Karnataka High Court
Shri Manohar Patel R vs Union Of India on 19 July, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 10103 of 2020
C/W WP No. 12483 of 2020
WP No. 12537 of 2020
WP No. 14110 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2022
BEFORE
®
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 10103 OF 2020 (LA-RES)
C/W
WRIT PETITION NO. 12483 OF 2020
WRIT PETITION NO. 12537 OF 2020
WRIT PETITION NO. 14110 OF 2021
IN W.P. NO.10103/2020
BETWEEN:
1. SHRI. MANOHAR PATEL.R
AGED ABOUT 46 YEARS
S/O RAMU.R @ V.R. RAMANNA
RESIDING AT 3RD MAIN, VALAGERE HALLI
RANGAPPA LAYOUT, BEHIND SHANKAR NAGAR
TIPTUR-572202, TUMKUR DISTRICT
2. MOHAN PATEL
AGED ABOUT 44 YEARS
Digitally signed by S/O RAMU.R @ V.R. RAMANNA
POORNIMA
SHIVANNA RESIDING AT 3RD MAIN
Location: HIGH VALAGERE HALLI, RANGAPPA LAYOUT
COURT OF
KARNATAKA BEHIND SHANKAR NAGAR
TIPTUR-572202, TUMKUR DISTRICT
...PETITIONERS
(BY SRI. CLIFTON D. ROZARIO, ADVOCATE AND
SMT. MAITREYI KRISHNAN, ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF ROAD TRANSPORT & HIGHWAYS
NEW DELHI-110001
REP. BY ITS SECRETARY
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WP No. 10103 of 2020
C/W WP No. 12483 of 2020
WP No. 12537 of 2020
WP No. 14110 of 2021
2. STATE OF KARNATAKA
VIDHANA SOUDHA
BENGALURU-560001
REP. BY ITS CHIEF SECRETARY
3. SPECIAL LAND ACQUISITION OFFICER
NATIONAL HIGHWAYS AUTHORITY OF INDIA
TUMKUR-HONNAVARA (NH-206)
NATIONAL HIGHWAYS, PWD CAMPUS
K.R.CIRCLE, BENGALURU-560001
... RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R2;
SRI. THIMMANNA BHAT, CGC FOR R1;
SRI. UDAYA HOLLA, SR. COUNSEL FOR
SRI. SREENATH.V.K, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE
WRIT, ORDER OR DIRECTION IN THE NATURE OF MANDAMUS
DIRECTING THE 3RD RESPONDENT TO COMPLY WITH THE
PROVISIONS OF THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND
RESETTLEMENT ACT, 2013 INSOFAR AS THE REHABILITATION AND
RESETTLEMENT ENTITLEMENTS OF THE PETITIONERS INCLUDING
THE FIRST, SECOND AND THIRD SCHEDULE AND ETC.
*****
IN W.P. NO.12483 OF 2020
BETWEEN:
1. SHRI. B. LOKESH
AGED ABOUT 37 YEARS
S/O G. BHYRAPPA
R/AT BAIRANAYAKANAHALLI
AT POST TIPTUR TALUK
TIPTUR-572201
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WP No. 12537 of 2020
WP No. 14110 of 2021
2. SMT. KALAMMA
AGED ABOUT 70 YEARS
W/O LATE CHANNABASAPPA
RESIDING AT NO.84
BAIRANAYAKANAHALLI
HONNAVALLI HOBLI, TIPTUR TALUK
TUMKUR, KARNATAKA-572201
3. SHRI. B.G. VIRUPAKSHAPPA
AGED ABOUT 63 YEARS
S/O LATE GURUBASAPPA
RESIDING AT NO.83
BAIRANAYAKANAHALLI
HONNAVALLI HOBLI, TIPTUR TALUK
TUMKUR, KARNATAKA-572201
4. SMT. PARVATHAMMA.H.P
AGED ABOUT 66 YEARS
W/O LATE BAIRAPPA.G
RESIDING AT NO.83-1
BAIRANAYAKANAHALLI
HONNAVALLI HOBLI, TIPTUR TALUK
TUMKUR, KARNATAKA-572201
...PETITIONERS
(BY SRI. CLIFTON D. ROZARIO, ADVOCATE AND
SMT. AVANI CHOKSHI, ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS
REP. BY ITS SECRETARY
NEW DELHI-110 001
2. STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
VIDHANA SOUDHA, BENGALURU-560001
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C/W WP No. 12483 of 2020
WP No. 12537 of 2020
WP No. 14110 of 2021
3. SPECIAL LAND ACQUISITION OFFICER
NATIONAL HIGHWAYS AUTHORITY OF INDIA
TUMAKURU-HONNAVARA (NH-206)
NATIONAL HIGHWAYS PWD CAMPUS
K.R. CIRCLE, BENGALURU-560 001
... RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R2;
SRI. THIMMANNA BHAT, CGC FOR R1;
SRI. UDAYA HOLLA, SR. COUNSEL FOR
SRI. SREENATH.V.K, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN
APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE OF
MANDAMUS DIRECTING THE 3RD RESPONDENT TO COMPLY
WITH THE PROVISIONS OF THE RIGHT TO FAIR
COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013 INSOFAR AS
THE REHABILITATION AND RESETTLEMENT ENTITLEMENTS OF
THE PETITIONERS INCLUDING THE FIRST, SECOND AND THIRD
SCHEDULE AND ETC.
*****
IN WP NO.12537 OF 2020
BETWEEN:
SHRI. BASAVARAJU.B.G.
AGED ABOUT 61 YEARS
S/O LATE GURUBASAPPA
R/AT NO.82, BAIRANAYAKANAHALLI
AT POST HONNAVALLI HOBLI
TIPTUR TALUK, TUMKUR
KARNATAKA-572201
...PETITIONER
(BY SRI. CLIFTON D. ROZARIO, ADVOCATE AND
SMT. AVANI CHOKSHI, ADVOCATE)
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WP No. 10103 of 2020
C/W WP No. 12483 of 2020
WP No. 12537 of 2020
WP No. 14110 of 2021
AND:
1. UNION OF INDIA
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS
NEW DELHI-110001
REP. BY ITS SECRETARY
2. STATE OF KARNATAKA
VIDHANA SOUDHA
BENGALURU-560001
REP. BY ITS CHIEF SECRETARY
3. SPECIAL LAND ACQUISITION OFFICER
NATIONAL HIGHWAYS AUTHORITY OF INDIA
TUMAKURU-HONNAVARA (NH-206)
NATIONAL HIGHWAYS PWD CAMPUS
K.R.CIRCLE, BENGALURU-560001
... RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R2;
SRI. THIMMANNA BHAT, CGC FOR R1;
SRI. UDAYA HOLLA, SR. COUNSEL FOR
SRI. SREENATH.V.K, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE
WRIT, ORDER OR DIRECTION IN THE NATURE OF MANDAMUS
DIRECTING THE 3RD RESPONDENT TO COMPLY WITH THE
PROVISIONS OF THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND
RESETTLEMENT ACT, 2013 INSOFAR AS THE REHABILITATION AND
RESETTLEMENT ENTITLEMENTS OF THE PETITIONERS INCLUDING
THE FIRST, SECOND AND THIRD SCHEDULE AND ETC.
*****
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WP No. 10103 of 2020
C/W WP No. 12483 of 2020
WP No. 12537 of 2020
WP No. 14110 of 2021
IN W.P. NO.14110 OF 2021
BETWEEN:
SHRI. T.P. SHANKARAIAH
AGED ABOUT 68 YEARS
S/O PUTTAIAH
R/AT THIMLAPURA
KIBBANAHALLI, TUMKUR
KARNATAKA-572114
...PETITIONER
(BY SRI. CLIFTON D. ROZARIO, ADVOCATE AND
SMT. AVANI CHOKSHI, ADVOCATES)
AND:
1. UNION OF INDIA
MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS
NEW DELHI-110 001
REP. BY ITS SECRETARY
2. STATE OF KARNATAKA
VIDHANA SOUDAH
BENGALURU-560 001
REP. BY ITS CHIEF SECRETARY
3. SPECIAL LAND ACQUISITION OFFICER
AND APPROPRIATE AUTHORITY
NATIONAL HIGHWAYS AUTHORITY
OF INDIA, TUMAKURU-SHIVAMOGGA
PACKAGE-I (NH-206)
TUMKUR UNIT, BETTASHRI COMPLEX
ABOVE RENUKA SUPER BAZAAR
5TH CROSS, 60FT. ROAD
SAPTHAGIRI EXTION
TUMKUR, KARNATAKA-572102
... RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R2;
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C/W WP No. 12483 of 2020
WP No. 12537 of 2020
WP No. 14110 of 2021
SRI. THIMMANNA BHAT, CGC FOR R1;
SRI. UDAYA HOLLA, SR. COUNSEL FOR
SRI. SREENATH.V.K, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, ISSUE AN APPROPRIATE WRIT, ORDER OR
DIRECTION IN THE NATURE OF MANDAMUS DIRECTING THE 3RD
RESPONDENT TO COMPLY WITH THE PROVISIONS OF THE RIGHT TO
FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013 INSOFAR AS THE
REHABILITATION AND RESETTLEMENT ENTITLEMENTS OF THE
PETITIONERS INCLUDING THE FIRST AND SECOND SCHEDULE AND
ETC.
*****
THESE WRIT PETITIONS COMING ON FOR FURTHER HEARING
AND HAVING BEEN RESERVED FOR ORDERS ON 20.6.2022, THIS
DAY, THE COURT PRONOUNCE THE FOLLOWING:
ORDER
IN W.P. No.10103/2020:
1. The petitioners are before this Court seeking for the following reliefs:
a. Issue an appropriate writ, order or direction in the nature of mandamus directing the 3rd Respondent to comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioners including the First, Second and Third Schedule.
b. Issue an appropriate writ, order or direction to the 2nd Respondent to suspend the operation of the -8- WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021 Revised Award Notices dates 24.06.2020 (placed as Annexures J1-J8), the Award dated 26.12.2018 (placed as Annexure-H), dated 26.12.2018, the Official Reminder dated 30.06.2020 (placed as Annexure-P), and Official Reminders dated
02.07.2020 (placed as Annexure-Q1 to Q7), until the respondents comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioners including the First, Second and Third Schedule.
c. Issue an appropriate writ, order or direction prohibiting the 1st Respondents from taking possession of the land until the full payment to the petitioners, of the monetary part of the rehabilitation and resettlement entitlements as per the First, Second and Third Schedule of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
d. Pass any other orders within the facts and circumstances of the case in the interest of justice and equity including orders regarding compensation.
