Nareshbhai Bhagubhai vs Union Of India (Supreme Court)
The issue which remains to be decided is that in the absence of an order passed on the objections under Section 20D, should the consequential steps be invalidated.
We find that the challenge before this Court has been made by the Appellants with respect to a stretch of land admeasuring approximately 6 kms, out of the total stretch of 131 kms. The remaining stretch of land comprising of 125 kms has been acquired, and stands vested in the Government. The Respondents have stated on Affidavit that preconstruction activity and earth work has been completed on most parts of the stretch. Furthermore, most of the bridges are either in progress, or have already been completed.
The Senior Counsel representing the Appellants in all the present Civil Appeals, after taking instructions from his clients, submitted that since the land was being acquired for a public utility project, his clients would be satisfied if they were granted compensation by awarding the current rate for acquisition of land.
Admittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, Gujarat.
In these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action.
In the present case, the relief is being moulded by granting compensation to the Appellants, to be assessed under Section 20G of the said Act as per the current market value of the land. The Competent Authority is directed to compute the amount of compensation on the basis of the current market value of the land, which may be determined with reference to Section 20G(2) of the Act.
FULL TEXT OF THE SUPREME COURT JUDGEMENT
1. The present Civil Appeals have been filed to challenge the Final Judgment and Order dated 25.07.20 18 passed by the Gujarat High Court, whereby the Special Civil Application 19409 of 2015, 12711 of 2016, 14000 of 2016, and 14001 of 2016 have been dismissed.
2. Since a common issue arises in all 4 Civil Appeals, they are being disposed of by the present common Judgment and Order.
The factual matrix in which the present Civil Appeals have been filed is as under:
3.1. On 08.02.2011, a Notification was issued under Section 20A of the Railways Act, 1989 [hereinafter referred to as “the said Act”] by the Ministry of Railways notifying its intention to acquire the lands specified in 18 Villages, situated in District Surat, Gujarat for the public purpose of construction of the Western Dedicated Freight Corridor.
The total land under acquisition was a stretch of 131 kms. The land owned by the Appellants, comprising of approximately 6 kms, was included under the Notification.
3.2. The Appellants along with other land-owners filed written Objections between 06.04.2011 and 07.04.2011 under Section 20D(1) of the Act before the Competent Authority/ Special Land Acquisition Officer, Surat [hereinafter referred to as “the Competent Authority”], Surat to challenge the proposed acquisition.
3.3. The Competent Authority vide letter dated 15.07.2011, informed the land-owners that the acquisition was for a necessary public purpose i.e. the development of the Western Dedicated Freight Corridor. It was stated that compensation would be paid to all affected land-owners in accordance with Sections 20F and 20G of the Railways Act, 1989.
The land-owners were asked to remain present with necessary proofs at the time of personal hearing, the date of which would be intimated to them.
3.4. The Competent Authority vide letter dated 19.07.2011, directed the land-owners to appear for a personal hearing on the Objections on 30.07.2011.
3.5. The land-owners appeared before the Competent Authority on 30.07.2011 for personal hearing, and submitted further written Objections on 31.07.2011. 3.6. The Competent Authority submitted its Report to the Central Government under Section 20E(1) of the Act on 03.01.2012.
On 06.02.20 12, the Ministry of Railways issued a Notification under Section 20E(1) of the Railways Act, 1989 stating that 59 Objections had been received in respect of the proposed acquisition, which had been considered and disallowed by the Competent Authority.
3.7. On 06.02.2013 and 07.02.2013, Awards were passed by the Competent Authority under Section 20F of the Railways Act, 1989.
3.8. On 13.08.20 13, Shri Ghanshyamsinh Gambhirsinh Vashi, a landowner, filed an RTI Application before the Competent Authority seeking a certified copy of the Order passed on the Objections filed by the land‑owners.
3.9. The Competent Authority replied to the said RTI Application on 05.09.20 13, and stated that the reply to the Objections raised by the land owners had already been communicated vide letter dated 15.07.2011.
3.10. The Appellants herein challenged the acquisition proceedings by filing Special Civil Application Nos. 19409 of 2015, 12711 of 2016, 14000 of 2016, and 14001 of 2016 before the Gujarat High Court.
