HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW WRIT - C No. - 9468 of 2021 Court No. - 2 HON'BLE MRS. SANGEETA CHANDRA, J. HON'BLE BRIJ RAJ SINGH, J. 1. Heard learned counsel for the petitioners and learned counsel for the respondent State. 2. The petitioners have filed the instant writ petition with the following prayers :- "(1) to issue a writ, order or direction in the nature of mandamus commanding the Opposite Party no. 2 to approve and release the amount of compensation of the petitioners acquired and non acquired, non agricultural land of Khasara No. 250 of Village Khojaphool, Pargana and Tehsil Sikandara, District Kanpur Dehat, according to their share. ii) to issue a writ, order or direction in the nature of mandamus commanding the Opposite Parties to pay and the compensation of the petitioners acquired/non agriculture land of Khasra No. 250, measuring area 200 sq. mtr. and non acquired land of 1670 sq. mtr. of Village District forthwith. Khojaphool, Pargana and Tehsil Sikandara, Kanpur Dehat, according to their share forthwith." 3. It is the case of the petitioners that the petitioners are the recorded tenure holders of Khasra No.250 admeasuring 0.7090 hectares in Village Versus Counsel for Petitioner(s) : Surya Kant Singh Counsel for Respondent(s) : C.S.C., A.S.G., Sarvesh Kumar Dubey Nathu Ram And Ors. .....Petitioner(s) U.O.I.Thru Secy. Road Transport And Highways Ministry And Ors. .....Respondent(s) Khojaphool, Pargana and Tehsil Sikandara, District Kanpur Dehat. The opposite party nos.1 and 2 acquired land of Khasra No.250 to the extent of 200 sq. meters only, as per the notification under Section 3-A and 3-D of the National Highways Act. They did not acquire 1670 sq. meters land of the same Khasra No.250 but they constructed a road over the same. An award was issued on 17.10.2016 with regard to 200 sq. meters of land of Khasra No.250 which was acquired by the respondents. Since there was no acquisition proceedings initiated under Section 3-A and 3-D of the National Highways Act for the extra 1670 sq. meters of land which the respondents took possession of, the petitioners have approached this Court with the aforesaid prayers. 4. The learned counsel for the petitioners has brought to the notice of this Court order passed by this Court earlier on 8.2.2023. The relevant extract of the order dated 8.2.2023 is being quoted hereinbelow:- "Sri Sarvesh Kumar Dubey, learned counsel appearing for the N.H.A.I. says that the counter affidavit in the matter has gone for vetting, however, on the basis of instructions he says that there is a provision under the Act for a Joint Inspection to be held of Revenue Team and officials of N.H.A.I. to determine whether more than the land for which the acquisition notice was issued, has been taken away from the tenure holder. Learned counsel for the petitioner has brought to the notice of this Court the annexure no. 13 to the writ petition saying that the Joint Inspection has already been held on his land in the presence of the officials of N.H.A.I. and the Area Lekhpal. However, he says that in case, N.H.A.I. wants another Joint Inspection, he is ready for the same. List this matter on 13.03.2023. By which date, a Joint Inspection shall be carried out by the officials of N.H.A.I. alongwith Revenue Authorities, in the presence of the petitioner to determine whether more than the land for which the acquisition notice has been issued, has been taken away from the petitioner." 5. After this order, it appears that a joint inspection was done of the property and the report dated 20.4.2023 stated that out of total area of WRIC No. 9468 of 2021 2 9880 sq. meters of Gata No.250, acquisition was made of 2990 sq. meters but on measurement being done on the spot, it was found that 1675.48 sq. meters of the same Gata number was taken possession of by the N.H.A.I. This measurement was done in the presence of the petitioners. 6. When the matter was taken up again by this Court on 26.11.2023, this Court passed the following order :- "Heard. From the report of the Joint Inspection Team, it comes out that land in excess of what was acquired under the National Highways Act, 1956, has been utilised by the National Highways Authority of India and the said excess land belongs to the petitioners. On being confronted, Shri Sarvesh Kumar Dubey, learned counsel for the National Highways Authority of India says that acquisition proceedings are already over, therefore, now by mutual negotiation some compensation or consideration would have to be paid to the petitioners, for which he has instructions to say that the opposite parties need four weeks' time. Accordingly, the matter shall now come up in the third week of January, 2025. Let the opposite party Nos. 2 to 4 file their affidavits in the matter positively by 16.01.2025 bringing on record the solution to the problem referred hereinabove. The opposite parties shall resolve the matter by the next date of listing." 