Rajasthan High Court - Jodhpur
The Chairman Railway Board & Ors vs Balwant Singh & Ors on 14 December, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1501 / 2015
1. The Chairman Railway Board (Ministry of Railway) - Rail
Bhawan, New Delhi & Ors.
2. The Managing Director, Dedicated Freight Corridor
Corporation of India Ltd., 5th Floor, Metro Station Campus,
Pragati Maidan, New Delhi.
3. The Chief Project Manager, Dedicated Freight Corridor
Corporation of India Ltd., 42A/3, Civil Lines, Ajmer
----Appellants
Versus
1. Shri Balwant Singh S/o Shri Gulab Singh, age Balig, R/o
Village Kivarli, Tehsil Abu Road, District Sirohi
2. Shri Nain Singh S/o Shri Gulab Singh, age Balig, R/o Village
Kivarli, Tehsil Abu Road, District Sirohi
3. Shrimati Kalash Kanwar W/o Late Shri Padam Singh, age
Balig, R/o Village Kivarli, Tehsil Abu Road, District Sirohi
4. Shri Dharmendra Singh S/o Late Shri Padam Singh, age
Balig, R/o Village Kivarli, Tehsil Abu Road, District Sirohi
5. The Competent Authority & Sub Divisional Officer, Abu Road,
District Sirohi
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Raj Kamal Soni
For Respondent(s) : Mr. L.S. Jodha.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 14/12/2017 By the instant appeal, under Section 37(1)(b) of the Arbitration and Conciliation Act, 1996 (for short, 'Act'), appellants have challenged order dated 23rd of May 2015 passed by Addl. District Judge, Abu Road (for short, 'learned Court below') whereby learned Court below, while accepting application of the respondents under Section 34 of the Act, has partially (2 of 11) [CMA-1501/2015] rescinded/modified the arbitral award dated 11th of June 2012. The learned Court below, by the order impugned issued directions to the appellants to calculate compensation for the plants standing on acquired land in terms of circular dated 13 th of July 2006, issued by Directorate of Horticulture, Rajasthan, Jaipur.
The facts, apposite for the purpose of this appeal, are that the railway administration while resorting to Chapter IV-A of the Railways Act 1989, as amended w.e.f. 31st January 2008, proceeded to acquire land for special railway project. Pursuant thereto, during acquisition proceedings, objections were invited from interested persons by competent authority SDO, Mount Abu. The respondents, without resisting the acquisition of their agricultural land, joined issue with the appellants on quantum of compensation by urging that they are entitled for compensation of 1800 different trees of Lamon, Mango, Guava, Almond, Black Berry and Pomegranate. The competent officer, finally passed a composite award on 10th of March 2011 in respect of entire acquired land including the land of respondents situated in Khasra No.1315, 1316, 1317 and 1319 of village Kiwarali, Tehsil Abu Road, District Sirohi.
Feeling disgruntled with the compensation re-determined by the competent authority, respondents approached the Arbitrator - Divisional Commissioner, Jodhpur with a prayer to redetermine compensation for land and fruiting trees standing on the land in terms of Circular of the Horticulture Department dated 13 th of July (3 of 11) [CMA-1501/2015] 2006. The learned Arbitrator, upon consideration of the objections of respondents, declined to interfere with the award of competent authority determining compensation in toto. The learned Arbitrator, while rejecting the plea of respondents, placed heavy reliance on the provisions of Chapter V of the Rehabilitation and Resettlement Plan of 2009 for Dedicated Freight Corridor Project of Vadodra-Rewari under the caption "Resettlement Policy and Entitlements". The learned Arbitrator, in terms of general principles envisages under Para 5.2.1 for rehabilitation and resettlement, found that Project Affected Persons (PAPs) have been rightly awarded compensation for the lost assets at the replacement cost.
Non-interference by the learned Arbitrator gave a big jolt to respondents but the respondents continued their crusade for just compensation and invoked jurisdiction of the learned Court below by laying application under Section 34 of the Act. In the application, respondents reiterated their claim for adequate compensation for land and fruit yielding trees grown on the land in terms of Circular dated 13th of July 2006 issued by the Horticulture Department, Rajasthan. The respondents have also pleaded in their application under Section 34 of the Act that award of the competent authority as well as award passed by the Arbitrator is based on misreading of relevant clause contained in Para 5.2.1 of Chapter-V under the caption "Resettlement Policy and Entitlement". As per version of the respondents, both competent authority and Arbitrator were not kept abreast by the appellants with complete and unabridged text of relevant clause and the (4 of 11) [CMA-1501/2015] document, which was placed on record in this behalf, was not containing recitals "as per the entitlement matrix". The said discrepancy in the relevant clause was clarified on the basis of information solicited by other PAP under the Right to Information Act on 17th of July 2012. The informations solicited by another PAP, Shri Nain Singh, also contained criteria for determining compensation for standing trees and crops on the projected right of way, and for determining market value of perennial trees, guidelines of Horticulture Department are prescribed.
