Gujarat High Court
Patel Pasabhai Amabhai & 32 vs Union Of India & 3 on 22 September, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/SCA/12438/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12438 of 2012
With
SPECIAL CIVIL APPLICATION NO. 12449 of 2012
With
SPECIAL CIVIL APPLICATION NO. 12444 of 2012
With
SPECIAL CIVIL APPLICATION NO. 9570 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9571 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9572 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PATEL PASABHAI AMABHAI & 32....Petitioner(s)
Versus
UNION OF INDIA & 3....Respondent(s)
==========================================================
Appearance In Special Civil Application Nos. 12438, 12444 and 12449 of
2012:
MR MIHIR THAKORE, SENIOR COUNSEL WITH MR DHAVAL M BAROT,
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ADVOCATE for the Petitioner(s) No. 1 - 33
MR CHINTAN DAVE, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 3
MR PRASHANT DESAI, SENIOR COUNSEL WITH MR RAVI KARNAVAT,
ADVOCATE for the Respondent(s) No. 1 - 2 , 4
Appearance In Special Civil Application Nos. 9570, 9571 and 9572 of
2013:
MR SAURABH G AMIN, ADVOCATE for the Petitioner(s) No. 1 - 3
MR CHINTAN DAVE, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 2
MR PRASHANT DESAI, SENIOR COUNSEL WITH MR RAVI KARNAVAT,
ADVOCATE for the Respondent(s) No. 1, 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 21 & 22/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This group of petitions is filed by individual land owners or occupiers whose lands are acquired by the Railway Ministry for the purpose of laying down the railway tracks for Dedicated Freight Corridor.
2. We may record basic facts from Special Civil Application No. 12438 of 2012. Petitioners herein are owners of various agricultural as well as non-agricultural lands situated in village Sardarpur, Dist: Banaskantha. In exercise of powers under Section 2 (37A) of the Railways Act, 1989, the Central Government issued a notification dated 19.02.2008 notifying the Western Dedicated Freight Corridor as a special railway project. The project entails laying down of railway tracks Page 2 of 33 HC-NIC Page 2 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT specially dedicated to a freight corridor between Mumbai and New Delhi.
2.1 On 10.02.2009, a notification was published under sub- section (1) of Section 20A of the Act declaring certain lands specified in the schedule to the notification as lands required for execution, maintenance, management and operation of the said special railway project. These included the lands situated in Akesan, Chadotar, Parpada and Moriya villages of Palanpur but did not include the lands of any of the petitioners. A further notification under Section 20E of Railways Act, 1989 was published on 23.02.2010 declaring that on the date of publication of such notification, the lands specified in the Schedule would vest absolutely in the Central Government. This notification included the lands of other villages in the surrounding areas in terms of the preliminary notification issued under sub-section (1) of Section 20A and not of the petitioners.
2.2 It appears that the authorities published a fresh notification under sub-section (1) of Section 20A of the Railways Act, 1989 on 06.02.2012 expressing the intention of acquiring different parcels of land for the said public purpose inviting persons interested to raise objections against the proposed acquisition. Under this notification, the lands of the present petitioners were covered. The petitioners, therefore, raised objections before the authorities on 26.03.2012. If we refer to one such specimen objection raised by Shri Daljibhai Nathabhai, it would show that in such communication it was pointed out that previously acquisition proceedings were initiated in which the lands of the said objector was not Page 3 of 33 HC-NIC Page 3 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT included. In that view of the matter, there would be no requirement of the present lands for the stated purpose of Dedicated Freight Corridor. The objector also pointed out an alternative, which according to him, would be more suitable and would also be a more economical option. He also raised legal issues contending that the acquisition of land can be done only through the procedure laid down under The Land Acquisition Act, 1894.
2.3 The objections of the objector were disposed of by an order dated 12.06.2012. The alternative suggested by the objector was not found viable. It was pointed out that in the public interest, the Railway Ministry has taken a decision. The earlier acquisition proceedings under which the lands of villages Moriya, Parpada, Antroli etc were to be acquired, was not pursued since a new line of alignment was proposed to ensure that the minimum lands of agriculturists need to be acquired.
2.4 At that stage, the petition was filed in which the petitioners had challenged the said notification dated 06.02.2012 proposing to acquire the lands and the order dated 12.06.2012 under which the objections of the land holders were rejected. During the pendency of the petition, the railway authorities proceeded further for acquiring the lands and issued a notification dated 28.01.2013 under Section 20E of the Railways Act, 1989 declaring that the lands mentioned in the Schedule to the notification would vest absolutely in the government free from all encumbrances which included the lands of the present petitioners. The petitioners, therefore, with the leave of the court, amended Page 4 of 33 HC-NIC Page 4 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT the petition and challenged the said subsequent notification also. These facts are common in Special Civil Applications No. 12438, 12449 and 12444 of 2012.