The principal ground of challenge raised by the Appellants was that no Order had been passed on the Objections in accordance with Section 20D(2) of the said Act.
The Appellants prayed for quashing and setting aside the Notification issued under Section 20A on 08.02.2011, and the Declaration issued under Section 20E on 06.02.20 12.
3.11. During the pendency of the proceedings, the High Court vide Interim Order dated 12.07.2018, directed the Respondents to file an Affidavit giving specific details pertaining to the disposal of the Objections after personal hearing was granted on 30.07.2011.
3.12. The Chief Project Manager, Dedicated Freight Corridor Corporation of India Limited filed Affidavit dated 17.07.2018 on behalf of the Respondents before the High Court, wherein it was stated that:
“4. I state that the clarification/reply given vide letter dated 15/7/2011 does not indicate the decision/order/predetermination of the Competent Authority. The Competent Authority has merely clarified the purpose of acquisition and provision of Railway Amendment Act 2008 to be considered while awarding compensation. On the contrary, in the said letter dated 15/7/2011, the Competent Authority has clearly informed the objector to remain present with all the relevant documents on a date which was to be intimated later.
…
8. I state that the Competent Authority, after hearing all the objectors of land under acquisition, has passed two orders dated 28//11/2011 and 3/1/2012 disallowing all the objections raised by the objectors in public interest. Annexed hereto and marked as Annexure VI Colly. Are the copies of the orders dated 28/11/2011 as well as 3/1/2012.”
3.13. The High Court vide Final Judgment and Order dated 25.07.20 18 dismissed the Special Civil Applications filed by the Appellants.
The Court took the view that in matters involving highly technical and scientific fields, courts would be extremely slow in overruling the decision taken by the Government after due deliberation. Unless it was pointed out that relevant considerations were not properly weighed, or that the decision was blatantly malafide, courts would not attempt to substitute their understanding of such complex subjects for that of the Government. The Appellants failed to produce any material to support their objection that the proposed railway line was not advisable.
It was, however, held that Section 20D of the Act confers a valuable right on a person interested in the land under acquisition, to raise objections, and be heard on such objections. The objections raised by a person interested have to be considered and disposed of, after a hearing is given by the competent authority. If the objections received by persons interested have not been disallowed by the competent authority, it would not be open for the Central Government to proceed to issue the Declaration under Section 20E(1) of the Act.
The High Court recorded its concern about the manner in which the entire matter was dealt with by the Respondents. The land-owners were informed that their objections were not valid even prior to the personal hearing took place.
After the personal hearing took place on 30.07.2011, the Competent Authority disposed of the objections on the office file, but never conveyed the decision to the objectors. The Competent Authority had not fulfilled the important stage of disposal of the objections prior to the Declaration being issued under Section 20E.
It was further observed that the Competent Authority gave a completely wrong reply to the RTI Application filed by the land-owners. This was an act of utter carelessness which had serious ramifications.
The Competent Authority vide Report dated 03.01.2012, informed the Chief Project Manager, Dedicated Freight Corridor Corporation of India Limited that all the Objections raised by the Appellants were heard at length, and orally answered.
The Special Civil Applications were dismissed by the High Court, and the Competent Authority was directed to pay Costs of Rs. 50,000/ in each of the Special Civil Applications.
3.14. Aggrieved by the aforesaid Judgment, the Appellant – Land-owners filed the present Civil Appeals.
4. We have heard the learned Counsel for the parties, and perused the pleadings and written submissions filed by the
5. C. A. Sundaram, Senior Counsel appearing for the Appellants inter alia submitted that:
5.1. The Objections raised by the Appellants were not decided in accordance with the provisions of Section 20D(2) of the Act. The non-compliance of the same would render the entire acquisition proceedings null and void.
5.2. It was further submitted that the Reply dated 05.09.20 13 given by the Respondents to the RTI Application filed by the land-owners, clearly showed that there was no application of mind on the part of the Respondents. The said Reply simply stated that the Order disposing of the Objections raised by the land owners had already been communicated to them on 15.07.2011.