2. Petitioners are brothers claiming to be the owners of land in Sy.No.144/3, 144/4 and 145/3, 145/4, 145/5, 145/6, 145/7 measuring 1.482 Acres and Sy.No.146 measuring 3 acres 10 guntas, out of the said lands respondent No.1 acquired the following land:
-9- WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Sl.No. Survey Total land owned by Proposed Balance land no. the petitioner acquisition left with the petitioner 1 144/3 9.04 G/919.37 sq mts 304 sq. m. 615.37 sqmts 2 144/4 9.04 G/919.37 sq mts 51 sq. m. 888.37 sqmts 3 145/3 8.04 G/813.42 sq mts 405 sq. m. 408.41 sqmts 4 145/4 8.04 G/813.42 sq mts 607 sq. m. 206.41 sqmts 5 145/5 9.04 G/919.37 sq mts 936 sq. m. Nil 6 145/6 8.04 G/813.42 sq mts 835 sq. m. Nil 7 145/7 8.04 G/813.42 sq mts 705 sq. m. 408.40 sqmts 3A10G/13,152.1 sq 8 146 7386 sq. m. 5766.1 sqmts mts WP No.12483/2020:
3. The petitioners are before this Court seeking for the following reliefs:
1. Issue an appropriate writ, order or direction in the nature of mandamus directing the 3rd Respondent to comply with the provisions of the Right to Fair
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Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioners including the First, Second and Third Schedule.
2. Issue an appropriate writ, order or direction to the 2nd Respondent to suspend the operation of the Award Notices No.SLAO&CA/TS-206/CR/14/2018- 19 dated 25.03.2019 (placed as Annexures N1, N2 and N3), the Award no.SLAO/CA/NH- 206/AWD/CR-14/2018-19 dated 26.12.2018 (placed as Annexure-K), the Official Reminder no.SLAO/LAQ/TIP/14/2019-20 dated 20.01.2020 (placed as Annexure-Q), the Official Reminder no.SLAO/LAQ/NH-206/Bairanayakanahalli/2020-21 dated 30.06.2020 (Placed as Annexure-S), and the Official Reminder no.SLAO/LAQ/NH- 206/Bairanayakanahalli/2020-21 dated 04.08.2020 (placed as Annexure-T) until the respondents comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioners including the First and Second Schedule.
3. Issue an appropriate writ, order or direction prohibiting the 1st Respondent from taking possession of the land until the full payment to the Petitioners, of the monetary part of the rehabilitation and resettlement entitlements as per the First and Second Schedule of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
4. Pass any other orders within the facts and circumstances of the case in the interest of justice and equity including orders regarding compensation.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 20214. Petitioners claim to be the owners of land in Sy.No.141/1 measuring 2 acres, 52/5A measuring 20 guntas, 52/5A measuring 15.08 guntas, 52/5B measuring 7.08 guntas and sy.No.143 measuring 3 acres, situated at Bairanayakanahalli village, Tiptur taluk, Tumkur District, out of the said lands respondent No.1 acquired the following land:
Sl. Survey Owned Total land Proposed Balance by owned by the acquisition land left No. no. petitioner with the petitioner Petitioner 80 G/8093.6 5058.6 1 141/1 3035 sq. m.
No.1 sq. m. sq. m.
Petitioner 20 G/2023.4
2 52/5A 2020 sq.m. 3.4 sq. m.
No.2 sq.m.
Petitioner 15.08 G/1525.6
3 52/5A 606 sq. m. 919.6 sq.m.
No.3 sq. m.
Petitioner 7.08 G/716.28 156.28
4 52/5B 560 sq. m.
No.3 sq. m. sq.m.
Petitioner 40 G/4046.8 1509.8
5 143/2 2537 sq. m.
No.4 sq.m. sq. m.
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WP No. 10103 of 2020
C/W WP No. 12483 of 2020
WP No. 12537 of 2020
WP No. 14110 of 2021
WP No.12537/2020:
5. The petitioner is before this Court seeking for the following reliefs:
1. Issue an appropriate writ, order or direction in the nature of mandamus directing the 3rd Respondent to comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioners including the First, Second and Third Schedule.
2. Issue an appropriate writ, order or direction to the 2nd Respondent to suspend the operation of the Award Notices dated 25.03.2019 (placed as Annexures-J and K), the Award dated 26.12.2018 (placed as Annexure-H), the Official Reminder dated 23.06.2020 and Official Reminder (Supplementary Award) dated 25.08.2020 (placed as Annexures-N and P respectively), the Official Reminder dated 30.06.2020 (placed as Annexure -
Q) and Official Reminder (Supplementary Award) dated 15.09.2020 (placed as Annexure-R), until the respondents comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioner including the First and Second Schedule.
3. Issue an appropriate writ, order or direction prohibiting the 1st Respondents from taking possession of the land until the full payment to the petitioner, of the monetary part of the rehabilitation and resettlement entitlements as per the First and Second Schedule of the Right to Fair Compensation and Transparency in Land
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Acquisition, Rehabilitation and Resettlement Act, 2013.
4. Pass any other orders within the facts and circumstances of the case in the interest of justice and equity including orders regarding compensation
6. Petitioner claims to be the owner of land in Sy.No.140/4 measuring 20 guntas and Sy.No.141/2 measuring 1 acre, situated at Bairanayakanahalli village, Tiptur taluk, Tumkur District, out of the said lands respondent No.1 acquired the following land:
Sl. Survey Total land owned by Proposed Balance land the petitioner acquisition left with the No. no. petitioner 1 140/4 20 G/2023.4 sq.m. 700 sq.m. 1323.4 sq. m.
2 141/2 40 G/4046.8 sq.m. 2327 sq.m. 1719 sq.m WP No.14110/2021:
7. The petitioner is before this Court seeking for the following reliefs:
1. Issue an appropriate writ, order or direction in the nature of mandamus directing the 3rd Respondent to comply with the provisions of the Right to Fair
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Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioners including the First and Second Schedule.
2. Issue an appropriate writ, order or direction to the 2nd Respondent to suspend the operation of the Award Notice dated 02.01.2019 (placed as Annexure-L), the Award dated 24.09.2018 (placed as Annexure-K), the Official Reminder dated 27.04.2019 (placed as Annexure-P), and the Supplementary award Notice dated 12.11.2020 (placed as Annexure-Q) until the respondents comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 insofar as the rehabilitation and resettlement entitlements of the Petitioner including the First and Second Schedule.
3. Issue an appropriate writ, order or direction prohibiting the 1st Respondents from taking possession of the land until the full payment to the Petitioner, of the monetary part of the rehabilitation and resettlement entitlements as per the First and Second Schedule of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
4. Pass any other orders within the facts and circumstances of the case in the interest of justice and equity including orders regarding compensation.
8. Petitioner claims to be the owner of land in Sy.No.14 measuring 10 acres, situated at Bairanayakanahalli
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021village, Tiptur taluk, Tumkur District, out of the said lands respondent No.1 acquired the following land:
Survey Total land owned by the Proposed Balance land petitioner acquisition left with the no. petitioner 4047.50 14 10 Acres/40468.6 sq.m. 36421.1 sq.m.
sq.m.
9. In all the above matters it is contended that the land of the petitioners was being acquired for widening of the road without complying with the mandatory provisions of The Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 [for short 'LARR Act'].
Hence, the petitioners are before this Court seeking for the abovesaid reliefs.
10. Sri.Cliffton D.Rozario, learned counsel for the petitioners would submit that:
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10.1. In view of the order of the Ministry of Rural Development dated 28.08.2015 bearing No.S.O.2368(E), the provisions of the LARR Act of 2013 have been extended to cover acquisitions made under the statutes listed in the schedule-IV of the LARR Act since the National Highway Act, 1956 ( for short 'N.H. Act') is listed in the Schedule-IV, the LARR Act has been made applicable to the acquisitions made under N.H Act and therefore, any acquisition would have to comply with the requirements of the LARR Act;
10.2. The petitioners would be entitled to the benefits described in Schedule-I to III of the LARR Act and as such, the petitioners are entitled to both monetary compensation as also rehabilitation and resettlement entitlement under Schedule-II and III;
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202110.3. The petitioners would be entitled to a housing unit, land for land or an offer for developed land, employment for distressed family, transportation cost, loss on account of cattle shed, resettlement allowance, etc.;
10.4. All these aspects being the eligibility of a land loser on account of acquisition under N.H Act, it is required that before the acquisition is initiated, a rehabilitation and resettlement scheme is prepared in accordance with the LARR Act. A resettlement award contemplated under Section 31(1) is required to be passed and the procedure under Section 16(1) of LARR Act along with survey of the affected families is to be made by the Administrator for Rehabilitation and Resettlement appointed in terms of Section 43 of the LARR Act, in pursuance of which the draft scheme would
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021have to be prepared under Section 16(2) of LARR Act and finalized in terms of the following Section 16(3) to 16(6) LARR Act. It is thereafter that the draft Rehabilitation and Resettlement scheme is to be reviewed by the Collector with the Rehabilitation and Resettlement Committee at the project level constituted under Section 45 of LARR Act and then, the scheme be published in a local newspaper inviting objections, after considering the objections and conducting an enquiry, an award under Section 23 of the LARR Act is to be passed which would include a declaration of the Rehabilitation and Resettlement award. It is only thereafter that possession could be taken over. If the aforesaid requirements are not fulfilled including Rehabilitation and Resettlement under Sections 43 to 47 of the LARR Act, possession cannot be taken by the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021National Highway Authorities, any violation of the same would require this Court to pass necessary orders.
10.5. Though the petitioners have brought the above to the notice of the acquisition officials, no action has been taken. They have ignored the objections of the petitioners. There is no transparency in the acquisition process. What the Special Land Acquisition Officer (hereinafter for brevity referred to as "SLAO") has done is only to revise the monetary compensation, but the other benefits have not been provided.
Despite repeated requests, the petitioners have been told that at present only monetary compensation would be given and the other entitlements under Schedule-II and III would be considered thereafter. He submits that such a manner of acquisition is not contemplated
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021under the LARR Act. All the entitlements have to be given to the petitioners before proceeding to take over the possession.
10.6. When a statutory authority is required to do a thing in a particular manner, the act must be done in that manner or not at all. The Authorities having not passed an award in terms of LARR Act, there is violation of the LARR Act and therefore, the acquisition is required to be set-aside.
10.7. Learned counsel relies on the decisions of the Hon'ble Apex Court in:
10.7.1. Bhavnagar University v. Palitana Sugar Mill Pvt.Ltd. and Others reported in AIR 2003 SC 511, more particularly para 23, 26 and 40 which is reproduced hereunder for easy reference:
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23. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words.
Recourse to construction or
interpretation of statute is
necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant.
26. It is also well settled that a beneficent provision of legislation must be liberally construed so as to fulfil the statutory purpose and not to frustrate it.
40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all.
The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.
10.7.2. Dipak Babaria v. State of Gujurat and Ors reported in AIR 2014 SC 1792, more particularly para 61 which
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021is reproduced hereunder for easy reference:
61. Besides, the present case is clearly a case of dictation by the State Government to the Collector.
As observed by Wade and Forsyth in the 10th Edn. of Administrative Law:
"If the Minister's intervention is in fact the effective cause, and if the power to act belongs to a body which ought to act independently, the action taken is invalid on the ground of external dictation as well as on the obvious grounds of bad faith or abuse of power."