2.5 In Special Civil Applications No. 9570, 9571 and 9572 of 2013, the petitioners have challenged similar acquisition proceedings of the respondents undertaken for the same project. The distinction being that these lands are situated in a different area and in these petitions the question of abandoning the previous acquisitions by the railways and changing the alignment of the proposed corridor is not involved. In other words, these petitions do not raise a question of any factual or legal malafides in the railway authorities changing the alignment under which their lands came up for acquisition. However, these petitions raise identical other questions of law and facts as in the other group of petitions. Additionally, they also have raised the issue of non payment or delayed payment of compensation by the railway authorities. They pointed out that after issuing the acquisition notifications under Section 20E of the Act and passing of the awards, for a long time, the actual compensation was not paid to the land owners. Their contention, therefore, is that the inordinate delay in releasing the compensation should be sufficient to vitiate the acquisition proceedings. We would advert to these aspects of the matter at a later stage.
3. Appearing for the petitioners in the first group of cases, learned counsel Mr. Mihir Thakore raised two main contentions. First contention was that the entire alignment of the proposed railway line was changed without proper Page 5 of 33 HC-NIC Page 5 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT consideration and justification. The petitioners in this respect have raised the grounds of factual and legal malafides. Their contention is that after due deliberations previously the railway authority had initiated acquisition proceedings and in fact issued notification under Section 20E of the Act acquiring lands of a different area. The entire alignment was changed, previous acquisition was abandoned and fresh notifications under sub-section (1) of Sections 20A and 20E of the Act were published by which the lands of the present petitioners were acquired. In short, the case of the petitioners is that there was no need to change the alignment of the railway track.
3.1 The second contention of the counsel was that the acquisition could have been done in terms of Chapter IV-A of the Railways Act, 1989 only by the Government of India. In the present case, all steps are taken by the Railway Board which is not delegated the powers of the Central Government for the purpose of acquisition. It was pointed out that the original file pertaining to the present acquisition was not produced by the railways despite sufficient opportunities been given citing the reason that the file is lost. The respondents therefore failed to demonstrate that proper steps were taken by the authority competent to initiate and order acquisition of land under the said chapter.
3.2 Counsel relied on the following decisions:
(i) In case of K.N. Shukla vs. Navnit Lal Manilal Bhatt and Another reported in AIR 1967 SC 1331 in which the question arose whether prosecution can be instituted against a railway officer working under the Railway Page 6 of 33 HC-NIC Page 6 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT Board. The court held that such officer is not an officer under the Central Government and the Railway Board is an entity which is separate from the Central Government and derives its powers by way of delegation under notifications issued by the Central Government and the appellant who was appointed by the Railway Board therefore could be removed by the Railway Board and not by the Central Government. It was, therefore, held that the question of requiring sanction from Government before prosecution would not arise.
(ii) In support of the contention that satisfaction was arrived by the Ministry after ascertainment of relevant facts should be established by the respondents from the materials on record, the counsel relied on following decisions:
(a) Shri Radhy Shyam (Dead) through L.R.s and Others vs. State of U.P. And Others reported in (2011) 5 SCC 553;
(b) Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chenai and Others reported in (2005) 7 SCC 627;
(c) Anand Singh and Another vs. State of Uttar Pradesh and Others reported in (2010) 11 SCC 242;
(d) Narayan Govind Gavate and Others vs. State of Maharashtra and Others reported in (1977) 1 SCC 133.
4. Mr. Saurabh Amin, learned advocate appearing for the petitioners in second set of petitions in addition to adopting the contentions of Shri Thakore further submitted that there was much delay in paying or offering compensation to the Page 7 of 33 HC-NIC Page 7 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT petitioners. He pointed out the following facts :
(I) In Special Civil Application No. 9571 of 2013, the date of notification under Section 20A of the Act is 29.09.2008 and that under Section 23E is 02.09.2009 whereas the award passed under Section 20F is dated 23.08.2010 and 30.08.2010.
(II) Similarly, in Special Civil Application No. 9572 of 2013, the date of notification under Section 20A of the Act is 25.05.2009 and that under Section 23E is 02.03.2010 whereas the award passed under Section 20F is dated 09.02.2011.
4.1 Counsel submitted that despite awards being passed in both the cases in August 2010 and February 2011, compensation was not paid to the claimants right upto the year 2015. The railway authorities thereafter tendered the payment of compensation to the land owners during different dates. He submitted that some of the petitioners accepted such compensation and handed over the possession of the lands. The rest have refused to accept the compensation.
4.2 On the basis of such facts, drawing our attention to the provisions contained in the Railways Act, 1989, counsel submitted that an urgency in acquisition and payment of compensation for notified special railway projects is inbuilt in the scheme of the provisions. When the authorities delayed payment of compensation indefinitely after passing the award, such delay would vitiate the entire acquisition proceedings.
4.3 Counsel further submitted that the land losers also have
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not been granted benefit of the National Rehabilitation and Resettlement Policy, 2007 though the respondents agree that such policy is applicable.
4.4 In support of the contentions, counsel relied on the following decisions:
(a) Ramchand and Others vs. Union of India and Others reported in (1994) 1 SCC 44 in which the Supreme Court said that compensation as per the award passed under the Land Acquisition Act, 1894 had to be paid within reasonable time. In the said case, it was held that the delay in payment of compensation on the part of the authorities was not justified. However, in view of the fact that the land owners had approached the court after long delay and in the meantime much development had taken place on the acquired land, the court refused to quash the acquisition, instead awarded additional compensation at the rate of 12% per annum for the period of delay.
