point out to the Court, during the arguments
advanced that no specific mala fides were alleged in the
averments, however, we are inclined to agree with the
submissions of the learned counsel for the respondents,
that, the suggestion that the road was being realigned
for the benefit of ‘Blue Lotus’ Hotel is sufficient to
insinuate mala fides which is without substantiation. The
submission on the facet of mala fides deserves to be and
is accordingly, disregarded.
13. While considering the aspect on issuance of
Notifications, the appellants concedely have no argument
with regard to the first Notification. The grievance of the
appellants is confined to the second Notification, dated
14.06.2022, which alleged was issued sans notice and to
their prejudice. This submission cannot be countenanced for the fact that, the Notification was issued in the
Government Gazette, which is an official legal process
designed to bring inter alia administrative decisions into
the public domain. Such publication is deemed sufficient
notice to all interested parties fulfilling the requirements
of transparency and in addition to the above it gives
legal authority to governmental action including land
acquisition."
The judgedment reads: "14. On this facet strength is garnered from
Union of India and Others Vs. Ganesh Das Bhojraj 2000 SCC OnLine SC 438,
paragraph 14 which provides as follows;
“14. From the aforesaid judgment it can be
stated that it is an established practice that
the publication in the Official Gazette, that
is, the Gazette of India (sic is an) ordinary
method of bringing a rule or subordinate
legislation to the notice of the persons
concerned. Individual service of a general
notification on every member of the public
is not required and the interested person
can acquaint himself with the contents of
the notification published in the Gazette. It
is the usual mode followed since years and
there is no other mode prescribed under the
present statute except by the amendment
in the year 1998 by Bill 21 of 1998.”
Notably, reliance was also placed on Viraj Impex Pvt.
Ltd. Vs. Union of India and Anr., 2026 SCC OnLine SC 101, wherein at paragraph 16 the Supreme Court observed: “16. The requirement of publication in the
gazette,
therefore,
serves
a dual
constitutional purpose, i.e. (a) it ensures
accessibility and notice to those governed
by the law, and (b) it ensures
accountability and solemnity in the
exercise of delegated legislative power.
The requirement of publication in the
gazette, is therefore not an empty
formality. It is an act by which an executive
decision is transformed into law. It is
precisely for this reason that courts have
consistently insisted that strict compliance
with the publication requirements is a
condition precedent for the enforceability
of delegated legislation.”
In the penultiumate paragraph of the judgement, the Division Bench observed: "16. Ignorance of publication of such Notification,
cannot be a ground to demolish the case of the
respondents.
17. Indeed, while agreeing with the submission
of the appellants that they had no reason to object to the
first Notification, as it appears that the objections raised
by other stakeholders were considered but disallowed by
the respondents, it is apposite to notice that the
Statement of Objects and Reasons of the National
Highway Act, 1956 inter alia mentions therein that
Parliament has exclusive powers of legislation with respect to Highways which are declared to be National
Highways as proper development of road infrastructure is
essential for economic development of the country.
18. Section-3A and 3C of the National Highways
Act, 1956 as already discussed herein, also lays down the
powers of the Central Government to acquire land where
it is satisfied that for public purpose, any land is required
for the building, maintenance, management or operation
of National Highway or part thereof. The requirement of
such intention is to be notified in the Official Gazette.
Should objections be filed before the competent
authority, it shall after hearing the objections and making
further inquiries, may by order, either allow or disallow
the objection. It is no one’s case that Notifications to
acquire the property were not published, in the obtaining
facts the respondents cannot be foisted with the
responsibility of the lack of awareness of the appellants.
We also cannot fault the observation of the learned Single
Judge regarding non impleadment of the ‘Blue Lotus’
Hotel. It was for the appellants to have either sought for
impleadment of the said Hotel as a respondent to the
petition or mentioned it before the Court to enable the
Court to take appropriate steps. In any event, it was for
the petitioner to have ensured impleadment of the party
as no order can be issued behind the back of a party who is unaware of the Court proceedings, the decision of
which would likely affect it."
Also read:Justice Meenakshi Madan Rai all set to take charge as 48th Chief Justice of Patna High Court
No comments:
Post a Comment