The application of respondents is contested by appellants by filing a detailed reply. It is pleaded in the return by the appellants that for determining compensation, the notification of Horticulture Department cannot be pressed into service as the same was issued anterior to the Rehabilitation and Resettlement Policy of 2007 and the Railways (Amendment) Act, 2008 (for short, '(Amendment) Act, 2008'). A plea is also sought to be raised that Circular dated 13th of July 2006 of Director, Horticulture is general in nature whereas the Rehabilitation and Resettlement Policy 2007 and the (Amendment) Act, 2008 being special legislation shall prevail over the general circular containing guidelines.
The learned Court below, thereafter, vide order impugned, rescinded/modified the award, passed by competent authority and the Arbitrator, by directing the appellants to determine and pay compensation to the respondents for fruit yielding trees standing on the acquired land in accordance with Circular dated 13 th of July 2006 of Horticulture Department, Rajasthan, Jaipur.
(5 of 11) [CMA-1501/2015] I have heard learned counsel for the parties and perused the materials available on record including the impugned order.
The crucial question, which requires judicial scrutiny in this appeal, is the relevant criteria for determining compensation in terms of the National Rehabilitation and Resettlement Policy 2007 (for short, 'Policy of 2007') and the Railways (Amendment) Act, 2008 for the fruiting trees existing on the land of respondents, which was acquired by the Railway Administration for its special project. Upon perusal of the materials available on record, it is borne out that the competent authority as well as Arbitrator were not apprised about the relevant clause of the Policy of 2007 and therefore both these authorities determined the compensation for the grown up fruiting trees on the acquired land by relying on an incomplete and abridged version of relevant clause containing following recitals:
"PAPs will receive compensation for loss assessment at replacement cost as per the entitlement matrix."
As a matter of fact, one of the PAPs made endeavour to obtain copy of relevant part of Chapter V under the caption "Resettlement Policy and Entitlement" under the RTI Act and while divulging information on 17th of July 2012, it has unearthed that Table 5.2.1, laying down general principles for the rehabilitation and resettlement for the project, contained following recitals in clause 5:
(6 of 11) [CMA-1501/2015] "5. PAPs will receive compensation for loss assessment at replacement cost as per the entitlement matrix."
That apart, the information divulged by railway administration under the RTI in Table 5.6.1 - Entitlement Matrix for DFC Project Based on RAA 2008 and NRRP 2007, at Point 'C'
- Loss of Trees and Crops, Serial No.6 contained following recitals:
Serial No. Application Definition of Entitlement Details Affected Persons 6 Standing Trees, Owners & Compensation at (1) 3 months' Crops on Project beneficiaries of market value advance notice to Right of way land affected parties to harvest fruits, standing crops and remove trees
(ii) Compensation to be paid at the rate estimated by
(a) the Forest Department for timber trees
(b) State Agriculture Extension Department for crops
(c) Horticulture Department for perennial trees
(d) Cash assistance to title holders including informal settlers/squatiers for loss of trees, crops and perennials at market value.
(7 of 11) [CMA-1501/2015] Now it is also desirable to examine the impugned order in terms of Chapter IV-A of the (Amendment) Act, 2008. In this behalf, Section 20-G is relevant prescribing criteria for determination of market value of land. For the purpose of appreciating lis involved in the matter, relevant is sub-section (5) of Section 20-G of the (Amendment) Act, 2008, which reads as under:
"(5) The competent authority may, for the purpose of determining the value of trees and plants, use the services of experienced persons in the field of agriculture, forestry, horticulture, sericulture, or any other field, as may be considered necessary by him."
Likewise, sub-section (8) of Section 20-F of the (Amendment) Act, 2008 is also relevant in this behalf.