(b) In case of Vyalikaval Hoiusebuilding Coop. Society vs. V. Chandrappa and Others reported in (2007) 9 SCC 304 in which finding that the acquisition of land was vitiated on the ground of malafides and fraud, the Supreme Court refused to reject the petitions of the land owners merely on the ground that they had accepted the compensation.
5. On the other hand, learned counsel Shri Prashant Desai appearing for the railway authorities opposed the petitions.
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He contended that after following due procedure, the
acquisition of land was completed. He submitted that earlier acquisition proceedings were abandoned since an alternative alignment was found more suitable which would save substantial agricultural lands of the farmers and also entail lesser acquisition costs to the State. Along which line the railway track should be laid would depend on range of factors which can be examined only by the Executive after conducting proper inquiries. Counsel further submitted that the subjective satisfaction for the acquisition of the land was that of the Ministry. The Railway Board was merely executing the decision of the Ministry. He submitted that all the objections were placed before the Minister and disposed of after his concurrence. Since the original file concerning the present acquisition was not available, under our directions, the railway authorities had produced documents of acquisition of land for similar purpose in the same region. Relying on such documents, counsel submitted that in all cases proper procedure was followed by the Railway Ministry and the satisfaction for acquisition of land was that of the Ministry and not arrived by the Railway Board.
5.1 Regarding unpaid compensation to some of the land owners, counsel submitted that the Ministry had placed at the disposal of the Land Acquisition Officer sufficient funds for payment of compensation in the running account maintained by the said authority with the instruction for payment of compensation in terms of the awards. The Ministry had therefore discharged its duty of depositing compensation with the Special Land Acquisition Officer. In any case, delay in payment of compensation would not vitiate the acquisition Page 10 of 33 HC-NIC Page 10 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT proceedings. He further submitted that pending the petitions, number of land owners have accepted the compensation and voluntarily handed over possession of their lands under acquisition.
6. Mr. Chintan Dave, learned Assistant Government Pleader relied on the affidavit-in-reply dated 06.08.2013 of Bachubhai Babubhai Chaudhary, Special Land Acquisition Officer to contend that since the amount of compensation was not deposited with the Land Acquisition Officer by the acquiring body, the same could not be paid to the claimants.
7. At this stage, we may take note of the provisions of Chapter IV-A of the Railways Act, 1989. This chapter was inserted with effect from 31.01.2008 and carries the title "Land Acquisition For a Special Railway Project". Section 20A of the Act pertains to power to acquire land etc. Under sub-section (1) of Section 20A, where the Central Government is satisfied that for a public purpose any land is required for execution of a special railway project it, may, by notification declare its intention to acquire such land. 'Special Railway Project' is defined under section 2(37A) of the Act as to mean a project notified as such by the Central Government from time to time, for providing national infrastructure for a public purpose in a specified time-frame, covering one or more States or the Union territories. Under sub-section (2) of Section 20A every notification under sub-section (1) shall carry a brief description of the land and of the special railway project for which the land is intended to be acquired. Under sub-section (4) of Section 20A, the competent authority would cause the substance of the notification to be published in two Page 11 of 33 HC-NIC Page 11 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT local newspapers.
7.1 Section 20D of the Act pertains to hearing of objections. Under sub-section (1) thereof, any person interested in the land may, within thirty days from the date of publication of the notification under sub-section (1) of section 20A, object to the acquisition of land. Under sub-section (2) of Section 20D, the competent authority would give the objector an opportunity of being heard, either in person or by a legal practitioner and then take a decision either to allow or reject the objections. Under sub-section (1) of Section 20E, where no objection has been made within the time prescribed or where the competent authority has disallowed the objections which may have been received, the competent authority would submit a report to the Central Government and on receipt of such report, the Central Government would declare by publishing a notification that the land should be acquired for the purpose mentioned in sub-section (1) of Section 20A. As per sub-section (2) of Section 20E, on publication of the declaration under sub-section (1), the land would vest absolutely in the Central Government free from all encumbrances. Sub-section (3) of Section 20E provides that where in respect of any land, a notification may be published under sub-section (1) of section 20A, but no declaration has been published under sub-section (1) of section 20E within a period of one year from the date of publication of the notification, such notification shall cease to have any effect. Sub-section (4) of Section 20E provides that 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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7.3 Section 20F pertains to determination of amount payable as compensation, relevant portion of which reads as under:
20F. 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) The competent authority shall make an award under this section within a period of one year from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse;
Provided that the competent authority may, after the expiry of the period of limitation, if he is satisfied that the delay has been caused due to unavoidable circumstances, and for the reasons to be recorded in writing, he may make the award within an extended period of six months:
Provided further that where an award is made within the extended period, the entitled person shall, in the interest of justice, be paid an additional compensation for the delay in making of the award, every month for the period so extended, at the rate of not less than five percent. of the value of the award, for each month of such delay.
