Rajasthan High Court - Jodhpur
Vikas Construction Company vs Union Of India & Ors on 22 January, 2018
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11688 / 2016
Vikas Construction Company, Sardarpura, Jodhpur through
Proprietor Jagdish Khanna S/o. Maghraj, Age about 50 years, R/o
Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
CONNECTED WITH
S.B. Civil Writ Petition No. 11780 / 2016
Vikas Construction Company, Sardarpura, Jodhpur through
Proprietor Jagdish Khanna S/o. Maghraj, Age about 50 years, R/o
Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 11818 / 2016
1. Sohan Lal S/o Shri Thana Ram Sharma, Age about 55 years,
R/o 124 and 125, Kalpatru Shopping Center, Shastri Nagar,
Jodhpur.
2. Babu Lal S/o Shri Thana am Sharma, R/o 124 and 125,
Kalpatru Shopping Center, Shastri Nagar, Jodhpur.
----Petitioners
(2 of 20)
Versus
1. Union of India through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 12110 / 2016
Smt. Leela Lohiya W/o Shri Goverdhan Das Lohiya, Aged About 64
Years, By caste Maheshwari Lohiya, R/o 12/12, Civil Line
Residency Road, Johdpur
----Petitioner
Versus
1. Union of India through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, District-jodhpur
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali
----Respondents
S.B. Civil Writ Petition No. 12114 / 2016
Goverdhan Das Lohiya S/o Shri Kanmal Lohiya, Aged About 68
years, By caste Maheshwari Lohiya, R/o 12/12, Civil Line
Residency Road, Johdpur
----Petitioner
Versus
1. Union of India through Secretary, Ministry of Road, Transport
and Highway, Government of India, New Delhi
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.)
----Respondents
(3 of 20)
S.B. Civil Writ Petition No. 12237 / 2016
Ritesh Lohiya S/o Shri Goverdhan Das Lohiya, Aged About 43
years, By caste Maheshwari Lohiya, R/o 12/12, Civil Line
Residency Road, Jodhpur
----Petitioner
Versus
1. Union of India through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur
3. The Prescribed Authority (land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali
----Respondents
S.B. Civil Writ Petition No. 12695 / 2016
Smt. Preeti Lohiya W/o Shri Ritesh Lohiya, Aged About 39 years,
By caste Maheshwari Lohiya, R/o 12/12, Civil Line Residency
Road, Jodhpur
----Petitioner
Versus
1. Union of India through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.)
----Respondents
S.B. Civil Writ Petition No. 7951 / 2017
Pankaj Kumbhat S/o Shri Prakash Mal Kumbhat, Aged About 53
Years, R/o 1017, Nehru Park Road, Sardarpura, Jodhpur.
----Petitioner
Versus
1. Union of India through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
(4 of 20)
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.)
----Respondents
S.B. Civil Writ Petition No. 9622 / 2017
Chetan Ram Suthar S/o Shri Deva Ram, Aged About 41 Years, By
Caste Suthar, R/o 93-A Jwala, Vihar Chopasani Road, Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.)
----Respondents
S.B. Civil Writ Petition No. 9623 / 2017
Smt. Anu Ben W/o Shri Om Prakash Suthar, Aged About 40 Years,
By Caste Suthar, R/o Atop Nagar Society, Bunglaow No. A13,
Bhatar Road, Surat (Gujarat).
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
(5 of 20)
S.B. Civil Writ Petition No. 9624 / 2017
Rakesh S/o Shri Bhika Ram, Aged About 44 Years, By Caste
Suthar, R/o 942-A, 10th E Road, Sardarpura, Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 9628 / 2017
Dharmesh U. Nagal S/o Shri Ugma Ram, Aged About 43 Years, By
Caste Suthar, R/o Village/Post Pacholi, Tehsil Khinvsar, District
Nagaur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 9637 / 2017
1. Smt. Laxmi Devi W/o Shri Pukhraj Uttam, Aged About 45
Years, By Caste Suthar, R/o B-85, Shramikpura Masuriya,
Jodhpur.