5.3. The letter dated 15.07.2011 cannot be construed to be an Order as contemplated by Section 20D(2) of the Act, since it was issued prior to the personal hearing which took place on 30.07.2011, and filing of the final objections on 31.07.2011.
5.4. The letter dated 15.07.2011 was not an Order, but merely a direction to the Appellants to remain present with necessary proofs and documents at a time and date which would be subsequently intimated.
5.5. It was submitted that even though the land-owners were granted a personal hearing, there was no order passed either allowing or disallowing the objections as per the mandate of S. 20 D(2) of the Act.
5.6. The orders dated 28.11.2011 and 03.01.2012 were not communicated to the land-owners. They were merely notations made on the internal files of the Competent Authority.
The rejection of the Objections vide an endorsement or file noting would not constitute an order in the eyes of the law. An order passed by a statutory authority must be a speaking order supported by cogent reasons, which is required to be communicated to the objectors.
6. Mr. Sanjay Jain, Additional Solicitor General appearing for the Union of India inter alia submitted that:
6.1. The land acquisition proceedings in the present case have been undertaken in compliance with Chapter IV A of the Railways Act, 1989.
6.2. Chapter IV A of the Railways Act, 1989 is a self-contained code. The Court should not resort to, or seek the aid of the Land Acquisition Act, 1894 to interpret the provisions of the Railways Act, particularly since Section 20N of the Act makes the provisions of the Land Acquisition Act, 1894 inapplicable to acquisitions under the Railways Act.
6.3. The process for filing objections under Section 20D(2) of the Act is two fold. First, the Competent Authority permits objections to be filed within 30 days of the publication of the Notification under Section 20A by the Central Government notifying its intention to acquire land.
Thereafter, the Competent Authority has the discretion to call for a personal hearing in order to conduct a further enquiry if deemed necessary.
6.4. In the present case, the Objections raised by the Appellants were received in writing on 06.04.2011. The Competent Authority after considering the said Objections, passed an Order on 15.07.2011 which was communicated to each of the Appellants. Thereafter, personal hearing was granted on 30.07.2011, which was in the nature of a further enquiry.
The Objections raised by the Appellants in the personal hearing on 30.07.2011 were almost identical to those raised earlier on 06.04.2011. The Objections raised by the Appellants had effectively been dealt with vide letter dated 15.07.2011, which was communicated to each of the Appellants.
6.5. It was further submitted that no order was required to be passed after the personal hearing dated 30.07.2011, because no fresh material came on record.
7. The issues which arise for our consideration are:
i) Whether the provisions of Section 20D(2) have not been complied with by the Competent Authority in the present case?
ii) If so, what would be the consequences of the non‑compliance of Section 20D(2) with respect to the acquisition proceedings, and the rights of the Appellants?
8. Relevant Statutory Provisions
To determine the issues raised by the Appellants in the present proceedings, the statutory provisions of the Railways Act, 1989 as amended in 2008, would require to be considered.
The statutory provisions for acquisition of land for a Special Railway Project are contained in Chapter IV A of the Railways Act, 1989. Chapter IV A is a complete self-contained code for the acquisition of land.
Chapter IV A was incorporated vide Amendment Act 11 of 2008. The Statement of Objects and Reasons of the Railways (Amendment) Act, 2008 states that:
“2. There is a need to provide for land acquisition provisions in the Railways Act, 1989 to empower the Central Government in the Ministry of Railways for land acquisition on fast track basis for the special railway projects on the lines of the land acquisition provisions available in the National Highways Act, 1956.”
Chapter IV A comprises of Section 20A to 20P of the amended Act. The relevant provisions under Chapter IV A are set out hereinbelow for ready reference :
“20A. Power to acquire land, etc.
(1) Where the Central Government is satisfied thatfor a public purpose any land is requiredfor execution of a special railway project, it may, by notification, declare its intention to acquire such
(2) Every notification under subsection (1), shall give a brief description of the land and of the special railway project for which the land is intended to be acquired.
(3) The State Government or the Union territory, as the case may be, shall for the purposes of this section, provide the details of the land records to the competent authority, whenever required.
(4) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which shall be in a vernacular language.