**** (6) If the amount determined by the competent authority under sub-section (1) or as the case may be, sub-section (3) 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 in such manner as may be prescribed. **** (9) In addition to the market-value of the land as above provided, the competent authority or the Page 13 of 33 HC-NIC Page 13 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT arbitrator, as the case may be,shall in every case award a sum of sixty per centum on such market-
value, in consideration of the compulsory nature of the acquisition.
7.4 Section 20H of the Act pertains to deposit and payment of amount of compensation. Relevant portion thereof reads as under:
20H. Deposit and payment of amount: (1) The amount determined under section 20F shall be deposited by the Central Government, in such manner as may be prescribed 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 pay the amount to the person or persons entitled thereto.
7.5 Section 20-I of the Act pertains to power to take possession. Under sub-section (1) thereof after vesting of the land under sub-section (2) of Section 20E of the Act and depositing the compensation by the Central Government with the competent authority under Section 20H(1), the competent authority would by issuing notice direct the owner or person in possession of the land to surrender or deliver possession of the land to him. Under sub-section (2) of Section 20-I, if such person refuses or denies to comply with such directions, the competent authority could take coercive measures. This, in short, is the scheme of the special provisions for acquisition of lands for the purpose of special railway projects made in Chapter IVA of the Act.
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8. Coming to the facts of the case, we may recall, initially the railway authorities had proposed a different alignment for which notification under Section 20A(1) of the Act was published on 10.02.2009 proposing acquisition of the lands of other villages and not of the lands of the petitioners. In fact, notification under Section 20E was also published on 10.02.2010 acquiring such lands. However, this acquisition was not pursued and it lapsed with passage of time. The Railway Ministry thereupon issued a fresh notification under sub-section (1) of Section 20A of the Act on 06.02.2012 which included the lands of the petitioners of the first set of petitions. They raised objections on or around 26.03.2012 and were also granted personal hearing by the competent authority. Such objections were disposed of by an order dated 12.06.2012. Thereupon, notification of acquisition of the lands was published on 28.02.2013. In the various orders passed by the competent authority, disposing of the objections of the land owners as well as in the affidavits filed before us the respondents have pointed out why the previous line of alignment was not suitable and the present proposed alignment would better serve the public purpose. For example, in an order dated 26.04.2012, disposing of objections of one of the land owners, it was pointed out that in the Palanpur - Gandhidham - Kandla railway line, near the Palanpur city, a sharp turn comes which is not conducive for handling high speed trains which will ply on the freight corridor. Further reasons were also cited why it would not be possible to take such line through the Palanpur city and due to which the proposed tracks would be constructed by providing a bye-pass which was decided after taking into account all technical aspects. It was also pointed out that Page 15 of 33 HC-NIC Page 15 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT even the previously proposed alignment was passing from a distance from the city. However, after due consideration a fresh notification has been issued by the Government. In the affidavit dated 20.12.2012 filed on behalf of the Railways, it is further pointed out that the alignment of the Dedicated Freight Corridor is fixed by experts after taking into consideration technical aspects and operational aspects. In the further affidavit dated 04.10.2013 filed on behalf of the Railways, it is pointed out that the Central Government decided to have a special project called Dedicated Freight Corridor from Mumbai - Delhi and from Delhi - Kolkata in order to ease the traffic of goods trains on the existing railway lines. This would have the advantage of reducing the burden on the existing railway lines which would be used mainly for the passenger trains. For such purpose, the Ministry of Railways through the Railway Board formed a company called Dedicated Freight Corridor Corporation of India Limited (DFCCIL) as a wholly Government owned company. It is pointed out that subsequent to issuing the notification dated 10.02.2009 under Section 20A(1) of the Act, the Railway Board in its meeting dated 10.11.2010, while considering the possible alternative alignments presented by DFCCIL to economize on the land acquisition directed conducting of a detailed survey of running the freight corridor alignment parallel to the existing railway line in Palanpur - Wamaj section as there was a likelihood of reduction of land acquisition from 920 hectares to 460 hectares. On the basis of such decision, feasibility report was prepared by DFCCIL suggesting alternative railway lines which would lead to drastic reduction of area under land acquisition saving suitable costs. It was found that as per the alternatives Page 16 of 33 HC-NIC Page 16 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT suggested, the land needed for acquisition could come down from 1021 hectares to 495 hectares which would result in saving of approximately Rs.443 crores in this sector. It is pointed out that such reports were sent by DFCCIL to the Ministry of Railways on 08.03.2011. The Railway Board required certain clarifications from DFCCIL which the said company provided under letter dated 18.03.2011. Considering all aspects of the matter, the Ministry of Railways conveyed to the DFCCIL approval of the revised alignment in Kalol - Iqbalgadh section parallel to the existing line under a letter dated 16.05.2011 copy of which is produced on record.
9. It can thus be seen that the decision to change the alignment of the proposed railway track was taken after due deliberations and consideration of all relevant aspects of the matter. Earlier acquisition was allowed to lapse since after issuing necessary notifications, the issue was reconsidered under the suggestion of DFCCIL. A feasibility report was called for. The report suggested an alternative line which would drastically reduce the required land for acquisition resulting into considerable saving of government revenue.
10. A subject as complex as along which line the railway track should be laid essentially would rest within the consideration of the government duly assisted by the experts in the field. Any such decision would rest on complex consideration of various aspects which under one umbrella expression we would refer to as 'feasibility'. The feasibility would include engineering aspects, the topology of the region, environmental concerns, the costs involved and range of other factors. Unless shown to be ex-facie, untenable or tainted by Page 17 of 33 HC-NIC Page 17 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT malafides, the decision of the competent authority based on relevant aspects of the matter cannot be tampered with. Necessarily the scope of judicial review of such decisions would be extremely narrow. We do not find that the decision to change the alignment of the railway line can be interfered with.
11. Coming to the question of proper procedure and the satisfaction of the appropriate authority in acquiring the land, we may peruse certain documents and pleadings on record. While doing so, we may bear in mind the contentions of the petitioners that the decision to acquire the land had to be that of the Government of India which requirement in the present case was not satisfied. The notification dated 06.02.2012 under sub-section (1) of Section 20A of the Act proposing the acquisition of the lands of the petitioners records that in exercise of powers under sub-section (1) of Section 20A, the Central Government is satisfied that the lands included in the Schedule to the notification is required to be acquired for public purpose of implementation, maintenance and management of the Western Dedicated Freight Corridor. Persons interested would be allowed to raise objections to the said proposal within thirty days. This notification carried a title as under :
"Ministry of Railways (Railway Board)".
12. Likewise, the notification of acquisition under section 20E of the Act dated 28.01.2013 also carried the same title of being issued by the Railway Ministry (Railway Board). The notification also carries a recital that upon receipt of the Page 18 of 33 HC-NIC Page 18 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT report of the competent authority the Central Government in exercise of powers under sub-section (1) of Section 20E, the lands as mentioned in the Schedule to the notification are acquired.
13. The first limb of the contention of the counsel for the petitioners was that such notifications were issued by the Railway Board and not the Ministry of Railways and therefore not valid. In this context, as pointed out by the respondents in the affidavit dated 20.12.2012 and the documents accompanying such affidavit, the President of India has framed rules for allocation of business for the Government of India in which the Ministry of Railways is allocated the subject pertaining to government railways and non government railways as inducted in the Schedule to the Railways Act and the Ministry of Railways conveys this decision through the authorised officers. It is further pointed out that the Ministry of Railways was thus acting through the Railway Board.
14. The President of India in exercise of powers under Clause (3) of the Article 77 of the Constitution of India promulgated rules called the Government of India (Allocation of Business) Rules, 1961 (hereinafter called as 'the Allocation of Business Rules'). As per Rule (2) of these rules, the business of the Government of India would be transacted in the Ministries, Departments, Secretariats and Offices specified in the first schedule to the Rules. Rule (3) of the Allocation of Business Rules pertains to distribution of subjects. Sub-rule (1) thereof provides that the distribution of subjects among the departments shall be as specified in the second schedule to the Rules and shall include all attached Page 19 of 33 HC-NIC Page 19 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT and subordinate offices or other organisations including public sector undertakings concerned with its subjects and sub-rules (2), (3) and (4) of the Allocation of Business Rules.
15. First Schedule to the said Rules includes Ministry of Railways at Item No. 28. The second Schedule pertaining to distribution of subjects among the Departments, in connection with the Ministry of Railways provides as under:
"Ministry of Railways (Rail Mantralaya) Railway Board (Rail Board)
1. Government Railways - All matters, including those relating to Railway revenues and expenditure, but excluding Railway Inspectorate and Railway Audit.
2. Non-Government Railways - Matters in so far as provision for control by the Ministry of Railways, Railway Board as provided in the Railways Act, 1989 (24 of 1989) or in the contracts between the Government and Railways, or in any other statutory enactments, namely, regulations in respect of safety, maximum and minimum rates and fares, etc. excluding the item of work allocated to the Department of Urban Development.
3. Parliament questions/matters regarding offences relating to pilferage of railway property and offences relating to crime on Government Railways and non-Government Railways.
4. Administration of pension rules applicable to Railway employees."
16. In exercise of powers conferred by Clause (2) of Article 77 of the Constitution of India, the President of India had promulgated the Authentication (Orders and other Instruments) Rules, 2002 (hereinafter referred to as 'the Page 20 of 33 HC-NIC Page 20 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT Authentication Rules'). These rules provide that all orders and other instruments made and executed in the name of the President shall be authenticated by the different officers of the Government of India mentioned in various clauses contained therein. Clause (38) thereof which is relevant for our purpose read with Rule 2 provides as under:
"(2) They shall come into force on the date of their publication in the official gazette. All Orders and other instruments made and executed in the name of the President shall be authenticated -
(38) in the case of orders and other instruments relating to the Ministry of Railways, by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary or an Under Secretary to, or by a/an Additional Member, Advisor, Executive Director, Director, Joint Director, or a Deputy Director of the Railway Board; or"
17. Combined reading of the said Rules would show that under the Allocation of Business Rules, the Railway Ministry has been assigned certain tasks and as per the Authentication Rules, all orders and other instruments made and executed in the name of the President in case of the Railway Ministry, would be by the officers mentioned in Clause (38) which includes Additional Member, Advisor, Executive Director, Director, Joint Director or a Deputy Director of the Railway Board. The issuance of the said two notifications under sub- section (1) of Section 20A and sub-section (1) of Section 20E of the Act by the Railway Board, therefore, need not be seen as exercise of the delegated powers. If the Railway Board was professing to exercise such delegated powers, of course, it would be necessary for the respondents to show such delegation. Essentially, the powers vest in the Central Page 21 of 33 HC-NIC Page 21 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT Government. By Allocation of Business Rules, such powers would be exercised by the concerned Ministry i.e. in the present case the Railway Ministry. By virtue of the Authentication Rules, any order or other instruments executed in the name of the President could be authenticated by the member of the Railway Board or its Director, Joint Director etc. Therefore, the decision for proposing and thereafter deciding the acquisition of lands in question was that of the Ministry of Railways. Merely because the notifications in question carry the title "Ministry of Railways (Railway Board)"
would not vitiate the entire process. Both the notifications, as noted, carry a recitation that it was the Government of India which was satisfied that the land should be acquired for the said public purpose. In a sense, therefore, mere authentication or publication of notification by the Railway Board, would not be in the capacity of exercising delegated powers. In that view of the matter, it is not necessary to trace the delegation of such powers by the Ministry on to the Railway Board.
18. This brings us to the second limb of the petitioners' arguments namely that at any rate this satisfaction was not arrived at by the Central Government after following the proper procedure. This issue has two aspects. One is with respect to the material concerning the present acquisition which as noted earlier could not be produced by the Railways on the ground that the files were not traceable. The second is the assessment of the documents produced by the respondents concerning similar acquisition of the same region to show that all such acquisitions are based on the satisfaction of the Railway Ministry.
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19. With respect to the first of these aspects, detailed affidavits have been filed pointing out that despite best efforts the original file could not be traced. For example, in an affidavit dated 08.04.2013 filed by the Deputy Director of the Railway Board, it has been stated that to trace the file, search was made in the Ministry of Railways and DFCCIL. DFCCIL, however, intimated that the file was not available. A search memo was, therefore, issued on 05.03.2013, copy of which is produced along with the said affidavit and such file could therefore not be produced. In the said affidavit, it is further pointed out that as per the uniform procedure, the decision is taken after satisfaction of the Ministry of Railways as also Ministry of Law and Justice. We may reproduce relevant portion of this affidavit :
"05. I state that in affidavit dated 15-03-2013 filed on behalf of respondent number 4 it has been categorically stated that the uniform procedure has been adopted in respect of making of the notifications under section 20 A of the Railways Act, 1989. I once again state that as per the procedure followed, Dedicated Freight Corridor Corporation of India Limited puts up the details of the land to be acquired with draft notification to Railway Board. Upon receipt of such draft notification, the said draft is sent for vetting to Ministry of Law and Justice through Ministry of Railways, Railway Board and after the Ministry of Law and Justice vet the draft notification the same is returned to the Ministry of Railways (Railway Board) for issuing the notification. I state that only after the Central Government in the Ministry of Railways (Railway Board) and Ministry of Law and Justice are satisfied, the approval to issuing notification is accorded by Executive Director (Land & Amenities) -I and thereafter the notification is published in Gazette."Page 23 of 33
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20. On 29.08.2017, after hearing the arguments for some time, noticing that the relevant files of the present acquisition were missing, the following direction was issued:
"Railway administration shall file a brief affidavit producing the copies of correspondence and documents showing that the decision to acquire the lands for the said project in other areas was taken by the Ministry. Along with such affidavit, the deponent may also produce the details of amounts deposited with the competent authority for acquisition of lands in question."
21. Pursuant to such directions, the Railway administration has filed affidavit dated 06.09.2017 along with which documents pertaining to the acquisition proceedings under Chapter IV-A of the Act of the surrounding lands have been produced. In such affidavit, it is also stated that various representations were received in respect of notifications concerned with the said project by the Ministry of Railways. Such representations were considered by the Ministry of Railways. It is stated that the same procedure was followed for acquisition in the present case also.
22. The documents annexed with the said affidavit would show that the notifications under Section 20A of the Act are published by the Ministry of Railways and signed by the Executive Director (Land and Amenities-1). The notifications carry a recitation that the Central Government after being satisfied that for the public purpose, the land, a brief description of which is contained in the Schedule, is required for the acquisition of special railway project for Western Dedicated Freight Corridor, the intention to acquire such land Page 24 of 33 HC-NIC Page 24 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT is declared. The ground work would be done by the Chief Project Manager, DFCCIL who along with the check list shall send proposal of the notification to the General Manager, DFCCIL, New Delhi who in turn would place it before the Executive Director, Railway Board. The proposal for publication of the notification would then be vetted by the Ministry before authorising publication thereof with amendments, if any. We have on record the extract of a file noting concerning one such notification of Section 20A of the Act. The concerned officer placed the draft Schedule received from DFCCIL regarding notification under Section 20A of the Act before the Director (Legislative Council) for his vetting. This file noting went through various stages of administrative hierarchy before it was finally approved by the Ministry which in turn was conveyed by the Director (Legislative Council), Railway Board stating that the draft notification has been scrutinized and necessary corrections have been carried out; the modified draft is formally in order, however, the Administrative Ministry may before issuance of notification satisfy that the draft as modified meets with their intention and requirement adequately.