Section 20-O of the (Amendment) Act, 2008 postulates application of the National Rehabilitation and Resettlement Policy, 2007 to persons affected due to land acquisition, which reads as under:
"20-O. Application of the National Rehabilitation and Resettlement Policy, 2007 to persons affected due to land acquisition.-- The provisions of the National Rehabilitation and Resettlement Policy, 2007 for project affected families, notified by the Government of India in the Ministry of Rural Development vide number F. 26011/4/2007- LRD dated the 31st October, 2007, shall apply in respect of acquisition of land by the Central Government under this Act."
(8 of 11) [CMA-1501/2015] A bare reading of the above quoted Section 20-O of the (Amendment) Act, 2008 makes it abundantly clear that Policy of 2007 is to be applied mutatis mutandis in respect of acquisition of land by the Central Government under the (Amendment) Act, 2008 and not at the whims and fancy of the Railway Administration. Thus, in totality, anything arbitrary or whimsical would obviously not be a fair, reasonable or objective determination of compensation within the meaning of Section 20-G(5) and 20-F(8) of the (Amendment) Act, 2008 as well as Policy of 2007 mandated under Section 20-O of the (Amendment) Act, 2008. If the impugned order is examined from that angle, then too there remains no room of doubt about its legality or propriety.
Therefore, in that background, if the impugned order is examined, then, it is rather difficult to visualize that learned court below has overstepped its jurisdiction, or committed any manifest error of law and fact in directing the appellants to determine compensation for the standing fruiting trees on the acquired land in terms of Circular dated 13 th of July 2006 issued by Horticulture Department, Rajasthan, Jaipur.
It is really strange that the Railway Administration, which is a wing of a welfare State, while resorting to compulsory acquisition of land for a special railway project under Chapter IV- A of the Act has not apprised the competent authority as well as learned Arbitrator complete and unabridged text of general (9 of 11) [CMA-1501/2015] principles for rehabilitation and resettlement for the project just to deprive the respondent land-owners to receive just compensation in terms of prescribed criteria. In that background, rescinding partially the arbitral award and modifying it by pressing into service complete and unabridged criteria for determination of compensation; fairly, reasonably or objectively, learned Court below has not committed any error, which warrants interference in exercise of appellate jurisdiction.
While examining arguments of learned counsel for the appellants on scope of judicial review of the arbitral award under Section 34 of the Act, suffice it to observe that land acquisition laws inspired by the principles of "Eminent domain" cannot be construed and interpreted to the detriment of a land-owner who has been divested of its land without payment of fair amount of compensation commensurating with the market value. Under Section 34 of the Act, Court can very well examine an arbitral award on the touchstone "Fundamental Policy of Indian Law".
Supreme Court in Oil & Natural Gas Corporation Ltd. Vs. Western Geco International Limited [(2014) 9 SCC 263] has widened the scope of judicial review with an arbirtral award under Section 34 of the Act by redefining the term "Fundamental Policy of Indian Law". The Court has further dilated on the very important aspect of the matter, viz., perversity or irrationality of the arbitral award, by romping in Wednesbury's principle of (10 of 11) [CMA-1501/2015] reasonableness, as an important facet for its judicial review. The Court held:
"26. What then would constitute the 'Fundamental policy of Indian Law' is the question. The decision in Saw Pipes Ltd. (supra) does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression "Fundamental Policy of Indian Law", we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the Fundamental Policy of Indian law. The first and foremost is the principle that in every determination whether by a Court or other authority that affects the rights of a citizen or leads to any civil consequences, the Court or authority concerned is bound to adopt what is in legal parlance called a 'judicial approach' in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the Court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of judicial approach in judicial and quasi judicial determination lies in the fact so long as the Court, Tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bonafide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a Court, Tribunal or Authority vulnerable to challenge. In Ridge v. Baldwin [1963 2 All ER 66], the House of Lords was considering the question whether a Watch Committee in exercising its authority under Section 191 of the Municipal Corporations Act, 1882 was required to act judicially. The majority decision was that it had to act judicially and since the order of dismissal was passed without furnishing to the appellant a specific charge, it was a nullity. Dealing with the appellant's contention that the Watch Committee had to act judicially, Lord Reid relied upon the following observations made by Atkin L.J. in [1924] 1 KB at pp. 206, 207:
(11 of 11) [CMA-1501/2015] "Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
"29. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury's principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes where ever the same are available."
On overall objective analysis of the matter, no legal infirmity much less perversity is forthcoming from the impugned order so as to exercise power of judicial review under appellate jurisdiction of the Court.
In view of forgoing discussion, I feel dissuaded to interfere with the impugned order. Consequently, instant appeal fails and same is hereby dismissed.
(P.K. LOHRA),J.