Madhya Pradesh High Court
Hokamsingh vs Competent Authority And Sub Divisional ... on 1 May, 2018
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.P.No.8652/2018
(Hokam Singh Vs. Competent Authority & Others)
Indore, Dated: 01.05.2018
Shri Devashish Singh, learned counsel for the
petitioner.
Shri Koustubh Pathak, learned GA for the
respondents/State.
Heard on the question of admission.
The petitioner has filed the present petition being aggrieved by the award dated 18.12.2015, passed by the Competent Authority and SDO, Tehsil - Tarana, District Ujjain under the provisions of the National Highways Act, 1956 and order dated 29.12.2017, passed by the SDO and Land Acquisition Officer (Revenue) Tehsil - Tarana, District Ujjain whereby representation has been rejected.
The petitioner is owner of Survey No.162/1/1/2 (Area 0.200 hectares), situated in Village Rojwas, Tehsil - Tarana, District Ujjain. Government of India issued a notification in exercise of power conferred under Section 3 of National Highways Act, 1956 for acquisition of the land of various survey numbers situated in Village Rojwas, Tehsil - Tarana, District Ujjain for widening of the National Highway Number 3 from Shivpuri to Dewas (516.315KM to 532.420 KM). For the aforesaid purpose, the land of various survey numbers measuring 1.004 hectares of Gram Rojwas were liable to be acquired and 2 for which a notification under Section 3A of the National Highways Act 1956 was issued on 26.02.2011. Thereafter, notification under Section 3B was issued w.e.f 19.12.2012. Thereafter, objections were invited from the land owners. That the notification under Section 3D (2) was issued on 18.12.2013 whereby all the lands have vested into the Government of India free from all encumbrances. The notification was published in the local newspaper but the authorities did not receive any objection. The land acquisition officer has assessed the compensation for the irrigated land @ Rs.22,40,000/- per hectare and for unirregated land @ Rs.14,00,000/- per hectare. After assessment, the amount of compensation has directly been deposited in the bank account of owners through E- transaction. The Competent Authority-cum-SDO has passed the final award on 18.12.2015.
The amount has been credited in the account of the petitioner as well. In the year 2017, the petitioner submitted an application before the competent authority i.e. SDO that he ought to have been paid the compensation for his land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the "Act of 2013") because the acquisition of land under the NHAI Act has been brought within the purview of of Act of 2013 by virtue of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and 3 Resettlement (Removal of difficulties) Order 2015 w.e.f 01.09.2015 (in short "Order 2015") which is reproduced below:
"The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015 And whereas, the Central Government considers it necessary to extend the benefits available to the land owner under the RFCTLARR Act to similarly placed land owners 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 land owners 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 land owners;
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.
(2) It shall come into force with effect from the 1 st day of September, 2015.
2. 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."
The SDO vide order dated 29.12.2017 has rejected such representation, hence, present petition before this 4 Court.
Learned counsel for the petitioner submits that Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of difficulties) Order 2015 came into force w.e.f 01.09.2015, therefore, the SDO ought not to have passed the award on 18.12.2015 under the National Highways Act, 1956. He further submits that under Section 24 of the Act of 2013 all the pending proceedings of the land acquisition are liable to be continued under the provisions of Act of 2013. In support of his contention, he has placed reliance over the judgment passed by the Bombay High Court in Vishwasrao Dattatray Kachare and Others Vs. Union of India and Others, reported in AIR 2017 BOMBAY 120 & judgment passed by the Karnataka High Court in case of Lalita and Anr Vs. Union of India and Ors, reported in 2003(1) KarLJ 406.
In the present case, the notification under Section 3 was issued on 15.04.2011 and further consequential notifications were issued on 19.12.2012 and 18.12.2013. Entire proceedings were initiated and completed under the provisions of National Highways Act, 1956, therefore, the SDO has passed the award on 18.12.2015 under the said Act. For passing the award under the Act of 2013 there has to be preliminary notification under Section 11 of the Act. Section 24 applies to the proceedings pending under the Land Acquisition Act, 1894. Section 24 specifically 5 provides that despite anything contained in this Act in any case of land acquisition proceedings initiated under the Land Acquisition Act 1894 shall be deemed to have lapsed in certain cases. There is no provision of lapse of the proceedings under the National Highways Act, 1956, therefore, Section 24 would not apply in the proceedings pending under the National Highways Act, 1956.
The Division Bench of Bombay High Court in case of Vishwasrao Dattatray Kachare and Others (supra) has held that the applicability of said Order 2015 can be considered by an Arbitrator in a proceedings under Section 3 G (5) of National Highways Act, 1956. It has been further held that it would be for the Arbitrator to determine whether the application would be governed by the said notification dated 20.08.2015 issued by the Central Government. Relevant para of the aforesaid judgment is reproduced below:
"12. The 2013 Act was brought into force with effect from 1 January 2014 repealing the Land Acquisition Act, 1894. In the present context, Section 105 of the 2013 Act would become relevant, as it provides that the provisions of 2013 Act shall not apply to the enactments relating to the land acquisition as specified in the Fourth Schedule in which N.H.Act finds a place in the Fourth Schedule at item
7. However, sub-section 3 of Section 105 of the 2013 Act provides that the Central Government is empowered to issue a notification within one year from the date of commencement of the 2013 Act relating to the "determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules", as 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 6 not reduce the compensation or dilute the provisions of the 2013 Act relating to compensation or rehabilitation and resettlement as may be specified in the notification.
13. On behalf of the National Highways Authority, it is brought to our notice that the Central Government by a notification dated 20 August 2015 issued under sub-section (3) of Section 105 of the 2013 Act has issued an order called as the "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order,2015", brought into force with effect from 1 September 2015. By clause (2) of the said order, the 2013 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', is made applicable to all cases of land acquisition under the enactments specified in the Fourth Schedule in the said Act. By virtue of this order, the provisions of the 2013 Act pertaining to determination of compensation and other benefits as provided in the First Schedule, Second Schedule and the Third Schedule are made applicable to the N.H.Act.
14. On the above background, the legal consequence is that in regard to those applications where enhancement of compensation is sought for and the same are pending consideration of the arbitrators and to which the provisions of the above notification become applicable, then the provisions of the 2013 Act in regard to determination of compensation in accordance with the First Schedule as also in regard to rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule would become applicable in regard to acquisition under the N.H.Act. In such case the Arbitrator as appointed under Section 3G(5) of the N.H.Act, apart from the factors as provided under sub-section (7) of Section 3G, would also be required to take into consideration the provisions of the 2013 Act as made applicable by virtue of the said 2015 Order as issued under sub- section (1) of Section 113 of the 2013 Act.
However, it would be for the arbitrator to determine whether a particular application would be governed by the said notification dated 20 August 2015 issued by the Central Government."
Therefore, the order of 2015 would not apply in the 7 present case as the acquisition proceedings have already been culminated and the award has been passed under the National Highways Act, 1956.
In view of the above discussion, no relief can be granted to the petitioner in this writ petition. He may claim the benefit of order of 2015 before the Arbitrator in a proceedings under Section 3 G of the National Highways Act.
Petition is dismissed in limine.
(VIVEK RUSIA) Judge jasleen Digitally signed by Jasleen Singh Saluja Date: 2018.05.03 16:24:53 +05'30'