23. It can thus be seen that the decision to publish the notification under sub-section (1) of Section 20A of the Act in similar cases of acquisition of lands was taken by the highest level of a decision making body. The proposal may have been mooted from DFCCIL, after the shifting of alignment of the railway line was cleared by the Railway Ministry, the final decision was taken by the Ministry itself. Signing and publication of the notification by the Director of the Railway Board was in exercise of the authority given to him under Page 25 of 33 HC-NIC Page 25 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT Clause (38) of Rule 2 of the Authentication Rules and was not in the nature of exercise of any delegated powers by the Railway Board. We are unable to accept the contention of the petitioners that for want of proper decision making at the level of the Ministry, the entire exercise must fail. We are conscious that in the present case we have to rely on the borrowed material of other files and the respondents have not been able to trace and produce the files concerning this very acquisition. However, in absence of any allegations of malafides and in view of the affidavits filed on behalf of the respondents pointing out that consistently the procedure followed in all acquisitions is the same, unfortunate as it may be, we are forced to rely on the other files.
24. Coming to the question of delay in payment of compensations, we may refer to the provisions of Chapter IVA. We may recall under sub-section (1) of Section 20A, the Central Government would declare the intention to acquire the lands giving opportunity to the persons concerned to raise objections. Such objections would be dealt with as provided in section 20D of the Act. Upon receipt of report by the competent authority in this regard, the Central Government would publish a notification under sub-section (1) of Section 20E acquiring the land. Sub-section (3) of Section 20E provides that if within one year from the date of publication of notification under sub-section (1) of Section 20A of the Act, no declaration under sub-section (1) of Section 20E is published, notification (under Section 20A(1)) shall cease to have any effect. The competent authority could determine the compensation to be paid for acquisition of such land provided in sub-section (1) of Section 20F. Under sub-section (2) of Page 26 of 33 HC-NIC Page 26 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT Section 20F, the competent authority would pass an award within one year from the date of the publication of the declaration and if no award is made within such period the entire proceedings for acquisition of land would lapse. As per the proviso to sub-section (2), such period could be extended by a maximum period of six months upon the competent authority being satisfied that the delay has been caused due to unavoidable circumstances by recording reasons in writing. Under such circumstances, however, as per the further proviso, the person entitled to receive the compensation would be paid additional compensation for delay at the rate of not less than 5% of the value of the award for each month of delay.
25. Chapter IV-A was inserted in the Railways Act, 1989 principally enabling quicker acquisition of lands for special railway projects. The acquisition of the land under the said Chapter was made comparatively easier and quicker as compared to the procedure required to be followed under the Land Acquisition Act, 1894. While doing so, the legislature also ensured that the proposals for acquisition do not linger on indefinitely. At important stages, therefore, time limits were provided. If after publication of notification under sub- section (1) of Section 20A, no declaration is made under sub- section (1) of Section 20E within one year, the notification under Section 20A(1) would lapse. Again the award determining compensation would be passed by the competent authority within one year from the declaration under sub- section (1) of Section 20E of the Act failing which the entire land acquisition proceedings would lapse. Such period could be extended up to a maximum period of six months, that too, Page 27 of 33 HC-NIC Page 27 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT by recording reasons in writing by the competent authority, if he is satisfied that the delay was caused due to unavoidable circumstances. Even in such a case, the compensation to be paid would be increased at the rate of not less than 5% of the value of the award for each month of delay. Thus, the power to extend the period is circumscribed by two factors. One is that the extension can be no longer than six months. Second is that the extension could be made only upon the satisfaction of the authority that the delay was caused due to unavoidable circumstances and the extension would come with a heavy cost of increased compensation.
26. It is true that the statute does not provide any further time limit after passing of the award by the competent authority for actual payment or tender of compensation to the land owner. Possession of the land of course can be taken only after payment of the compensation and not before. That still does not mean that the authorities can delay payment of compensation indefinitely. As noted, at all stages the statute envisaged a sense of urgency on the part of the State machinery in acquiring the land failing which even after the declaration under section 20E(1) of the Act for non passing of the award within time, the acquisition would lapse. The requirement of payment of compensation promptly after the award is passed by the competent authority is thus inbuilt and can be read into the scheme of Chapter IV of the Act of 1989. There is one more reason to take such a view. The statute does not provide for any interest on the compensation awarded. Thus, the compensation would be passed at the market rate prevailing at the time of acquisition. If such compensation were to be paid years later without interest, the Page 28 of 33 HC-NIC Page 28 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT same would be wholly inequitable.