The observations by the learned authors to the same effect in the 7th Edn. were relied upon by a Bench of three Judges of this Court in Anirudhsinhji Karansinhji Jadeja v. State of Gujarat [(1995) 5 SCC 302 : 1995 SCC (Cri) 902] . In that matter the appellant was produced before the Executive Magistrate, Gondal, on the allegation that certain weapons were recovered from him. The provisions of TADA had been invoked. The appellant's application for bail was rejected. A specific point was taken that the DSP had not given prior approval and the invocation of TADA was non est. The DSP, instead of granting
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021prior approval, made a report to the Additional Chief Secretary, and asked for permission to proceed under TADA. The Court in paras 13, 14, 15 has held this to be a clear case of "dictation", and has referred to Wade and Forsyth on Surrender, Abdication and Dictation.
10.7.3. LARR Act has been introduced to make available fair compensation to land loser to bring about transparency in land acquisition, as also to provide for rehabilitation and resettlement to the land loser. All these aspects being applicable to N.H Act, the National Highways Authorities not having complied with these requirements, there is violation of Article 14 of the Constitution, thereby discriminating the petitioners from other land losers whose land have been acquired under the LARR Act, though the LARR Act has
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021been made applicable to acquisitions of land by N.H Act. In this regard, he relies upon the decision of the Apex Court in Union of India v. Tarseem Singh and Ors. reported in (2019) 9 SCC 304, more particularly para 29, 31, 41, 46, 47, 48 and 52 which are reproduced hereunder for easy reference:
29. Both, P. Vajravelu Mudaliar [P. Vajravelu Mudaliar v. LAO, (1965) 1 SCR 614 : AIR 1965 SC 1017] and Nagpur Improvement Trust [Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500] clinch the issue in favour of the respondents, as has been correctly held by the Punjab and Haryana High Court in Golden Iron and Steel Forging [Golden Iron and Steel Forging v. Union of India, 2008 SCC OnLine P&H 498 : (2011) 4 RCR (Civil) 375] . First and foremost, it is important to note that, as has been seen hereinabove, the object of the 1997 Amendment was to speed up the process of acquiring lands for National Highways. This object has been achieved in the manner set out
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hereinabove. It will be noticed that the awarding of solatium and interest has nothing to do with achieving this object, as it is nobody's case that land acquisition for the purpose of National Highways slows down as a result of award of solatium and interest. Thus, a classification made between different sets of landowners whose lands happen to be acquired for the purpose of National Highways and landowners whose lands are acquired for other public purposes has no rational relation to the object sought to be achieved by the Amendment Act i.e. speedy acquisition of lands for the purpose of National Highways. On this ground alone, the Amendment Act falls foul of Article 14.
31.Nagpur Improvement Trust [Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500] has clearly held that ordinarily a classification based on public purpose is not permissible under Article 14 for the purpose of determining compensation. Also, in para 30, the seven-Judge Bench unequivocally states that it is immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired, as, if the existence of these two Acts would enable the State to give one owner different treatment from another who is similarly situated, Article 14 would be infracted. In the facts of these cases, it is clear that from the point of view of
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021the landowner it is immaterial that his land is acquired under the National Highways Act and not the Land Acquisition Act, as solatium cannot be denied on account of this fact alone.
41. One more judgment needs to be referred to, namely, Girnar Traders (3) v. State of Maharashtra [Girnar Traders (3) v. State of Maharashtra, (2011) 3 SCC 1 : (2011) 1 SCC (Civ) 578] , which was relied upon by Shri Divan to argue that, like Chapter VII of the Maharashtra Regional and Town Planning Act, the amendment to the National Highways Act is a complete self-contained code and must, therefore, be followed on its own terms. This judgment dealt with whether Section 11-A introduced by the 1984 Amendment to the Land Acquisition Act could be said to apply to acquisitions made under the Maharashtra Regional Town Planning Act. The answer to this question was that Section 11-A could not be so applied as the Maharashtra Regional Town Planning Act referred to the Land Acquisition Act as legislation by way of incorporation and not legislation by way of reference. In the present case, the Land Acquisition Act, by virtue of Section 3-J of the National Highways Act, does not apply at all. The controversy in the present case does not, in any manner, involve whether the Land Acquisition Act applies by way of incorporation or reference. This case
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021is also, therefore, wholly distinguishable. Further, the "self- contained code" argument based on this judgment cannot be used as a discriminatory tool to deny benefits available to landowners merely because land has to be acquired under a different Act, as has been held in Nagpur Improvement Trust [Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500].
46. It is worthy of note that even in acquisitions that take place under the National Highways Act and the 1952 Act, the notification of 2015 under the new Acquisition Act of 2013 makes solatium and interest payable in cases covered by both Acts. In fact, with effect from 1-1-2015, Amendment Ordinance 9 of 2014 was promulgated amending the 2013 Act. Section 10 of the said Amendment Ordinance states as follows:
"10. In the principal Act, in Section 105--
(i) for sub-section (3), the following sub-section shall be substituted, namely--
'(3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1-1- 2015;'
(ii) sub-section (4) shall be omitted."
47. It is only when this Ordinance lapsed that the Notification dated 28-8- 2015 was then made under Section 113 of the 2013 Act. This notification is important and states as follows:
"ministry OF RURAL DEVELOPMENT order New Delhi, 28-8-2015 S.O. 2368(E).--Whereas, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) (hereinafter referred to as "the RFCTLARR Act") came into effect from 1- 1-2014;
And whereas, sub-section (3) of Section 105 of the RFCTLARR Act provided for issuing of notification to make the provisions of the Act relating to the determination of the compensation, rehabilitation and resettlement applicable to cases of land acquisition under the enactments specified in the Fourth Schedule to the RFCTLARR Act;
And whereas, the notification envisaged under sub-section (3) of Section 105 of
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the RFCTLARR Act was not issued, and the RFCTLARR (Amendment) Ordinance, 2014 (9 of 2014) was promulgated on 31-12-2014, thereby, inter alia, amending Section 105 of the RFCTLARR Act to extend the provisions of the Act relating to the determination of the compensation and rehabilitation and resettlement to cases of land acquisition under the enactments specified in the Fourth Schedule to the RFCTLARR Act;
And whereas, the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015) was promulgated on 3-4-2015 to give continuity to the provisions of the RFCTLARR (Amendment) Ordinance, 2014;
And whereas, the RFCTLARR (Amendment) Second Ordinance, 2015 (5 of 2015) was promulgated on 30-5-
2015 to give continuity to the provisions of the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015);
And whereas, the replacement Bill relating to the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015) was referred to the Joint Committee of the Houses for examination and report and the same is pending with the Joint Committee;
And whereas, as per the provisions of Article 123 of the Constitution, the RFCTLARR (Amendment) Second
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Ordinance, 2015 (5 of 2015) shall lapse on the 31st day of August, 2015 and thereby placing the landowners at the disadvantageous position, resulting in denial of benefits of enhanced compensation and rehabilitation and resettlement to the cases of land acquisition under the 13 Acts specified in the Fourth Schedule to the RFCTLARR Act as extended to the landowners under the said Ordinance;
And whereas, the Central Government considers it necessary to extend the benefits available to the landowners under the RFCTLARR Act to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule; and accordingly the Central Government keeping in view the aforesaid difficulties has decided to extend the beneficial advantage to the landowners and uniformly apply the beneficial provisions of the RFCTLARR Act, relating to the determination of compensation and rehabilitation and resettlement as were made applicable to cases of land acquisition under the said enactments in the interest of the landowners;
Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021the following Order to remove the aforesaid difficulties, namely:
1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.
(2) It shall come into force with effect from the 1st day of September, 2015.
2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act.
[F. No. 13011/01/2014-LRD] K.P. Krishnan, Addl. Secy."
48. It is thus clear that the Ordinance as well as the notification have applied the principle contained in Nagpur Improvement Trust [Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500] , as the Central Government has considered it necessary to extend the benefits
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021available to landowners generally under the 2013 Act to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule, the National Highways Act being one of the aforesaid enactments. This being the case, it is clear that the Government has itself accepted that the principle of Nagpur Improvement Trust [Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500] would apply to acquisitions which take place under the National Highways Act, and that solatium and interest would be payable under the 2013 Act to persons whose lands are acquired for the purpose of National Highways as they are similarly placed to those landowners whose lands have been acquired for other public purposes under the 2013 Act. This being the case, it is clear that even the Government is of the view that it is not possible to discriminate between landowners covered by the 2013 Act and landowners covered by the National Highways Act, when it comes to compensation to be paid for lands acquired under either of the enactments. The judgments delivered under the 1952 Act as well as the Defence of India Act, 1971, may, therefore, require a re-look in the light of this development. [ The Defence of India Act, 1971, was a temporary statute which remained in force only during the period of operation of a proclamation of emergency and for a
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021period of six months thereafter -- vide Section 1(3) of the Act. As this Act has since expired, it is not included in the Fourth Schedule of the 2013 Act.] In any case, as has been pointed out hereinabove, Chajju Ram [Union of India v. Chajju Ram, (2003) 5 SCC 568] , has been referred to a larger Bench. In this view of the matter, we are of the view that the view of the Punjab and Haryana High Court [Union of India v. Tarsem Singh, 2018 SCC OnLine P&H 6036] , [Jang Bahadur v. Union of India, 2018 SCC OnLine P&H 6034] , [Union of India v. Abhinav Cotspin Ltd., 2016 SCC OnLine P&H 19319] is correct, whereas the view of the Rajasthan High Court [Banshilal Samariya v. Union of India, 2005 SCC OnLine Raj 572 : 2005-06 Supp RLW 559] is not correct.
52. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Sections 23(1-A) and (2) and interest payable in terms of Section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3-J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, appeal arising out of SLP (C) No. 9599 of 2019 is dismissed.
10.8. Learned counsel firstly submits that there is no alternative remedy. Secondly, he submits that Even if approaching the Arbitrator in terms of Section 3-G(5) of N.H Act has to be considered to be an alternative remedy, the same is not an adequate or efficacious remedy and therefore, this Court would have to exercise jurisdiction in the present matter. In this regard he relies
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021upon the decision of the Hon'ble Apex Court in Maharashtra Chess Assn. v. Union of India, reported in (2020) 13 SCC 285, more particularly para 14, 19 and 23 which are reproduced hereunder for easy reference:
14. While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court's writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the court's decision to exercise or refuse to exercise its writ jurisdiction are self-imposed. It is a well-
settled principle that the writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution. [Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577]
19. This argument of the second respondent is misconceived. The existence of an alternate remedy, whether adequate or not, does not alter
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case.