7. When the matter was again taken up on 3.3.2025, the Court directed the opposite parties to bring on record the proof relating to rates on which others whose land was situated adjacent to the land of the petitioners, was acquired under Section 3-A readwith Section 3-D of the National Highways Act, 1956 and compensation was paid to them accordingly. The court also directed the respondents to show cause as to why the petitioners be not compensated for being deprived of the land recorded in their names illegally and for its illegal user by the opposite parties even if for public purpose, in addition to the sale consideration to which the petitioners may be entitled. WRIC No. 9468 of 2021 3 8. After such order was passed by this Court on 3.3.2025, a second supplementary counter affidavit has been filed on behalf of the N.H.A.I. on 18.4.2025. In such affidavit, it has been stated that out of Gata No.250, land of 2990 sq. meters was initially acquired in 2002 for Four laning of the Highway. Further an area of 200 sq. meters was again acquired in the year 2016. Thus, a total area of 2990 sq. meters has been acquired by the N.H.A.I. from Gata No.250, the total area of which was 9880 sq. meters. As per the report prepared on joint inspection on 20.4.2023, an area of 4665.48 sq. meters falls under the present ROW (Right of Way) of National HIghway which is in excess of the acquired area. However, it should be taken into account that N.H.-2 (New No.19) has been handed over by P.W.D. to the N.H.A.I. for Four laning of the Highway, before 2004 and for obtaining the record of the Right to Way land from P.W.D., letters were written to the P.W.D. Kanpur Dehat, Auriaya and Itawah, respectively. The Four laning of the Highway was carried out by N.H.A.I. in the year 2005 with the Right of Way of 45 meters in general. The recorded tenure holder i.e. the petitioners had not made any representation at the time of acquisition of land under Section 3-C of the National Highways Act and even after completion of four laning of the road in 2005 or during acquisition of additional land in the year 2016. The part of land which was under acquisition was compensated as per award dated 17.10.2016. Since the report had pointed out that additional 0.1675 hectares of land had been utilised by the N.H.A.I., compensation at the circle rate of the current year i.e. 2024- 2025 has been determined and Rs.40,88,171/- has been offered, as is evident from the letters issued in this regard to the petitioners. 9. It has also been stated in the second supplementary counter WRIC No. 9468 of 2021 4 affidavit that in a similarly situated case, in Writ-C No.7706 of 2022 : Baijnath and another Vs. Union of India and others decided on 3.11.2022, the Court had directed that the additional area if any, should be compensated by the N.H.A.I. at the same rate as determined for area which had been acquired by it. A copy of the judgement of the Division Bench dated 3.11.2022 has also been annexed as Annexure No.5 to the second supplementary counter affidavit. 10. The Ministry of Road, Transport and Highways had also issued Circular on 15.3.2016 giving a detailed procedure in cases where any additional land which was not part of the original notification of bulk acquisition is found to be required and such acquisition has to be made through mutual consent. In paragraph 4 of the Circular dated 15.3.2016, it has been mentioned that the rate shall be determined for similar type of land in adjoining area or the Circle rate/ value of similar land use, if notified by the revenue authorities for such areas as if the land owner has willingly given his land on mutual consent, the benefit of any enhanced award which may be declared by an Arbitrator and accepted by the Project Implementing authorities on subsequent to the date of agreement for sale shall also be extended to the land owner, subject to the condition that same nature and type of land in adjoining area has an enhanced rate determined by the Arbitral award. 11. Learned counsel for the petitioners has argued that since the offer has been made by the respondents of only Rs.40,88,171/-, which according to the petitioner is very less, he had not agreed. The petitioners wish that this Court may direct the respondents to acquire their land by issuing necessary notification under Section 3A and 3D of the National WRIC No. 9468 of 2021 5 Highways Act and then pass an award as it is only after an award that the petitioners would have the opportunity to challenge the same before the Arbitrator or before the District Judge concerned. 12. The compensation now being offered to the petitioners, according to the petitioners, is very less but they cannot challenge such compensation either before the Arbitrator or before the District Judge as no award for the same has been passed. 13. In view of the aforesaid submissions, this petition is being disposed of with direction to the respondents to acquire the land of 1670 sq. meters already utilised by them, by issuing notification as per procedure prescribed for acquisition and pass an award thereafter, as expeditiously as possible, say within a period of six months from the date of production of certified copy of this order before the Authority concerned. September 11, 2025 Shukla WRIC No. 9468 of 2021 6 (Brij Raj Singh,J.) (Mrs. Sangeeta Chandra,J.) Digitally signed by :- ASHUTOSH KUMAR SHUKLA High Court of Judicature at Allahabad, Lucknow Bench