2. Smt. Sunita W/o Shri Lalit Uttam, Aged About 42 Years, By
Caste Suthar, R/o B-85, Shramikpura Masuriya, Jodhpur.
----Petitioners
Versus
(6 of 20)
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 9640 / 2017
Smt. Jamna Devi W/o Shri Bhika Ram, Aged About 42 Years, By
Caste Suthar, R/o 224, Kamla Nehru Nagar, Pratham Vistar Yojna,
Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 9641 / 2017
Trilok Chand Nagal S/o Shri Hanuman, Aged About 45 Years, By
Caste Suthar, R/o 12th, B Road, Sardarpura, Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
(7 of 20)
S.B. Civil Writ Petition No. 9642 / 2017
Ganpat U. Nagal S/o Shri Ugma Ram, Aged About 45 Years, By
Caste Suthar, R/o Village/Post Pachodi, Tehsil Khinvsar, District
Nagaur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 9643 / 2017
Om Prakash Suthar S/o Shri Prabhu Ram Suthar, Aged About 42
Years, By Caste Suthar, R/o Atop Nagar Society, Bunglaow No.
A13, Bhatar Road, Surat (Gujarat).
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 9668 / 2017
1. Lakhpat Raj Kataria S/o Sampat Raj Kataria, aged about 48
years, R/o Dhram Narayan Ji Ka Hatha, Paota, Jodhpur.
2. Praveen Kataria S/o Sumer Mal Kataria, aged about 35
years, R/o Kataria bhawan, 2nd Pole, Mahamandir, Jodhpur.
3. Shrichand Jain S/o Gulab Chand Jain, aged about 40 years,
R/o 64-65, Sector-H, Pratap Nagar, Jodhpur.
4. Smt. Meena Parihar W/o Narendra Parihar, aged about 55
years, R/o 94-95, Subhash Nagar, Pal Road, Jodhpur.
----Petitioners
(8 of 20)
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 10448 / 2017
1. Piyush Kumar Sharda S/o Achal Das Sharda, Aged About 44
Years, R/o 48 Nehru Park, Jodhpur.
2. Manish Kumar Sharda S/o Achal Das Sharda, Aged About 48
Years, R/o 48 Nehru Park, Jodhpur.
----Petitioners
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 14357 / 2017
Maina Devi W/o Hari Prasad, Aged About 63 Years, By Caste
Agrawal, R/o Adaksar, Tehsil Kuchaman City, District Nagaur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
(9 of 20)
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 14358 / 2017
Maina Devi W/o Hari Prasad, Aged About 63 Years, By Caste
Agrawal, R/o Adaksar, Tehsil Kuchaman City, District Nagaur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector-III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 15063 / 2017
Bajrang Singh S/o Raghunath Singh, Aged About 60 Years, By
Caste Rajput, R/o Village Bagara, Tehsil & District Jalore, Presently
R/o B.J.S. Colony, Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Additional
District Collector- III, Jodhpur, District Jodhpur, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Pradeep Swami
For Respondent(s) : Mr. B.P. Bohra, Senior Panel Counsel for UOI
Mr. Mukesh Dave, Dy.GC
_____________________________________________________
(10 of 20)
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 22/01/2018 These writ petitions have been filed by the petitioners with the prayer that the respondent authorities be directed to redetermine the compensation and revise the award dated 20.11.2014 in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred as 'the Acquisition Act of 2013').
Brief facts of the cases, which are not in dispute, are that the land of the petitioners have been sought to be acquired by the Ministry of Road, Transport and Highways, Government of India, New Delhi (hereinafter to be referred as 'the MoRTH') for the purpose of building (widening to 4-lane with paved shoulder etc.), maintenance, management and operation of National Highway No.65 vide Notification No.S.O.2151(E) dated 12.07.2013 issued under Section 3A of the National Highways Act, 1956 (hereinafter to be referred as 'the NH Act of 1956') and objections from the interested persons were invited. Declaration of acquisition of land of the petitioners was issued under Section 3D of the NH Act of 1956 vide Notification No.S.O.1213(E) dated 05.05.2014. The Land Acquisition Officer issued the award dated 20.11.2014 while determining the compensation.