23. This brings us to the question of whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction. As discussed above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute. [ "9. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."] In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021writ petition and make a determination on the facts and circumstances of each unique case.
10.9. Learned counsel submits that it is mandate under Article 301-A of the Constitution of India that no person shall be deprived of his property except in accordance with law. In the present case, the Authorities are not acting in terms of LARR Act, failure of such compliance would require this Court to issue necessary directions to the authorities concerned to comply with the requirements of LARR Act. In this regard, he relies upon the decision of the Hon'ble Apex Court in Hari Krishna Mandir Trust v. State of Maharashtra, reported in (2020) 9 SCC 356, more particularly para 96, 97, 99, 100 and 101 which are reproduced hereunder for easy reference:
96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300-A and a human right as observed by this Court in
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Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel [Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649, para 42] . In view of the mandate of Article 300-A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant Trust cannot be deprived of its property save in accordance with law.
97. Article 300-A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar v. Project Uchcha Vidya, Sikshak Sangh [State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545 at p. 574, para 69 :
2006 SCC (L&S) 355 : 5 SCEC 589] ; Jilubhai Nanbhai Khachar v. State of Gujarat [Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596] ; Bishambhar Dayal Chandra Mohan v. State of U.P. [Bishambhar Dayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39 : 1982 SCC (Cri) 53] , the State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders v. State of Maharashtra [Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, paras 55 and 56] .
99. In case of dispossession, except under the authority of law, the owner might obtain restoration of possession by a proceeding for mandamus against the Government as held by this Court in Wazir Chand v. State of H.P. [Wazir
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Chand v. State of H.P., AIR 1954 SC 415 : 1954 Cri LJ 1029] Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation (P) Ltd. v. State of Karnataka [K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414] , even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300-A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a landholder of his land, without compensation. Statutory authorities are bound to pay adequate compensation.
100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a writ of mandamus or in the nature of mandamus, but are duty-bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration.
101. In all such cases, the High Court must issue a writ of mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202110.10. Learned counsel submits that the Arbitrator under Section 3-G(5) of the N.H Act does not have jurisdiction to enquire into the entitlement of the petitioners under the LARR Act nor can the arbitrator discharge the function of an administrator, Review committee, etc. There are various checks and balances which have been put forth under the LARR Act requiring different Authorities to act at different points of time as regards the same acquisition. Thus, he submits that all the functions of such authorities cannot be discharged by an arbitrator appointed under Section 3-G(5). In this regard, he relies upon the decision of the Apex Court in A.R.Antulay v. R.S.Nayak, reported in AIR 1988 SC 1531, more particularly para 39, 91, 110 and 112 which are extracted hereunder:
39. Shri Jethmalani sought to urge before us that the order made by the court was not
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without jurisdiction or irregular. We are unable to agree. It appears to us that the order was quite clearly per incuriam. This Court was not called upon and did not decide the respondent express limitation on the power conferred by Section 407 of the Code which includes offences by public servants mentioned in the 1952 Act to be overridden in the manner sought to be followed as the consequential direction of this Court. This Court, to be plain, did not have jurisdiction to transfer the case to itself. That will be evident from an analysis of the different provisions of the Code as well as the 1952 Act. The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal. See in this connection the observations in M.L. Sethi v. R.P. Kapur [(1972) 2 SCC 427 :
AIR 1972 SC 2379 : (1973) 1 SCR 697] in which Justice Mathew considered Anisminic [(1969) 2 AC 147 : (1969) 1 All ER 208] and also see Halsbury's Laws of England, 4th Edn., Vol. 10, page 327 at para 720 onwards and also Amnon Rubinstein --- Jurisdiction and Illegality (1965 Edn., pages 16-50). Reference may also be made to Raja Soap Factory v. S.P. Shantharaj. [AIR 1965 SC 1449 : (1965) 2 SCR 800]
91. It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise.
So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021specific laws enacted by the legislature. For instance, Article 129 confers all the powers of a court of record on the Supreme Court including the power to punish for contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High Courts. Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided lower either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. In support of judicial opinion for this view reference may be made to the Permanent Edition of "Words und Phrases"
Vol. 23-A at page 164. It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the volume. At page 174, referring to the decision in Carlile v. National Oil & Development Co. it has been stated.
Jurisdiction is the authority to hear and determine, and in order that it may exist the following are essential: (1) A court created by law, organized and sitting; (2) authority given to it by law to hear and determine causes of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of
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the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the court's territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision.
110. It is clear from the opinions of learned Brothers Justice Mukharji and Justice Misra that the jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law and it is this error which is sought to be corrected. Although it is unfortunate that it is being corrected after long lapse of time. I agree with the opinion prepared by Justice Mukharji and also the additional opinion prepared by Justice Misra.
112. In both the judgments it has been clearly observed that judicial order of this Court is not amenable to a writ of certiorari for correcting any error in the judgment. It has also been observed that the jurisdiction or power to try and decide a cause is conferred on the courts by the Law of the Land enacted by the legislature or by the provisions of the Constitution. It has also been highlighted that the court cannot confer a jurisdiction on itself which is not provided in the law. It has also been observed that the act of the court does not injure any of the suitors. It is for this reason that the error in question is sought to be corrected after a lapse of more than three years. I agree with the opinion expressed by Justice Mukharji in the judgment as well as the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021additional opinion given by Justice Misra in his separate judgment.
10.11. He also relied on the decision in Chiranjilal Shrilal Goenka v. Jasjit Singh, reported in (1993) 2 SCC 507, more particularly para 17 and 18 which are reproduced hereunder for easy reference:
17. We agree with Mr Chidambaram that the applicant had consented to refer the dispute for arbitration of dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute. The other legatees in the will were not parties to it. In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 :
1988 SCC (Cri) 372] when a Constitution Bench directed the High Court Judge to try the offences under the Prevention of Corruption Act with which the petitioner therein was charged and the trial was being proceeded with, he questioned by way of writ petition the jurisdiction of this Court to give such a direction. A Bench of seven judges per majority construed the meaning of the word 'jurisdiction'. Mukharji, J. as he then was, speaking per himself, Oza and Natarajan, JJ. held that the power to create or enlarge jurisdiction is legislative in character. So also the power to confer a right of appeal or to take away a right of appeal. The Parliament alone can do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court and divest a person of his rights of appeal or
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revision. Ranganath Mishra, J. as he then was, held that jurisdiction comes solely from the law of the land and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. Oza, J. supplementing the question held that the jurisdiction to try a case could only be conferred by law enacted by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law. Ray, J. held that the Court cannot confer a jurisdiction on itself which is not provided in the law. In the dissenting opinion Venkatachaliah, J., as he then was, lay down that the expression jurisdiction or prior determination is a "verbal coat of many colours". In the case of a tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a 'legal shelter' and a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Thus this Court laid down as an authoritative proposition of law that the jurisdiction could be conferred by statute and this Court cannot confer jurisdiction or an authority on a tribunal. In that case this Court held that Constitution Bench has no power to give direction contrary to Criminal Law Amendment Act, 1952. The direction per majority was held to be void.
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18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh v. Muni Subrat Dass [(1969) 2 SCR 432] an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal [(1969) 1 SCC 59 : AIR 1970 SC 838] . In Ferozi Lal Jain v.
Man Mal [(1970) 3 SCC 181 : AIR 1970 SC 794] a compromise dehors grounds for eviction was arrived at between the parties under Section 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. [(1990) 1 SCC 193 : JT 1989 (Suppl) SC 329] the civil court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (11 of 1973). It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune [AIR 1990 Bom 45 : (1989) 3 Bom CR 535] a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned under Section 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is non est. In Ghellabhai case [ILR 21 Bom 336] Sir C. Farran, Kt., C.J. of Bombay High Court held that the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021probate court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.
10.12. He also relied on the decision in Rajasthan SRTC v. Bal Mukund Bairwa (2), reported in (2009) 4 SCC 299, more particularly para 40 which is reproduced hereunder for easy reference:
40. In Praga Tools Corpn. v. C.A. Imanual [(1969) 1 SCC 585] it was held: (SCC p. 589, para 6) "6. ... Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the
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authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities."
10.13. Learned counsel submits that the respondents are likely to rely upon the decision in G.C.Thippeswamy -v- Union of India and others [ILR 2018 KAR 4899] and submits that said decision is distinguishable from these facts. Apart therefrom he submits that the said decision is rendered per incuriam and as such, would not be applicable to the present case. In this regard, he relies upon the following decisions:
10.14. He also relies on A.R.Antulay case(supra), more particularly para 42, 44 and 47 which are reproduced hereunder for easy reference:
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42. It appears that when this Court gave the aforesaid directions on 16-2-1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions or law and the decision in Anwar Ali Sarkar case [AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] . See Hulsbury's Laws of England, 4th Edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15;
Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER 293, 300] Also see the observations of Lord Goddard in Moore v. Hewitt [(1947) 2 All ER 270, 272-A] and Penny v. Nicholas [(1950) 2 All ER 89, 92-A] . "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling [(1955) 1 All ER 708, 718-F] . Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985 Supp SCC 280 : (1985) 3 SCR 26] We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.
44. The principle in England that the size of the Bench does not matter, is clearly brought out in the decision of Evershed, M.R. in the case of Morelle v. Wakeling [(1955) 1 All ER 708, 718-F] . The law laid down by this Court is somewhat different. There is a hierarchy within the court itself here, where larger Benches overrule smaller Benches. See the observations of this Court in
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Mattulal v. Radhe Lal [(1974) 2 SCC 365 : AIR 1974 SC 1596 : (1975) 1 SCR 127] , Union of India v. K.S. Subramanian [(1976) 3 SCC 677, 681 : AIR 1976 SC 2433 : (1977) 1 SCR 87, 92] and State of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC 52, 64 : AIR 1976 SC 2547 : (1977) 1 SCR 462, 475] . This is the practice followed by this Court and now it is a crystallised rule of law. See in this connection, as mentioned hereinbefore, the observations of the State of Orissa v. Titaghur Paper Mills [1985 Supp SCC 280 : (1985) 3 SCR 26] and also Union of India v. Godfrey Philips India Ltd [(1985) 4 SCC 369, 387 : 1985 Supp (3) SCR 123, 145].
47. In our opinion, we are not debarred from re- opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16-2-1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution. The appellant has been treated differently from other offenders, accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a court competent to try the offence. It was directed to try the appellant under the directions of this Court, which was in derogation of Article 21 of the Constitution. The directions have been issued without observing the principle of audi alteram partem. It is true that Shri Jethmalani has shown us the prayers made before the High Court which are at page 121 of the paper-book. He argued that since the transfers have been made under Section 407, the procedure would be that given in Section 407(8) of the Code. These directions, Shri Jethmalani
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021sought to urge before us, have been given in the presence of the parties and the clarificatory order of 5-4-1985 which was made in the presence of the appellant and his counsel as well as the counsel of the State Government of Maharashtra, expressly recorded that no such submission was made in connection with the prayer for grant of clarification. We are of the opinion that Shri Jethmalani is not right when he said that the decision was not made per incuriam as submitted by the appellant. It is a settled rule that if a decision has been given per incuriam the court can ignore it. It is also true that the decision of this Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 : (1955) 2 SCR 603, 623] was not regarding an order which had become conclusive inter parties. The court was examining in that case only the doctrine of precedents and determining the extent to which it could take a different view from one previously taken in a different case between different parties.
