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National Highway Authority Of India And Another Applicant(s) v. Tehal Singh And Others (s).
Factual and Procedural Background
This miscellaneous application, heard on 30 July 2021 by the Supreme Court of India (R.F. Nariman and B.R. Gavai, JJ.), arises out of Civil Appeal No. 7086 of 2019, National Highways Authority of India & Anr. v. Tehal Singh & Ors. The applicants, represented by Senior Counsel Sh. Shyam Divan, sought clarification/modification of the Court’s earlier judgment dated 19 September 2019. The application focused exclusively on correcting two passages in that judgment.
Legal Issues Presented
- Whether the reference to “Section 23(1A)” in paragraph 41 of the 19 September 2019 judgment—despite that provision never being invoked in the litigation—should be deleted.
- Whether the statement in paragraph 42 of the same judgment, placing on the National Highways Authority of India (NHAI) the burden to prove both (a) that the acquired land is within 50 metres of the national highway and (b) that the land lacks commercial potential, was intended as a rule of general law or confined to the facts of those specific appeals.
Arguments of the Parties
Applicants’ Arguments (NHAI)
- Paragraph 41 erroneously includes the phrase “(1A) and” in reference to Section 23 of the Land Acquisition Act even though Section 23(1A) was never invoked before any authority or court in these matters.
- Paragraph 42 correctly places on NHAI the burden to show that the land is within 50 metres of the highway, but the additional burden of disproving commercial potentiality should rest on the land owner, not on the acquiring authority. The applicants relied on the Punjab & Haryana High Court judgment dated 28 March 2008 in C.W.P. No. 11461 of 2005 to support this position.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Punjab & Haryana High Court, Judgment & Order dated 28 March 2008 in C.W.P. No. 11461 of 2005 | Illustrated that Section 23(1A) was not in issue in comparable proceedings. | Used to substantiate the applicants’ assertion that inclusion of Section 23(1A) in the Supreme Court’s paragraph 41 was erroneous. |
Court's Reasoning and Analysis
The Court addressed each contention in turn:
- Deletion of “(1A) and” in Paragraph 41: The Court agreed that Section 23(1A) was never part of the record before any authority in these cases. Consequently, the phrase “(1A) and” in paragraph 41 of the 19 September 2019 judgment was deleted.
- Clarification of Burden of Proof in Paragraph 42: The Court clarified that its earlier observation placing on NHAI the burden to establish both proximity to the highway and lack of commercial potentiality was confined to the specific factual matrix of those appeals. It was not intended to lay down a universal rule of law regarding burden of proof in land-acquisition cases.
Holding and Implications
The miscellaneous application was DISPOSED OF with the two textual modifications described above.
Immediate effect: Paragraph 41 of the 19 September 2019 judgment now omits reference to Section 23(1A), and paragraph 42 is expressly limited to the facts of that case. Broader implications are minimal; the order corrects the earlier judgment for accuracy and restricts an interpretive statement on burden of proof, without establishing a new legal precedent.
1. Sh. Shyam Divan, learned senior counsel appearing on behalf of the applicant(s), seeks a clarification of our Judgment dated 19.09.2019 in two aspects. First, he points out that in Paragraph 41 of our Judgment, we have included Section 23(1A) as well, when Section 23(1A) was not present before any authority or the Court on the facts of these cases.
2. He has also shown us the Judgment and Order dated 28.03.2008 passed by the High Court of Punjab and Haryana in Civil Writ Petition No. 11461 of 2005 to buttress this submission.
3. Since this plea is correct, we delete the expression “(1A) and” occurring in Paragraph 41 (Page 76 of the paperbook) for the reason given above.
4. Second, Sh. Shyam Divan points to Paragraph 42 and the sentence reading, “The burden to prove that the land in question is within 50m of the National Highway, and that it does not have commercial potentiality, is on the NHAI but, on facts, has never been discharged.” According to him, the burden to prove that the land in question is within 50m of the National Highway, is correctly on the NHAI, but whether it does or does not have commercial potentiality, ought to be on the person whose land is acquired. We may indicate that it was only on the facts of those cases that it was held that the burden, in the facts of those cases, as to commercial potentiality, is placed on the NHAI. This is not a general statement of the law, as is clear from Paragraph 42.
5. With these two modifications, the misc. application is disposed of.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
MISCELLANEOUS APPLICATION DIARY NO. 2572 OF 2020
CIVIL APPEAL NO. 7086 OF 2019
National Highway Authority of India and Another.….Petitioner(s)
Versus
Tehal Singh and Others.….Respondent(s)
(IA No. 34072/2021 - INTERVENTION/IMPLEADMENT)
(IA No. 12025/2020 - MODIFICATION OF COURT ORDER)
Date : 30-07-2021 These matter was called on for hearing today.
(Before R.F. Nariman and B.R. Gavai, JJ.)
For Petitioner(s) Mr. Shyam Divan, Sr. Adv.
Mr. Alok Sangwan, Adv.
Mr. Raghujeet Madan, Adv.
Mr. Sumit Kumar Sharma, Adv.
Mr. Anurag Kulharia, Adv.
Mr. Sandeep, Adv.
Mr. Krishan Yadav, Adv.
Mr. Devashish Bharuka, AOR
For Respondent(s) Mr. Zulfiker Ali P.S, AOR
Mr. Faisal M. Aboobacker, Adv.
Mr. Augustine Peter, Adv.
Ms. Lakshmi Sree P., Adv.
Ms. Sadiya Shakeel, Adv.
Mr. Somiran Sharma, AOR
UPON hearing the counsel the Court made the following
6. The Misc. Application is disposed of in terms of the signed order.
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