Learned counsel for the petitioners has argued that it is admitted position that though the award was passed on 20.11.2014 but the compensation was not paid to the petitioners (11 of 20) up to 31.12.2014. It is contended that after determining the compensation vide award dated 20.11.2014, the requisition for amount of award was sent and admittedly the same was received on 05.01.2015. It is argued that as per Section 24 of the Acquisition Act of 2013 and as per the clarifications issued by the MoRTH and the National Highways Authority of India, New Delhi (hereinafter to be referred as 'the NHAI') from time to time, the petitioners are entitled to get the compensation as per the provision of Acquisition Act of 2013 and not as per the provision of NH Act of 1956.
Learned counsel for the petitioners has also argued that the MoRTH has acquired total 28.72822 hectares of land but on 20.11.2014, the award was passed only for 3.41320 hectares of land and subsequent awards for acquisition of remaining 25.31502 hectares of land were passed on 16.01.2015, 10.04.2015, 27.08.2015 and 02.12.2015 and looking to this fact it is clear that the majority of landowners was not paid compensation on or before 31.12.2014, as per the guidelines and clarification issued from time to time, the petitioners are liable to get the compensation as per the provision of Acquisition Act of 2013, however, the respondents have illegally paid the compensation to the petitioners as per the provision of NH Act of 1956.
Learned counsel for the petitioners has, therefore, prayed that the writ petitions be allowed and the respondents be directed to redetermine the compensation and revise the award dated 20.11.2014 as per the provision of Acquisition Act of 2013.
(12 of 20) Per contra, learned counsel appearing for the respondents have vehemently opposed the prayer of the petitioners and argued that as a matter of fact the provision of Section 24 of the Acquisition Act of 2013 has no application in the case where the land has been acquired as per the provisions of NH Act of 1956.
It is argued that the Acquisition Act of 2013 came into force on 01.01.2014, however, by virtue of Section 105 (1) of the said Act, the provisions of the Act were not applicable to the NH Act of 1956 as the said Act is specified in the Fourth Schedule. It is contended that later on, the Central Government amended Sub-section (3) of Section 105 of the Acquisition Act of 2013 vide Ordinance dated 31.12.2014 and applied the provision of Acquisition Act of 2013 relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement specified in the Second Schedule and infrastructure amenities in accordance with the Third Schedule with effect from 01.01.2015. It is contended that with the amendment of Sub-section (3) of Section 105 of the Acquisition Act of 2013 only the First, Second and Third Schedules of the Acquisition Act of 2013 have been made applicable in the NH Act of 1956 and Section 24 of the Acquisition Act of 2013 has not been made applicable in the NH Act of 1956.
It is, therefore, contended that the contention of learned counsel for the petitioners to the effect that the petitioners are entitled to get the compensation, for the land acquired, as per the provision of Acquisition Act of 2013, is without any basis and the same is liable to be rejected.
(13 of 20) It is also contended on behalf of the respondents that since the award was passed prior to 01.01.2015, the provision of First, Second and Third Schedules of the Acquisition Act of 2013 cannot be applied in the cases of petitioners, hence, the demand of petitioners to redetermine the compensation and revise the award dated 20.11.2014 as per the provision of Acquisition Act of 2013 cannot be accepted.
It is argued by learned counsel for the respondents that the reliance placed by learned counsel for the petitioners upon the circulars/clarifications/guidelines/orders issued by the MoRTH and the NHAI is of no help to the petitioners because the MoRTH has issued new guidelines on 28.12.2017 in supersession of earlier circulars/clarifications/guidelines/orders and at present the guidelines dated 28.12.2017 holds the field. It is also argued by learned counsel for the respondents that as per the new guidelines dated 28.12.2017, the petitioners are not entitled to get any relief as prayed for in these writ petitions.
Heard learned counsel for the parties.
The MoRTH sought acquisition of land of the petitioners vide Notification No.S.O.2151(E) dated 12.07.2013 issued under Section 3A of the NH Act of 1956 and declaration of acquisition of land of the petitioners were issued under Section 3D of the NH Act of 1956 vide Notification No.S.O.1213(E) dated 05.05.2014 and thereafter the award was passed by the Competent Authority- cum-Land Acquisition Officer on 20.11.2014.