10.15. State of U.P. v. Synthetics and Chemicals Ltd., reported in (1991) 4 SCC 139, more particularly para 40 and 41 which are reproduced hereunder for easy reference:
40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis.
The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021binding authority'. (Young v. Bristol Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER 293] ). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey [(1962) 2 SCR 558 : AIR 1962 SC 83] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.
41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub- silentio. "A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. [(1941) 1 KB 675, 677 : (1941) 2 All ER 11] the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. [(1989) 1 SCC 101] The bench held that, 'precedents sub-silentio and without argument are of no moment'. The courts thus have taken recourse to this principle for
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry [AIR 1967 SC 1480 : (1967) 2 SCR 650 : 20 STC 215] it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.
10.16. Panchaxari Shidramappa Yeligar v.
Shiggaon Taluka Shikshana Samithi, reported in ILR 1998 KAR 3748, more particularly para 11.1 and 11.4 which are reproduced hereunder for easy reference:
11.1. The binding nature of precedent is, of course, subject to several well known exceptions. Some of the recognised exceptions to the rule of stare decision, where a decision will not be
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021binding as a precedent are: (a) when there is a subsequent statutory modification at variance with the decision; (b) a different view being taken by Courts in higher tiers, subsequently; (c) where a decision is found to have been rendered per incuriapi, that is, in ignorance or oversight of relevant statutory provisions, or binding decisions of Courts in higher tiers; (d) where a decision which passes sub silentio, that is when the particular point of law involved in the decision is not perceived by the Court or present to its mind, in this case, we are concerned with the exception falling under the category of decisions given per incuriam. In Hundgund's case, the learned Single Judge has relied on two decisions in this behalf and I will refer to them.
11.4. Thus, it is clear that an otherwise binding precedent will not be binding if it can be held that the decision was rendered per incuriam, that is it was rendered in ignorance of a statute or rule having the force of statute; or having known the statute, it did not have in its mind, the precise terms of the statute or did not appreciate the relevance of the statute to the case on hand. The second question is answered in the affirmative.
10.17. Chembra Orchard Produce Limited, Bangalore v. Nil, reported in (2004) 4 Kar L.J. 83, more particularly para 8 to 13 and 21 which are reproduced hereunder for easy reference:
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8. It is settled law when there is a judgment of a co-ordinate Bench even if the other co-ordinate Bench does not accept the reasoning of the earlier Bench, the said judgment cannot be ignored however persuasive the reasoning given by a judgment of another Bench and follow the same and decide the said question. It is settled law as held by the Supreme Court in the case of Jaisri Sahu v. Rajdewan Dubey [AIR 1962 SC 83.] , what is the practice to be followed when there is a conflict among Benches of the decision of the same High Court. It has been held as under.--
"When a Bench of the High Court gives a decision on a question of law, it should, in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is, therefore, desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. When two such conflicting decisions are placed before a later Bench, the correct procedure to follow in such a case would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other".
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 20219. Again the Supreme Court in the case of Dr. Vijay Laxmi Sadho v. Jagdish [AIR 2001 SC 600 :
(2001) 2 SCC 247.] , has held as under.--
"As the learned Single Judge was not in agreement with the view expressed in the earlier decision of another Single Judge of that High Court it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. It is noted with regret and distress that the said course was not followed. It is well-settled that if a Bench of co-ordinate jurisdiction disagrees with another Bench of co-ordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs".
10. Again the Supreme Court in the case of State of Bihar v. Kalika Kuer alias Kalika Singh [AIR 2003 SC 2443 : (2003) 5 SCC 448 : 2003 AIR SCW 2458.] , has held as under.--
"10. ... we would like to say that an earlier decision may seem to be incorrect to a Bench of a co-ordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be
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not correct yet it will have the binding effect on the latter Bench of co-ordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways - either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits".
11. Learned Counsels for the applicants submitted the law laid down by the Supreme Court as aforesaid recognises an exception to the said rule, i.e., where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue, rule of per incuriam could be applied and such a judgment is not binding on a Judge of co-ordinate jurisdiction and it would not be binding as a precedent. In support of his contention he relies on a judgment of this Court in the case of Panchaxari Shidramappa Yeligar v. Shiggaon Taluk Shikshana Samithi [2000 (5) Kar. L.J. 174.] , where the exceptions to stare decisis, exceptions based on rule of per incuriam are laid down which reads as under.--
"While some of the exceptions to the rule of stare decisis can be applied to all decisions which can be called as precedents, some, like the exception based on per incuriam Rule can be applied only in regard to decisions of Co-ordinate Benches of the same Court, and not to decisions of larger Benches of the same Court or the Apex Court. While a decision rendered per incuriam by a Co- ordinate Bench may not be binding as a precedent, a Court in a lower tier (Smaller Bench) cannot refuse to follow the ratio decidendi of a
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decision rendered by the Court in a higher tier (larger Bench of the same Court or the Apex Court) by stating that such decision is rendered per incuriam".
12. The Supreme Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur [AIR 1989 SC 38 : (1989) 1 SCC 101.] , dealing with the principle of per incuriam has held as under.--
"11. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edition, explains the concept of sub silentio at page 153 in these words:
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio".
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202112. .... Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority".
(emphasis supplied)
13. In Halsbury's Laws of England (Fourth Edition), Vol. 26: judgment and orders judicial decisions as Authorities (pages 297 and 298, Para
578) it is stated as under.--
"A decision is given per incuriam when the Court has acted in ignorance of a prevision decision of its own or of a Court of co-ordinate jurisdiction while covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the Court has not the benefit of the best argument and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of appeal has misinterpreted a previous decision of the House of Lord, the Court of appeal must follow its previous
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decision and leave the House of Lords to rectify the mistake".
21. However, it is made clear that though a joint petition by all the companies which have propounded the scheme, is maintainable, such joint application is to be numbered separately with reference to each company, each company has to pay separate Court Fee on their application and when the Court grants permission to convene the meeting of the shareholders and creditors of each company, the notice of such meeting shall be published in two newspapers as required under law by each of the companies separately. The reason being the shareholders and creditors of each company are different, the registered office of the place where the meeting is convened would be separate and the date and time of such meeting may be separate. In this regard, there should not be any confusion. Therefore, even if a joint petition is filed, either the notice of the meeting of the shareholders and creditors in a petition under Section 391 or the notice of hearing of the petition under Sections 391(2) and 394 of the Act before according sanction shall be published separately by each company bearing the separate Company petition or company application number given to the said company, mentioning the place, date and time of such meeting or the date of hearing of the petition. Under those circumstances, I am constrained to hold as the learned Judge who passed the order in Electro Carbonium Private Limited's case, supra, has omitted to consider this statutory provision, in view of the law declared by the Supreme Court can be safely said that the said decision is rendered per incuriam and it would not be a
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021binding precedent. Therefore, I answer the point in the following manner:
"The joint application/petition by the transferor company and the transferee company is maintainable under Sections 391 and 394 of the Companies Act".
10.18. Learned counsel submits that the decision in G.C.Thippeswamy's case touching upon the jurisdiction of this court cannot be said to be finally determined when the said court had determined the same by applying an erroneous decision. In this regard he relies upon the decision of the Apex Court in the case Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, reported in AIR 1971 SC 2355, more particularly para 10 which is reproduced hereunder for easy reference:
10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court.
If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
10.19. On the basis of the above, he submits that the writ petitions are required to be allowed and the reliefs sought for are to be granted.
11. Sri.Udaya Holla, learned Senior counsel appearing for the National Highway Authorities (NHA) submitted as under:
11.1. At the outset learned Senior counsel submits that the writ petitions are completely false, frivolous and are required to be dismissed.
These Writ petitions are coming in the way of the implementation of an infrastructure project of public importance.
11.2. The preliminary notification was issued under Section 3-A of N.H Act, after hearing the objections of any interested persons. In the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021event of there being a recommendation for acquisition, final notification in terms of Section 3-D of N.H.Act is issued. As soon as the said notification is issued, in terms of Section 3- D(2), the land vests absolutely with the Central government, free of encumbrance.
11.3. Relying on the same he submits that once notification is issued under Section 3-D(1) of the N.H Act, the acquisition is complete and the land vests with the Central Government. If at all there are any claims from the petitioners, the same would have to be adjudicated in terms of Section 3-G of the N.H Act, more particularly Section 3-G(5), since compensation amount has already been determined.
11.4. Once a declaration under Section 3-D(1) has been issued and the land vests with the Central government, it is only a formality for the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Central Government to take possession of the property. If there is any grievance of the petitioners as regards the entitlement of the petitioners in terms of Schedule-I, II, and III, it is for the petitioners to approach the Arbitrator under Section 3-G(5) of the N.H Act.
11.5. There is a distinction in the applicability of LARR Act and the applicability of Schedules of the LARR Act by referring to wording of S.O.2368(E) dated 28.08.2015. The said S.O. is extracted hereinabove in the case of Union of India v. Tarseem Singh and Ors.
11.6. By referring to Sub-section (2) of the said order, he contends that the said order only provides for the application of the LARR Act relating to determination of compensation in accordance with Schedule-I, Rehabilitation and Resettlement in accordance with Schedule-II,
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Infrastructure Amenities in accordance with Schedule-III and the order has extended applicability of all the above to land acquisition under the enactments specified in Schedule-IV, which includes N.H Act. That being the case, he submits that it is not the entire LARR Act which is made applicable, but it is only the Schedules which are made applicable.
11.7. The Schedules confer a right on the land loser to obtain compensation and other rehabilitation benefits which could be decided by the Arbitrator and that the S.O. No. 2368(E) dated 28.08.2015 does not contemplate the application of various provisions of LARR Act in terms of the actions to be taken by different authorities like the Administrator, Deputy Commissioner, etc.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202111.8. The entitlement of compensation, rehabilitation and resettlement, etc., are as determined in the Schedules. The Arbitrator is only required to ascertain as to which of those entitlements the land loser would be entitled for and as such, if at all there is any grievance of the petitioners, they need to approach the Arbitrator and not this Court.
11.9. Learned Senior counsel relies upon the decision of this Court in G.C.Thippeswamy (supra) [ILR 2018 KAR 4899 ], more particularly para 18, 21, 23 to 26:
18. A bare reading of the provisions of law along with the Four Schedules to the New L.A. Act of 2013 with the Notification dated 28/08/2015 makes it very clear that the new general law of land acquisition under the New L.A. Act of 2013 is extended to apply to the land acquisitions under Special Enactments specified in the Fourth Schedule is only to the extent of the provisions of the New L.A. Act of 2013 relating to the determination of the compensation which includes monetary compensation and indirect compensation in the form of Rehabilitation and
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Resettlement of the land losers under First, Second and Third Schedules to the Act.
21. There is no justifiable reason for quashing of the Preliminary and Final Notifications for acquisition much less the Awards passed by the concerned Special Land Acquisition Officer. Therefore, even while the Amendment Application may be allowed by this Court for taking on record the Awards in question but, there is no reason to quash the same, as the same are apparently issued in accordance with the First Schedule to the Act of 2013.
23. This Court does not find any force in the contentions raised by the Learned Counsel for the petitioners that the procedural aspects for undertaking the land acquisition proceedings as provided under the New L.A. Act of 2013 also will apply to the acquisition under the provisions of National Highways Act, 1956. The position of law is on the contrary. Section 105 of the New L.A. Act of 2013 excludes the applicability of the New L.A. Act of 2013 to the acquisitions under the special enactments enumerated in the Fourth Schedule to the Act which includes National Highways Act, 1956. Only to the extent of providing relief by way of uniform compensation, the Central Government has extended being empowered under SECTION 105(3) of the New L.A. Act of 2013, the provisions relating to compensation even to the acquisitions under these Special Enactments including the acquisitions under National Highways Act, 1956.
24. The contention of the Learned Counsel for the petitioners that Social Impact Assessment study etc., were not carried out before hand,
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021cannot be a ground to attack and challenge the land acquisition under National Highways Act, 1956 as those provisions of New L.A. of 2013 are not at all applicable to the acquisitions made under the National Highways Act, 1956.
25. If the petitioners - land owners are not satisfied with the monetary compensation awarded under the aforesaid Awards dated 04/11/2017 and 08/11/2017 they have a remedy by taking the matter further before the concerned authorities, viz. Civil Court under Sections 3-G and 3-H of the National Highways Act, 1956 which provides for dispute with regard to amount of compensation to be referred to the Arbitrator under Section 3-G of the said Act. Therefore, the petitioners have an alternative remedy with regard to the compensation monetary or in the form of Rehabilitation and Resettlement to be undertaken by the Respondent - NHAI even before the concerned Authority/Court through the process of Arbitration under Section 3-G of the said Act.
26. The provisions of the New L.A. Act of 2013 do not override or render the provisions of the National Highways Act, 1956 otiose. On the contrary, they are harmonious and complimentary to each other with specified area of connectivity like the provisions relating to compensation under the New L.A. Act of 2013 applying to National Highways Act, 1956 by virtue of delegated power given to the Central Government under SECTION 105(3) of the New L.A. Act of 2013.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202111.10. NHAI v. Sayedabad Tea Co. Ltd., reported in (2020) 15 SCC 161, para 19 which is reproduced hereunder for easy reference
19. It is settled principles of law that when the special law sets out a self-contained code, the application of general law would impliedly be excluded. In the instant case, the scheme of the 1956 Act being a special law enacted for the purpose and for appointment of an arbitrator by the Central Government under Section 3-G(5) of the 1956 Act and sub-section (6) of Section 3-G itself clarifies that subject to the provisions of the 1956 Act, the provisions of the 1996 Act shall apply to every arbitration obviously to the extent where the 1956 Act is silent, the arbitrator may take recourse in adjudicating the dispute invoking the provisions of the 1996 Act for the limited purpose. But so far as the appointment of an arbitrator is concerned, the power being exclusively vested with the Central Government as envisaged under sub-section (5) of Section 3- G of the 1956 Act, Section 11 of the 1996 Act has no application.
11.11. He submits that when a statutory remedy of arbitration under Section 3-G(5) is available, a writ remedy cannot be entertained. In this regard he relied upon the decision in Rajasthan State Industrial Development &
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., reported in (2013) 5 SCC 470, more particularly para 1 and 39 which are reproduced hereunder for easy reference;
B.S. CHAUHAN, J.-- These appeals have been preferred against the impugned judgment and order dated 30-7-2002 passed by the High Court of Rajasthan (Jaipur Bench) in Diamond & Gem Development Corpn. v. State [Diamond & Gem Development Corpn. v. State, WP (C) No. 5481 of 1994, decided on 30-7-2002 (Raj)] , by which the High Court has allowed the writ petitions filed by the respondent, Diamond & Gem Development Corporation Ltd. (hereinafter referred to as "the Company"), for quashing the order of cancellation of allotment of land and directing the appellants for providing the approach/access road.
39. The cancellation of allotment was made by appellant RIICO in exercise of its power under Rule 24 of the 1979 Rules read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24(aa) and, in the alternative, the respondent Company wcould have preferred an appeal under Rule 24(bb)(ii) before the Infrastructure Development Committee of the Board. The respondent Company ought to have resorted
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then decided the case. However, the respondent Company did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law.
11.12. Vishal Jain v. Competent Authority, reported in 2019 SCC OnLine MP 851, more particularly para 3 and 4 which are reproduced hereunder for easy reference:
3. In the present case, the petitioner is having an alternative remedy to take an appropriate action under Section 3(G)(5) of National Highway Authority Act, 1956, this Court does not find any reason to interfere with the order passed by the learned Single Judge.
4. Present writ appeal is, accordingly, dismissed.
11.13. Vidya Ramaswamy v. Union of India, reported in 2021 SCC OnLine Ker 4665, more particularly para 7, 8, 13 and 15 which are reproduced hereunder for easy reference:
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7. Sri. Salil Narayan, learned Standing Counsel for the NHAI, commenced his submissions in opposition to the afore plea made by Sri. T.S. Harikumar, saying that the petitioners seem to have approached this Court under a wrong impression and on an apocryphal apprehension.
He invited my attention to Ext.P4, which is a notice issued to the petitioners under Section 3(E) of the NH Act, to show me that the compensation under the Award had been computed and determined by the CALA only under the provisions of the "RFCTLARR Act". He submitted that, therefore, the petitioners will have to approach the District Collector under Section 3(G) of the NH Act, if they are dissatisfied and that the said Authority will then consider it wholly guided by the principles under the "RFCTLARR Act". He argued that this is exactly what has been mandated through Ext.P1 order of the Central Government, which stipulates that the provisions of the "RFCTLARR Act", relating to determination of compensation, as per the 2nd Schedule thereto, will be applicable to the "NH Act" also. He, therefore, prayed that this writ petition be dismissed.
8. I find substantial force in the submissions of Sri. Salil Narayan, learned Standing Counsel for the NHAI because, as per Ext.P1, the provisions of the "RFCTLARR Act" have been made applicable to all the Statutes which are covered by Schedule Four therein and the NH Act certainly is one among them. Apodictically therefore, the computation of compensation and evaluation of the amenities will have to be done as per Schedules 1, 2 and 3 of the "RFCTLARR Act".
13. That being said, I am also aware that petitioners have approached this Court only on 19.03.2021, but the fact remains that they were under the bonafide impression that, notwithstanding Exhibit P8, their applications,
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021namely Exhibits P5 to P7, would be considered by the CALA under the provisions of the "RFCTLARR Act". I cannot recriminate them for this because it is without doubt that the provisions of the "RFCTLARR Act" would have to apply in their case, which is also now expressly admitted. They may, therefore, have harboured the legitimate impression that their request for escalation will have to be considered only by the District Court. The fact that the District Collector would act only under the provisions of the "RFCTLARR Act" does not seem to have been advised to the petitioners; and their above impression was certainly plausible because, in Exhibit P8, the CALA notified their counsel that the decision on their request for escalation of the amounts under the Award can be taken only by the District Collector under Section 3G(5) of the NHAI Act, but without clarifying that this will be done exclusively under the mandate of the "RFCTLARR Act".
15. In denouement, I allow this writ petition, granting liberty to the petitioners to approach the competent District Collector, who is the Appellate Authority under the provisions of the NH Act, through appropriate applications seeking enhancement of the amounts under the award; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, it shall be considered on its merits by the said Authority, after affording necessary opportunities of being heard to them, thus culminating in apposite orders thereon, as expeditiously as is possible.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202111.14. Triveni Prasad v. Union of India, reported in 2016 SCC OnLine All 2819, more particularly para 8 which is reproduced hereunder for easy reference:
8. The petitioners, therefore, have a full right to contest their claim with regard to their entitlement of a free and fair compensation in accordance with the provisions of 2013 Act keeping in view the ordinances and the notifications referred to herein above. It is open to the petitioners, therefore, to raise their plea with regard to any such claim which may be admissible and permissible under the aforesaid provisions before the competent authority or the Court where any such issue of enhancement of compensation or claim of fair compensation has been raised or is pending consideration in relation to the acquisition of the land of the petitioners. This issue, therefore, will have to be decided by the appropriate-forum and the petitioners will have full right to raise this issue appropriately which the competent forum is obliged to decide in law. Consequently, for all the aforesaid reasons we decline to interfere with the acquisition part of the land and we consequently vacate the interim order dated 18.7.2014 but at the same time we dispose of the writ petition without prejudice to the rights of the petitioners to contest their claim with regard to the quantum of compensation and their right to claim a fair compensation be fore
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the appropriate forum in accordance with law and in view of observations made herein above 11.15. Reliance is placed on the decision of the Apex Court in the case of Ramniklal N. Bhutta v.
State of Maharashtra, reported in (1997) 1 SCC 134, more particularly para 10 which is reproduced hereunder for easy reference:
10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings
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in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 -- indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021courts while dealing with challenges to acquisition proceedings.
11.16. In Girias Investment (P) Ltd. v. State of Karnataka, reported in (2008) 7 SCC 53, more particularly para 27 which is reproduced hereunder for easy reference:
27. The aforesaid paragraphs clearly reveal that the request for a personal hearing was conditional, in that if a clarification or additional documents were required, time for that purpose be given. It is also significant that the objections filed by the appellants form (almost exclusively) the basis for the present writ petition inasmuch as the fact that there was no need for the change of the alignment of the trumpet interchange and the access road or that alternative land was available for that purpose, had been spelt out therein. The Collector in dealing with the objections had observed that several objections/documents had been filed by the appellants but were liable to rejection as the acquisition was necessary for Bangalore Airport. We are also not unmindful of the fact that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so. This is the ratio of the judgment of this Court in Ramniklal N. Bhutta v. State of Maharashtra [(1997) 1
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SCC 134] wherein it has been held as under:
(SCC p. 140, para 10) "10. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226--
indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the person interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202111.17. Relying on these decisions, learned Senior counsel submits that there is public interest in land acquisition, the power under Article 226 being discretionary, it is to be exercised only in rare cases, in furtherance of interest of justice and not merely because a point is made out.
11.18. Reliance is placed on the decision in Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., reported in (2005) 6 SCC 138, more particularly para 15 which is reproduced hereunder for easy reference:
15. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd. [(2000) 2 SCC 617] and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in
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the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.