27. The fact that the respondents have undoubtedly failed in making prompt payment of compensation to the petitioners of Special Civil Application No. 9571 and 9572 of 2013, is undisputable. We have noted that the awards were passed by the competent authority under Section 20F of the Act in such cases in August 2010 and 2011 respectively. The petitions were filed before the High Court in the year 2013. Till then no compensation was paid. Much later, during the pendency of these petitions, the compensation was offered to the petitioners on different dates. We are informed that some of the petitioners have accepted such compensation and handed over the possession of the lands to the Government. Rest of the petitioners who did not accept such late compensation, possession of their lands have also been taken over. According to the Railway Ministry, the sufficient amount which would cover the total compensation awarded by the competent authority was lying in the running account of the said authority with standing instructions to release the payment from time to time as per the awards. The competent authority however has taken a stand that for want of sufficient funds, the compensation could not be paid. This is essentially the dispute between the Central Government and the State Government agencies. Whatever be the reason, the fact remains that the claimants did not receive compensation for over four to five years after the awards were passed by the competent authority. The question is what would be the effect of such delay on the part of the respondents. One possibility of course could be declaring the entire acquisition as invalid which would have drastic adverse effect on the Page 29 of 33 HC-NIC Page 29 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT project itself. Literally and figuratively, the Dedicated Freight Corridor project would be derailed. The development which has already taken place in this respect at other locations would be rendered unusable till the railways, if so advised, could restart and complete the acquisition proceedings of the very same lands. Considering such factors and larger public interest, we would consider the alternatives of moulding the relief and ensuring that to the possible extent, the concerned petitioners could be compensated in terms of money for such delay.
28. The ultimate relief that we may grant would have to be bifurcated in two parts. For those petitioners who have so far not accepted the compensation and kept their challenge alive and those who have already, though belatedly, accepted the compensation and also handed over the possession of their lands under acquisition. For the former class, which we are informed comprises of approximately 18 petitioners, without disturbing the acquisition of their lands, we direct the competent authority to recompute and pass fresh award in terms of the statutory provisions which would include all statutory and incidental benefits as if the declaration under sub-section (1) of Section 20A of the Act is made on 01.09.2017. We are informed that these persons have already challenged the awards passed by the competent authority. Even after the fresh computation as provided hereinabove is done, they are not satisfied with the compensation that may become payable to them, it would be open for them to pursue their pending challenges before the Arbitrator who shall take notice of the further developments in this regard. The award on such deemed date of acquisition notification shall be Page 30 of 33 HC-NIC Page 30 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT passed within six months from the date of the receipt of copy of the order subject to co-operation from the concerned petitioners as well. The Railway administration shall as soon as possible after the award is passed deposit the entire amount of compensation with the competent authority who shall promptly pay over the same to the petitioners concerned.
29. For the latter class of the petitioners, who have accepted the compensation which was offered to them much later, the railway administration shall pay interest from the date of the award by the competent authority till actual payment of the compensation at the compounded rate of 10% per annum. We are conscious that the bank rates currently prevailing are not that high, nevertheless, we are persuaded to adopt a comparatively higher interest rate considering the gross delay exhibited by the respondents in paying the compensation and the ground realities that the prices of real estate escalate at a rate much faster than the bank rates. If the land losers were to acquire similar land in the same vicinity with similar advantages and the compensation paid to them is delayed by years together, the least that the State would be expected to offer to them is a fair increase in the compensation computed by the competent authority. In Special Civil Application No. 9570 of 2013, the petitioners have requested for the benefit of the National Rehabilitation and Resettlement Policy, 2007 which the respondents have assured would follow. This may be done as expeditiously as possible preferably within four months from the date of receipt of the copy of this order in case of the petitioners to whom such policy applies. We have tried our best to balance the equities and at the same time Page 31 of 33 HC-NIC Page 31 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT protect the larger public interest. There are bound to be rough edges and areas where better solution could be suggested, nevertheless, when such conflicting interests and equities are to be balanced, a certain amount of balancing act is always permissible.
22.09.2017
30. At this stage, learned counsel Shri Dhaval Barot for the petitioners in Special Civil Application Nos. 12438, 12444 and 12449 of 2012 requested that the interim arrangement provided by the Division Bench of this Court under an order dated 28.12.2016 may be continued till 10.11.2017 to enable the petitioners to approach the Supreme Court. We notice that under the said order dated 28.12.2016 passed in different Civil Applications filed by the petitioners in their respective petitions, the Division Bench had provided for following interim arrangement:
"(i) The respondent authorities are permitted to carry out survey only on two ends of the subject lands and the same should be confined to two metres (JCB width) on each side. They should see that least damage should be done.
(ii) The respondent authorities are permitted to place pre-cast concrete pillars in the above area where they have done the survey.
(iii) By permitting the respondents to carry out the above activity, no right will be claimed by either party because of this order.
(iv) Except what is permitted above, no further construction of any nature whatsoever shall be done on the subject lands till the final disposal of the main petitions."
This arrangement shall continue till 10.11.2017 in Special Civil Application Nos. 12438, 12444 and 12449 of 2012. Petitions are disposed of accordingly.
Page 32 of 33 HC-NIC Page 32 of 33 Created On Mon Oct 02 03:32:43 IST 2017 C/SCA/12438/2012 JUDGMENT (AKIL KURESHI, J.) (BIREN VAISHNAV, J.) divya Page 33 of 33 HC-NIC Page 33 of 33 Created On Mon Oct 02 03:32:43 IST 2017