The respondents have not disputed that though the award of (14 of 20) compensation was passed on 20.11.2014 but the sanction of the compensation amount, as determined vide award dated 20.11.2014, was received on 05.01.2015.
Now the question arises before this Court whether the petitioners are entitled to get the compensation as per the provision of Acquisition Act of 2013 or not as they did not receive the amount of compensation, as determined vide award dated 20.11.2014 before 01.01.2015.
Before that, I would like to address the issue whether the provision of Section 24 of the Acquisition Act of 2013 can be made applicable in the matter where the land has been acquired under the NH Act of 1956.
The Acquisition Act of 2013 came into force on 01.01.2014, wherein Sub-section (1) of Section 105 of the Acquisition Act of 2013 provides that the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule. The NH Act of 1956 figured in the Fourth Schedule at Serial No.7.
The unamended provision of Sub-section (3) of Section 105 of the Acquisition Act of 2013 is as follows :-
"(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 (15 of 20) 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."
However, the Central Government vide Ordinance (No.9 of 2014) dated 31.12.2014 has substituted Sub-section (3) of Section 105 of the Acquisition Act of 2013, which reads as under:-
"(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 shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January 2015."
The provisions of Ordinance (No.9 of 2014) dated 31.12.2014 were continued further vide Ordinance (No.4 of 2015) dated 03.04.2015 and Second Ordinance dated 30.05.2015 (No.5 of 2015) and the same were valid up to 31.08.2015.
Subsequently, the Department of Land Resources, Ministry of Rural Development, Government of India issued the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015 vide Notification dated 28.08.2015. The said Order is reproduced below:-
"(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 1 st day of September, 2015.
(16 of 20) (3) The provisions of 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."
From the above, it is clear that the applicability of the Acquisition Act of 2013 has been given effect in respect of the enactment specified in Fourth Schedule including the NH Act of 1956 with effect from 01.01.2015.
However, it is to be noticed that as per Sub-section (3) of Section 105 of the Acquisition Act of 2013 (as amended), the provision of the Acquisition Act of 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 have only been applied in the NH Act of 1956 and Section 24 of the Acquisition Act of 2013 is not made applicable to the acquisitions made under the NH Act of 1956.
In view of the above, it is held that Section 24 of the Acquisition Act of 2013 has no application in the acquisition proceedings under the NH Act of 1956.
Be that as it may, in the cases in hand admittedly though the determination of compensation was made vide award dated 20.11.2014 but the compensation was not paid to the petitioners (17 of 20) up to 31.12.2014 or before 01.01.2015.
The MoRTH in its exhaustive guidelines dated 28.12.2017 has dealt with the issue and clarified that where the awards had been announced till 31.12.2014 but compensation had not been paid in respect of the majority of the land holdings under acquisition as on 31.12.2014, the compensation would be payable in accordance with the First Schedule of Acquisition Act of 2013. The relevant portion of the exhaustive guidelines dated 28.12.2017 issued by the MoRTH are reproduced hereunder :-
"No. NH-11011/30/2015-LA Government of India Ministry of Road Transport & Highways Transport Bhawan, 1, Parliament Street, New Delhi-110001 ________________________________________________________________ Dated, the 28th of December, 2017 To
1. Chief Secretaries to all State Governments/ Administrators of Uts;
2. The Additional Chief Secretary/ Principal Secretary/ Secretary, Public Works Departments of all State Governments/ Union Territories;
3. The Chairman, National Highways Authority of India, G-5&6, Sector-10, Dwarka, New Delhi-75;
4. The Managing Director, National Highways Infrastructure Development Corporation Ltd, PTI Building, Parliament Street, New Delhi- 110001.
Subject: Land acquisition under the National
Highways Act, 1956 - comprehensive
guidelines thereon.
Sir,
(18 of 20)
I am directed to say that the land required for National Highway Projects is acquired under the provisions contained in Section 3 of the National Highways (NH) Act, 1956. Pursuant to the enactment of the RFCTLARR Act of 2013 and its coming into force with effect from 01.01.2014, certain provisions of the 2013 Act became applicable to the other related Acts mentioned in the Fourth Schedule, including the NH Act, 1956 with effect from 01.01.2015 in terms of Section 105(3) of the RFCTLARR Act, 2013.
2. Accordingly, the Ministry of Road Transport & Highways (MoRTH) has issued various OMs/ Circulars on the subject from time to time, as mentioned at Annexure-1. Similarly, the Department of Land Resources, Ministry of Rural Development, have also issued guidelines/ orders on the subject, being the nodal Department of Government of India for the administration of RFCTLARR Act, 2013 and its application to the other related statutes mentioned in the Fourth Schedule of the Act ibid. These guidelines/ orders/ clarifications are mentioned in Annexure-2.
3. The entire issue has been examined afresh in view of the clarifications emerging in due course of time. The Ld. Attorney General of India has also been consulted on certain issues. Accordingly, it has been decided to issue these comprehensively revised guidelines in supersession of the guidelines issued hereinbefore. ... ... ...
4. .........
4.2 .........
4.3 .........
4.4 .........
4.5 .........
4.6 Date of determination of market value of land
(i) Another related but important question is regarding the date on which the market value of land is to be determined in cases where land acquisition proceedings had been initiated under the NH Act, 1956 and were at different stages as on 31.12.2014.
While there is no ambiguity regarding land acquisition proceedings initiated on or after 01.01.2015, this (19 of 20) question assumes significance in view of the financial implications in respect of cases where the process of acquisition was at different stages as on 01.01.2015.
(ii) Section 26 of the RFCTLARR Act stipulates that "the date of determination of market value shall be the date on which the notification has been issued under Section 11 (corresponding to Section 3 A of the NH Act)". Same was the position under the 1894 Act. This is further fortified from the provisions contained in Section 69(2) of the RFCTLARR Act. As such, it is clarified that the relevant date of determination of market value of land is the date on which notification under Section 3 A of the National Highways Act, 1956 is published.
(iii) By now, it is also a settled proposition that the First, Second and Third Schedule of the RFCTLARR Act, 2013 shall be applicable to the NH Act, 1956 with effect from 01.01.2015. As such, the following is clarified:
(a) All cases of Land acquisition where the Awards had not been announced under Section 3G of the NH Act till 31.12.2014 or where such awards had been announced but compensation had not been paid in respect of majority of the land holdings under acquisition as on 31.12.2014, the compensation would be payable in accordance with the First Schedule of the RFCTLARR Act, 2013.
(b) In cases, where the land acquisition process was initiated and award of compensation under Section 3G had also been announced before 01.01.2015 but the full amount of Award had not been deposited by the acquiring agency with the CALA, the compensation amount would be liable to be determined in accordance with the First Schedule w.e.f. 01.01.2015;
(c) In cases, where the process of acquisition of land stood completed (i.e. Award under Section (20 of 20) 3G announced by CALA, amount deposited by the acquiring agency with the CALA, and compensation paid to the landowners in respect of majority of the land under acquisition) as on or before 31.12.2014, the process would be deemed to have been completed and settled.
Such cases would not be re-opened.
(emphasis supplied) As observed earlier, the admitted position in these cases is that though the award was passed on 20.11.2014 but the sanction of compensation amount was received only on 05.01.2015 and, therefore, it is clear that the compensation to the petitioners was not paid on or before 31.12.2014 and in that situation as per the latest guidelines issued by the MoRTH on 28.12.2017, compensation would be payable to the petitioners in accordance with the First Schedule of Acquisition Act of 2013.
In view of the above discussions, these writ petitions are disposed of with the direction to the respondents to redetermine the compensation amount, awarded to the petitioners, and revise the award dated 20.11.2014 as per the First Schedule of the Acquisition Act of 2013 within a period of three months from the date of production of certified copy of this order.
There shall be no order as to cost.
Stay petition also stand disposed of.
(VIJAY BISHNOI),J.
Abhishek Kumar S.Nos.185 to 206