11.19. He relies on this to contend that the Court has to exercise judicial restraint in review of administrative action and should exercise care and caution for furtherance of public interest.
11.20. Reliance is placed upon the decision in the case of N.G. Projects Ltd. v. Vinod Kumar Jain, reported in (2022) 6 SCC 127, more particularly para 14, 19, 20 and 21 which are reproduced hereunder for easy reference:
14. In National High Speed Rail Corpn. Ltd. v.
Montecarlo Ltd. [National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd., (2022) 6 SCC 401] , this Court sounded a word of caution while entertaining the writ petition and/or
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021granting stay which ultimately may delay the execution of the mega projects. It was held as under : (SCC para 48) "48. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is as such perverse and/or arbitrary and/or suffers from mala fides and/or favouritism, while entertaining such writ petition and/or pass any appropriate interim order, High Court may put to the writ petitioner's notice that in case the petitioner loses and there is a delay in execution of the project due to such proceedings initiated by him/it, he/they may be saddled with the damages caused for delay in execution of such projects, which may be due to such frivolous litigations initiated by him/it. With these words of caution and advise, we rest the matter there and leave it to the wisdom of the Court(s) concerned, which ultimately may look to the larger public interest and the national interest involved."
19. The Specific Relief Act, 1963 was amended by Central Act 18 of 2018 when clause (ha)
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021was inserted in Section 41 of the said Act to say:
"41. (ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject-matter of such project."
20. Such amendment was in pursuance of the report submitted on 20-6-2016 of the Expert Committee. The report is as under:
"The Expert Committee set on examining the Specific Relief Act, 1963 submits its Report to Union Law & Justice Minister recommends modifications for ensuring ease of doing business.
The Expert Committee set on examining the Specific Relief Act, 1963 today submitted its Report to Union Law & Justice Minister Shri D.V. Sadananda Gowda here in New Delhi. In its report the committee has recommended modifications in the Specific Relief Act, 1963 for ensuring the ease of doing business.
In the context of tremendous developments which have taken place since 1963 and the present changed scenario involving contract based infrastructure developments, public private partnerships and other public projects, involving huge investments; and changes required in the present scheme of the Act so that specific performance is granted as a general rule and grant of compensation or damages for non-performance remains as an exception, the committee decided--
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(i) To change the approach, from damages being the rule and specific performance being the exception, to specific performance being the rule, and damages being the alternate remedy.
(ii) To provide guidelines for reducing the discretion granted to courts and tribunals while granting performance and injunctive reliefs.
(iii) To introduce provisions for rights of third parties (other than for government contracts).
(iv) To consider addressing unconscionable contracts, unfair contracts, reciprocity in contracts, etc. and implied terms.
The committee observed that there is a need to classify diverse public utility contracts as a distinct class recognising the inherent public interest/importance to be addressed in the Act. Any public work must progress without interruption. This requires consideration whether a court's intervention in public works should be minimal. Smooth functioning of public works projects can be effectively managed through a monitoring system and regulatory mechanism. The role of courts in this exercise is to interfere to the minimum extent so that public works projects will not be impeded or stalled."
21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021even by the writ court while exercising its jurisdiction under Article 226 of the Constitution of India.
11.21. Reliance is placed on these judgements to contend that the Apex Court has cautioned all Courts not to impede or delay the progress or completion of infrastructure projects. Therefore, this Court ought to be cautious in entertaining the claim of the petitioners.
11.22. Placing reliance on the above decisions, he submits that if at all the petitioners have any grievance, the petitioners would have to approach the Arbitrator and not agitate the present grievances before this, as such, he submits that the writ petitions have to be dismissed.
12. Ms.Shilpa Shah, learned counsel appearing for NHA in one of the matters would submit that it is only in
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021the event of a notification under Section 11 of the LARR Act being issued that the requirement of Section 16 of the LARR Act would be applicable. In the present case, the notification regarding acquisition is under N.H Act and not under Section 11 of LARR Act. Therefore, Section 16 of LARR Act would not be applicable. The legislature while enacting the LARR Act was aware of the States, probably in the future, applying LARR Act to acquisitions under N.H Act which is contemplated under Section 105 of LARR Act and the statute gave a discretion to the Government to issue necessary notification. The notification having been issued by the State there being a limited applicability in terms of only the Schedule and not the entire enactment, she submits that the petition do not make any ground for consideration and are required to be dismissed.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202113. Heard Sri.Cliffton D.Rozario, learned counsel, Smt. Avani Choksi, learned counsel and Smt.Smt. Maitreyi Krishnan, learned counsel appearing for the petitioners, Sri.Nithyananda.K.R, learned Additional Government Advocate for respondent No.2, Sri.Thimmanna Bhat, Central Government Counsel for respondent No.1 and Sri.Udaya Holla, learned Senior counsel for Sri.Sreenath.V.K, learned counsel for respondent No.3 and Smt.Shipla Shah, learned counsel for respondent No.3 in W.P.No.14110/2021.
Perused papers.
14. On the basis of the submissions which have been made, the points that arise for determination are:
1. Whether the entire LARR Act is applicable to the acquisition under the N.H. Act or it is only the schedules which are applicable?
2. If it is only schedules which are applicable, can any claim of the land loser be determined by the Arbitrator under Section 3-G(5)?
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 20213. Whether in the present case, the petitioners have an alternative and efficacious remedy?
4. What order?
15. I answer the above points as under
16. Some of the important provisions under the N.H.Act applicable to the present case are Section 3-A, 3-B, 3-C, 3-D, 3-E, 3F, 3-G and 3-H, which are reproduced hereunder for easy reference:
3A. Power to acquire land, etc:(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.
(2) Every notification under sub-section (1) shall give a brief description of the land.
(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.
3B. Power to enter for survey, etc.--On the issue of a notification under sub-section (1) of section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf, to--
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021(a) make any inspection, survey, measurement, valuation or enquiry;
(b) take levels;
(c) dig or bore into sub-soil;
(d) set out boundaries and intended lines of work;
(e) mark such levels, boundaries and lines placing marks and cutting trenches; or
(f) do such other acts or things as may be laid down by rules made in this behalf by that Government.
3C. Hearing of objections.--(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes 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, it 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 (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961).
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021(3) Any order made by the competent authority under sub-section (2) shall be final.
3D. Declaration of acquisition.--(1) Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under subsection (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 in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A.
(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 sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) 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 or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A 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 authority.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 20213E. Power to take possession.--(1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under section 3G with respect to such land has been deposited under sub-section (1) of section 3H, with the competent 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 sixty days of the service of the notice.
(2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply--
(a) in the 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.
3F. Right to enter into the land where land has vested in the Central Government.--Where the land has vested in the Central Government under section 3D, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance, management
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021or operation of a national highway or a part thereof, or any other work connected therewith.
3G. Determination of amount payable as compensation.--(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.
(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub- section (1), for that land.
(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.
(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.
(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.
(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub- section (5), as the case may be, shall take into consideration--
(a) the market value of the land on the date of publication of the notification under section 3A;
(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;
(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;
(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.
3H. Deposit and payment of amount.--(1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.
(2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021pay the amount to the person or persons entitled thereto.
(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.
(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.
(5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof.
(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit.
17. ANSWER TO POINT NO.1: Whether the entire LARR Act is applicable to the acquisition under the N.H. Act or it is only the schedules which are applicable?
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202117.1. The contention of Sri.Cliffton Rozario, learned counsel is that in view of the order of the Ministry of Rural Development dated 28.08.2015, the entire LARR Act of 2013 is applicable, however, Sri.Udaya Holla, learned Senior counsel submitted that it is only the Schedule-I to III of the LARR Act of 2013 which would be applicable to the N.H Act in view of the order No.S.O.2368(E) dated 28.08.2015.
The relevant portion is extracted hereunder for easy reference:
Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:
1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021(2) It shall come into force with effect from the 1st day of September, 2015.
2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act.
[F. No. 13011/01/2014-LRD] K.P. Krishnan, Addl. Secy."
17.2. Section 105 of the LARR Act of 2013 reads as under:
105. Provisions of this Act not to apply in certain cases or to apply with certain modifications:
(1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament.
17.3. In pursuance of the aforesaid extracted Section, it is clear that the provisions of the LARR Act of 2013 will not apply to the enactments related to land acquisition specified
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021in the Schedule-IV. The N.H. Act is listed at Sl.No.7 of Schedule -IV. Thus, LARR Act of 2013 as enacted at the time of enactment was not applicable to the N.H. Act.
17.4. The restriction under Subsection (1) of Section 105 is subject to Subsection (3) thereof. In terms of Subsection (3), the Central Government may by notification within one year from the date of commencement of LARR Act of 2013 direct the applicability of the provisions of the LARR Act of 2013 relating to determination of compensation in accordance with Schedule-I and rehabilitation and resettlement specified in the Schedules-II and III, being beneficial to the affected families apply to cases of land acquisition under the enactments specified in Schedule-IV, or shall apply with such exceptions or modifications that
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021do not reduce the compensation or dilute the provisions of the Act.
17.5. It is in furtherance thereof, that S.O. 2368(E) was issued on 28.08.2015. This was in furtherance of the ordinances earlier promulgated. The relevant part of the said S.O. is reproduced hereinabove.
17.6. Juxtaposing Subsection (3) of Section 105 with the operative portion of S.O. No.2368(E), it is clear that the Central Government could by notification only direct that the provision of the LARR Act relating to the determination of compensation in accordance with Schedule-I and Rehabilitation and Resettlement specified in Schedule-II and III could be made applicable to acquisitions under the Acts listed in the Schedule-IV. Subsection (3) of Section 105 does not provide for the entire LARR Act of
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 20212013 to be made applicable to Schedule-IV.
The legislature in its wisdom was of the opinion that it is only the Schedules-I, II and III which would be made applicable to acquisitions made under the Acts listed in Schedule-IV.
17.7. Thus, S.O. No.2368(E) which has been issued also restricts the application of the LARR Act of 2013 to the said Schedules in respect of the acquisition under the enactments listed under Schedule-IV. Suffice it to state that Sub-
section (3) of Section 105 and S.O. No.2368(E) are in tandem with each other and the S.O. is neither lesser than the benefit provided under Subsection (3) of Section 105 nor greater than it.
17.8. This Court has also in G.C.Thippeswamy's case (supra) which has been extracted hereinabove held that it is only the Schedules
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021of the LARR Act of 2013 which are applicable to N.H. Act.
17.9. Hence, I answer Point No.1 by holding that the LARR Act of 2013 in its entirety is not applicable to the Acts listed in Schedule-IV, but it is only compensation as determinable under Schedule-I the benefits of rehabilitation as listed in Schedule-II and the resettlement methodology as detailed in Schedule-III which should be applicable to the acquisition made under the enactments listed under the Schedule-IV which includes the N. H. Act.
18. ANSWER TO POINT No.2: If it is only schedules which are applicable, can any claim of the land loser be determined by the Arbitrator under Section 3-G(5)?
18.1. The contention of Sri. Cliffton Rozario, learned counsel for the petitioner is that the LARR Act, 2013 contemplates various authorities to take various decisions, there being checks and
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021counter checks as regards the said decisions and therefore it is those authorities which have to take the decision.
18.2. The submission of Sri.Cliffton Rozario, learned counsel is that social impact assessment has to be done by a particular officer or committee, the preparation of Rehabilitation and Resettlement scheme has to be done by the Administrator, the review of Rehabilitation and Resettlement scheme has to be done by Rehabilitation and Resettlement Committee, the Collector is required to submit a scheme to the Commissioner for Rehabilitation and Resettlement for approval, the said scheme to be published in the Panchayat Municipality or Municipal Corporation and a declaration of an area identified as resettlement area to be made, etc. and as such, various officers being
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021required to discharge different functions, it is only those officers who could do so and in the present factual situation, no such enquiry having been made, no social impact assessment report being submitted, no Rehabilitation and Resettlement Scheme prepared, there is violation of Rehabilitation and Resettlement provision which is made applicable to the acquisition under N.H. Act, and therefore the acquisition proceedings are to be quashed.
18.3. In answer to point No.1, I have held that it is only the Schedules-I, II, III which are applicable to acquisition under the Acts listed under Schedule-IV and it is not the entire Act which is applicable.
18.4. Section 105 of the LARR Act has sought to take a midway approach in providing benefits under
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021the LARR Act of 2013 to even acquisitions under the Acts listed under Schedule-IV so as to bring about an equality insofar as the benefits are concerned for all acquisitions including those under Schedule-IV.
18.5. What is required to be determined in terms of Schedule-I is the market value, factor of the market value, solatium, the award in rural areas, award in urban areas, etc. This determination of compensation would not require any Rehabilitation and Resettlement Scheme or any other report.
18.6. The determination of compensation can be made as per the itemized list under Schedule-I and enhanced benefits of compensation under Schedule-I be made available to the land loser of the acquisition under any of the enactments listed under Schedule-IV.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202118.7. Schedule-IV deals with elements of Rehabilitation and Resettlement entitlements and refers to Section 31(1), 38(1) and 105(3) of the LARR Act of 2013.
18.8. Thus, even when the LARR Act was introduced a reference under Schedule-II was made to Section 105(3) on the assumption that the Central Government may extend the benefits under the LARR Act to acquisitions made under the Acts listed in the Schedule-IV.
18.9. Schedule-II deals with the elements like provision of housing units in case of displacement, land for land, offer for developed land, choice of Annuity of employment, Subsistence grant for displaced families for displaced families for a period of one year, Transportation cost for displaced families, Cattle shed/petty shops cost, One-time grant to
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021artisans, small traders and certain others, Fishing rights, One-time Resettlement allowance, Stamp duty and registration fee.
18.10. Thus, providing of the benefits in Schedule-II is only as regards the aforesaid elements which have been detailed in Schedule-II. The entitlements have been detailed out in the Schedule-II corresponding to the above elements. Thus, for example while laying a highway or while widening an existing highway, if a house of the land owner is lost, then a constructed house is required to be provided as per the Indira Awas Yojana if in the rural area.
If in the urban area, a constructed house having a plinth area not less than 50 sq.mtrs is to be provided.
18.11. Thus, what is provided under Schedule-II is the element of Rehabilitation and Resettlement and
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021the entitlement corresponding to the said element.
18.12. In my considered opinion, the identification of the element or determination of entitlement of the element would not require any social impact system report or Rehabilitation and Resettlement Scheme or the like. It would be for the concerned Authority while passing the award to take the same into consideration and do the needful.
18.13. Schedule-III also relates to Section 32, 38(1) and 105(3) of LARR Act of 2013, thus the legislature contemplated the applicability of the Schedule-III to the enactments listed under Schedule-IV in the event they being made applicable to those enactments.
18.14. Again Schedule-III refers to the components of infrastructure amenities provided or proposed
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021to be provided by the acquirer of land and relates to resettle the population in that village or colony.
18.15. This would be of relevance in respect of certain of the enactments listed in Schedule-IV like Atomic Energy Act,1962 or the Land Acquisition (Mines) Act,1885, The Coal Bearing Areas Acquisition and Development Act, 1957, the Damodar Valley Corporation Act 1948, etc. where large section of population are displaced and are required to be resettled in a new village or colony.
18.16. In the case of an acquisition under N.H. Act, normally there is no large scale resettlement, since the acquisition is of linear extent of lands which may be about 300 ft. wide, whereunder few houses would be demolished requiring
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021resettlement, as also the benefits for such resettlement are covered under Schedule-II.
18.17. In the event of any acquisition under the N.H. Act requiring large scale resettlement of population to a new village or colony, the components of infrastructure as detailed under Schedule-III would have to be made available to the resettled village or colony.
18.18. In such a case it was required for the competent authority to assess the same and put up a proposal having all the facilities described in Schedule-III. This again would not require social impact assessment report or Rehabilitation and Resettlement Scheme.
18.19. This Court in G.C.Thippeswamy's case (supra) has also held that the benefits under Schedules-I, II and III can be referred to an Arbitrator under Section 3-G(5) of the N.H. Act.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202118.20. I am of the considered opinion that whenever there is a acquisition under the N.H. Act, it is required that in terms of Section 3-G, the competent authority make applicable Schedules-I, II and III and determine the compensation which is liable to be paid both in monetary terms, as also in terms of the elements identified under Schedule-II and before determining the same, the competent authority shall have to give a public notice in two local newspapers, one of which being in vernacular language inviting claims from all persons who are interested in terms of Section 3-G of the N.H.Act and thereafter follow the procedure prescribed under Subsection (4) of Section 3-G and determine the amount as stated hereinabove.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202118.21. In the event of same not being determined, the land loser would be entitled to a enhanced claim before the Arbitrator appointed by the Central Government in respect of all items and elements detailed in Schedule-I, II and III of the LARR Act of 2013.
18.22. The contention of Sri.Cliffton Rozario, learned counsel for the petitioners, that jurisdiction cannot be conferred on the Arbitrator to decide the elements under LARR Act of 2013 by relying upon the Chiranjilal's case and the jurisdiction of the Arbitrator cannot be enlarged by relying upon A.R.Antulay case would not be applicable to the present situation for the reason that as held in answer to Point No.1, it is only the Schedules which are applicable to the acquisition under the Act listed in Schedule
-IV and not the entire enactments. The
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021determination of compensation as also the elements would not require the Commissioner or the Committee or the like officers.
18.23. Thus, I am of the considered opinion that firstly it is for the competent authority to follow the procedure as stated under Section 3-G by taking into consideration the applicability of Schedule-I, II and III of the LARR Act of 2013 and secondly, if the competent authority has not taken those facts into consideration, the land loser can approach the Arbitrator for determining the compensation in terms of Schedules-I, II and III.
18.24. Such application by the Arbitrator of the Schedules-I, II and III is not enlargement of jurisdiction. The jurisdiction already vests with the Arbitrator who has been appointed to
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021determine the compensation payable albeit in terms of Schedules-I, II and III.
18.25. I answer point no. 2 by holding that since it is only the schedules which are applicable, any claim of the land loser as regards the determination of compensation in terms of Schedule I, II, III can be made by the Arbitrator under Section 3-G(5).
19. ANSWER TO POINT NO.3: Whether in the present case, the petitioners have an alternative and efficacious remedy?
19.1. In view of answer to Points No.1 and 2, answer to this question is rendered academic, inasmuch as the petitioners in the present case being aggrieved by the determination of compensation by the competent authority, the petitioners would have an alternative and efficacious remedy to approach the Arbitrator in terms of Section 3-G(5) of the N.H. Act.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202119.2. However, in the present case the competent authority not having performed his/her obligation of determining compensation in terms of Schedule I, II and III, it is required that the competent authority redoes the same and passes an award.
20. ANSWER TO POINT NO.4: What Order ?
20.1. The writ petitions are allowed;
20.1.1. In W.P.No.10103/2020, Revised Award Notices dated 24.06.2020 (placed as Annexures J1-J8), the Award dated 26.12.2018 (placed as Annexure-H), dated 26.12.2018, the Official Reminder dated 30.06.2020 (placed as Annexure-P), and Official Reminders dated 02.07.2020 (placed as Annexure-
Q1 to Q7) are quashed.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202120.1.2. In W.P.No.12483/2020, Award Notices No.SLAO & CA/TS-206/CR/14/2018-19 dated 25.03.2019 (placed as Annexures N1, N2 and N3), the Award No.SLAO/CA/NH-206/AWD/CR-
14/2018-19 dated 26.12.2018 (placed as Annexure-K), the Official Reminder No.SLAO/LAQ/ TIP/14/2019-20 dated 20.01.2020 (placed as Annexure-Q), the Official Reminder No.SLAO/LAQ/NH-
206/Bairanayakanahalli/ 2020-21 dated 30.06.2020 (Placed as Annexure-S), and the Official Reminder No.SLAO/LAQ/NH-
206/Bairanayakanahalli/ 2020-21 dated 04.08.2020 (placed as Annexure-T) are quashed.
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 202120.1.3. In W.P.No.12537/2020, the Award Notices dated 25.03.2019 (placed as Annexures-J and K), the Award dated 26.12.2018 (placed as Annexure-H), the Official Reminder dated 23.06.2020 and Official Reminder (Supplementary Award) dated 25.08.2020 (placed as Annexures-N and P respectively), the Official Reminder dated 30.06.2020 (placed as Annexure - Q) and Official Reminder (Supplementary Award) dated 15.09.2020 (placed as Annexure-
R) are quashed.
20.1.4. In W.P.No.14110/2021, the Award Notice dated 02.01.2019 (placed as Annexure-L), the Award dated 24.09.2018 (placed as Annexure-K), the Official Reminder dated 27.04.2019
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021 (placed as Annexure-P), and the
Supplementary award Notice dated
12.11.2020 (placed as Annexure-Q) are quashed.
20.2. The Competent Authority is directed to comply with the requirement of Sub-Section (1), (2) and (3) of Section 3-G of National Highways Act, 1956 and determine the compensation/entitlement of the petitioners by applying Schedules-I, II and III of the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 within a period of four months from the date of receipt of copy of this order and thereafter issue necessary award notices.
20.3. In the event of the petitioners not acceptable to the compensation determined by the competent authority and the award notices issued in terms of direction (2) above, the petitioners would
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WP No. 10103 of 2020 C/W WP No. 12483 of 2020 WP No. 12537 of 2020 WP No. 14110 of 2021always have the liberty to approach the Arbitrator appointed by the Central Government in terms of Section 3-G (5) of National Highways Act, 1956.
Sd/-
JUDGE ln