20D. Hearing of objections, etc.
(1) Any person interested in the land may, within a period of thirty days from the date of publication of the notification under sub-section of section 20A, object to the acquisition of land for the purpose mentioned in that sub-Section.
(2) Every objection under sub-section (1), shall be made to the competent authority in writing, and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Explanation. For the purposes of this sub-section, “legal practitioner” has the same meaning as in clause (1) of sub-section (1) of section 2 of the Advocates Act, 1961(25 of 1961).
(3) Any order made by the competent authority under sub-section (2) shall be final.
20E. Declaration of acquisition
(1) Where no objection under sub-section (1) of section 20D has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification, that the land should be acquired for the purpose mentioned in subsection (1) of section 20A.
(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under subsection (1) of section 20A for its acquisition, but no declaration under sub-section (1) of this section has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 20A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other
20G. Criterion for determination of market value of land
(1) The competent authority shall adopt the following criteria in assessing and determining the marketvalue of the land,‑
(i) the minimum land value, if any, specified in the Indian Stamp Act, 1899(2 of 1899), for the registration of sale deeds in the area, where the land is situated; or
(ii) the average of the sale price for similar type of land situated in the village or vicinity, ascertained from not less than fifty per cent, of the sale deeds registered during the preceding three years, where higher price has been paid, whichever is higher.
(2) Where the provisions of subsection (1) are not applicable for the reason that:‑
(i) the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or
(ii) the registered sale deeds for similar land as mentioned in clause (i) of subsection (1) are not available for the preceding three years; or
(iii) the minimum land value has not been specified under the Indian Stamp Act, 1899(2 of 1899) by the appropriate authority, the concerned State Government shall specify the floor price per unit area of the said land based on the average higher prices paid for similar type of land situated in the adjoining areas or vicinity, ascertained from not less than fifty per cent, of the sale deeds registered during the preceding three years where higher price has been paid, and the competent authority may calculate the value of the land accordingly.
(3) The competent authority shall, before assessing and determining the marketvalue of the land being acquired under this Act,
(a) ascertain the intended land use category of such land; and
(b) take into account the value of the land of the intended category in the adjoining areas or vicinity, for the purpose of determination of the marketvalue of the land being acquired.
(4) In determining the market value of the building and other immovable property or assets attached to the land or building which are to be acquired, the competent authority may use the services of a competent engineer or any other specialist in the relevant field, as may be considered necessary by the competent authority.
(5) The competent authority may, for the purpose of determining the value of trees and plants, use the services of experienced persons in the field of agriculture, forestry, horticulture, sericulture, or any other field, as may be considered necessary by him.
(6) For the purpose of assessing the value of the standing crops damaged during the process of land acquisition proceedings, the competent authority may utilise the services of experienced persons in the field of agriculture as he considers necessary.
20I. Power to take possession
(1) Where any land has vested in the Central Government under subsection (2) of section 20E, and the amount determined by the competent authority under section 20F with respect to such authority by the Central Government, the competent authority may, by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within a period of sixty days of the service of the notice.
(2) If any person refuses or fails to comply with any direction made under subsection (1), the competent authority shall apply—
(a) In case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;
(b) In case of any land situated in any area other than the area referred to in clause (a), to the Collector of a district,
And such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it.
20J. Right to enter into land where land has vested in Central Government
Where the land has vested in the Central Government under section 20E, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upo0n the land for carrying out the building, maintenance, management or operation of the special railway project or part thereof or nay other work connected therewith.
20N. Land Acquisition Act 1 of 1894 not to apply
Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act.”
9. The scheme of Chapter IV A is as follows:
i) The Central Government is empowered under Section 20A to issue a preliminary Notification, notifying its intention to acquire land for a public purpose required for the execution of a special railway project.
ii) Section 20D provides for filing of objections and grant of personal hearing. The provision is in two parts:
a) Sub-section (1) states that any person interested in the land, may within a period of 30 days from the date of publication of the notification under sub-section (1) of Section 20A, file objections to the acquisition of land for the purpose mentioned in that sub-section.
b) Under sub-section (2) of Section 20D, the mandate of the statute is that:
