Rajasthan High Court - Jodhpur
Gopa Ram 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. 12746 / 2017
Gopa Ram S/o Bhanwara Ram, Aged About 39 Years, R/o Village
Nimbali Brahmnan, District Pali.
----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 Sub
Divisional Officer, Rohet, Pali, District Pali, 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. 10539 / 2017
Rishabh S/o Rajeev Khullar, Aged About 32 Years, R/o 23, Shyam
Nagar, Pal Link, 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 Sub
Divisional Officer, Rohet, 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. 10540 / 2017
Smt. Sucheta W/o Rajeev Khullar, Aged About 52 Years, R/o 23,
Shyam Nagar, Pal Link, Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
(2 of 15)
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Sub
Divisional Officer, Rohet, 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. 10541 / 2017
Smt. Sucheta W/o Rajeev Khullar, Aged About 52 Years, R/o 23,
Shyam Nagar, Pal Link, 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 Sub
Divisional Officer, Rohet, 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. 10543 / 2017
Rishabh S/o Rajeev Khullar, Aged About 32 Years, R/o 23, Shyam
Nagar, Pal Link, 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 Sub
Divisional Officer, Rohet, Jodhpur, District Jodhpur,
Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.)
----Respondents
(3 of 15)
S.B. Civil Writ Petition No. 11533 / 2017
Gopa Ram S/o Lumba Ram Patel, Aged About 49 Years, R/o Basni
Silawata, Luni, 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 Sub
Divisional Officer, Rohet, Pali District Pali Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 12793 / 2017
Vineet Lohiya S/o Damodar Lohiya, Aged About 34 Years, R/o 39-
A, Nehru Park, 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 Sub
Divisional Officer, Rohet, 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. 13981 / 2017
Tara Mehta W/o Shri J.S. Mehta, Aged About 65 Years, By Caste
Oswal, R/o House No. 93, Bhagar Ki Kothi, Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
(4 of 15)
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.)
3. The Prescribed Authority (Land Acquisition) and Sub
Divisional Officer, Rohet, Pali, District Pali, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.)
----Respondents
S.B. Civil Writ Petition No. 13982 / 2017
Tara Mehta W/o Shri J.S. Mehta, Aged About 65 Years, By Caste
Oswal, R/o House No. 93, Bhagat Ki Kothi, 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 Sub
Divisional Officer, Rohet, Pali, District Pali, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 14631 / 2017
Jain Sons Buildcon Pvt. Ltd. Through the Director Jitendra Bohra
S/o Shri Sohanlal Jain, Aged About 42 Years, By Caste Jain, R/o
House No. 21, Prem Nagar, Kheme Ka Khunwa, Pal 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 Sub
Divisional Officer, Rohet, Pali, District Pali, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
(5 of 15)
S.B. Civil Writ Petition No. 14639 / 2017
Jain Sons Buildcon Pvt. Ltd. Through the Director Jitendra Bohra
S/o Shri Sohanlal Jain, Aged About 42 Years, By Caste Jain, R/o
House No. 21, Prem Nagar, Kheme Ka Khunwa, Pal 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 Sub
Divisional Officer, Rohet, Pali, District Pali, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 14641 / 2017
Jain Sons Buildcon Pvt. Ltd. Through the Director Jitendra Bohra
S/o Shri Sohanlal Jain, Aged About 42 Years, By Caste Jain, R/o
House No. 21, Prem Nagar, Kheme Ka Khunwa, Pal 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 Sub
Divisional Officer, Rohet, Pali, District Pali, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 15440 / 2017
Gogi Devi W/o Shri Kheema Ram, Aged About 60 Years, R/o Mogra
Khurd, Tehsil Jodhpur, District Jodhpur.
----Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Road,
Transport and Highway, Government of India, New Delhi.
(6 of 15)
2. The Chief Engineer (National Highway), Public Works
Department, Government of Rajasthan, Jaipur (Raj.).
3. The Prescribed Authority (Land Acquisition) and Sub
Divisional Officer, Rohet, Pali, District Pali, Rajasthan.
4. The Project Director and Executive Engineer, Public Works
Department, National Highway Block, Pali (Raj.).
----Respondents
S.B. Civil Writ Petition No. 15441 / 2017
Kheema S/o Jairoop, Aged About 60 Years, R/o Mogra, Tehsil
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 Sub
Divisional Officer, Rohet, Pali, District Pali, 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
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 22/01/2018 These writ petitions have been filed by the petitioners under Article 226 of the Constitution of India with the common prayer for granting the following reliefs in each of the writ petitions :-
It is, therefore, most respectfully prayed on behalf of the petitioner that the writ petition may kindly be allowed (7 of 15) and by an appropriate writ, order or direction :-
A. The respondents may kindly be directed to comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 so as to the compensation, rehabilitation and resettlement in accordance with the First Schedule, Second Schedule and Third Schedule of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
B. In the alternative the respondents may kindly be directed to follow all the provisions given under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to which the petitioner is entitled to;
C Any other appropriate writ, order or direction which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner.
D. Cost of the writ petition may kindly be awarded to the petitioner.
The facts, which are not in dispute, are that the Ministry of Road, Transport and Highways, Government of India, New Delhi (hereinafter to be referred as 'the MoRTH') sought to acquire the land belonging to the petitioners and others for the purpose of building (widening to 4-lane with paved shoulder etc.), maintenance, management and operation of National Highway No.65 vide Notifications dated 12.07.2013 and 26.02.2014 issued under Section 3A of the National Highways Act, 1956 (hereinafter to be referred as 'the NH Act of 1956'), whereby the Sub Divisional Magistrate, Rohat was appointed as Competent (8 of 15) Authority and Land Acquisition Officer (hereinafter to be referred as 'the CALA'). Thereafter, the declaration of acquisition of land of the petitioners were issued under Section 3D of the NH Act of 1956 vide Notifications dated 26.02.2016 and 16.06.2014 respectively. The final awards under Section 3G of the NH Act of 1956 were issued on 31.07.2014 and 17.09.2014 respectively.
The case of the petitioners is that since the compensation were not paid to the land holders in respect of the majority of the land under acquisition on or before 31.12.2014, the petitioners are entitled to get the compensation as per the provisions of Section 24 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').
It is also contended that as per the circulars/orders/guidelines 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 compensation for acquisition of the land of the petitioners is to be determined as per the First Schedule of the Acquisition Act of 2013.
Learned counsel for the petitioners have reiterated that since the land owners, in respect of the majority of the land under acquisition, were not paid compensation on or before 31.12.2014, the petitioners are entitled to get the compensation as per the provision of the Acquisition Act of 2013 by virtue of Section 24 of the Acquisition Act of 2013.
It is also argued that as per the circulars/orders/guidelines (9 of 15) issued by the MoRTH and the NHAI from time to time, the compensation in lieu of acquisition of land is to be determined as per the First Schedule of the Acquisition Act of 2013.
Per contra, learned counsel appearing for the respondents MoRTH and PWD have vehemently opposed the writ petitions and argued that as a matter of fact the provisions of Section 24 of the Acquisition Act of 2013 are not applicable to the acquisition under the NH Act of 1956. It is contended that vide amendment in Sub- section (3) of Section 105 of the Acquisition Act of 2013 only the First, Second and Third Schedules are made applicable to the NH Act of 1956 and, therefore, the contention of learned counsel for the petitioners to the effect that the petitioners are entitled to get the compensation as per the provision of Acquisition Act of 2013 by virtue of Section 24 of the said Act, is having no force.
It is further argued by the learned counsel for the respondents that the compensation, in lieu of land acquired by the petitioners, cannot be determined as per the First Schedule of the Acquisition Act of 2013 because prior to 31.12.2014, the final awards were passed and the MoRTH as well as PWD had already deposited the whole compensation amount with the CALA before 31.12.2014.
It is specifically contended that in lieu of the notifications issued under Section 3A of the NH Act of 1956 on 12.07.2013 and 26.02.2014, the whole amount of compensation was deposited with CALA on 01.10.2014 and 31.10.2014 respectively.
Learned counsel for the respondents have, therefore, prayed (10 of 15) that the compensation, in lieu of land acquisition of the petitioners, is not liable to be determined as per the First Schedule of the Acquisition Act of 2013 because the whole compensation amount was deposited with CALA before 31.12.2014. Learned counsel for the respondents have also relied on the latest comprehensive guidelines dated 28.12.2014 issued by the MoRTH in supersession of the earlier guidelines.
Heard learned counsel for the rival parties. First of all, I deal with the question whether Section 24 of the Acquisition Act of 2013 is applicable to the NH Act of 1956 or not.
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 (11 of 15) 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.
(12 of 15) (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.
Now the question comes whether the determination of compensation in lieu of the acquisition of land of the petitioners is to be determined as per the First Schedule of the Acquisition Act (13 of 15) of 2013 or not.
As stated earlier, it is not in dispute that the final awards in respect of the notification issued under Section 3A of the NH Act of 1956 were issued under Section 3G of the NH Act of 1956 prior to 31.12.2014 and whole amount of compensation was deposited by the MoRTH and the PWD with the CALA before 31.12.2014.
In all the writ petitions the petitioners have also admitted that they have received the compensation as determined in the final awards prior to 31.12.2014.
The MoRTH has also issued comprehensive guidelines on 28.12.2017 on this point, which is reproduced hereunder :-
(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 (14 of 15) 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 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.
As per Clause-(b) of the above referred guidelines, it is clarified that where the award of compensation under Section 3G of the NH Act of 1956 had 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 of Acquisition Act of 2013.
It is further clarified by Clause-(c) of the above referred guidelines that where the compensation had been deposited by the acquiring agency with the CALA and the compensation amount paid to the land owners in respect of the majority of the land under acquisition on or before 31.12.2014, the acquisition process would be deemed to have been completed and settled and such cases would not be reopened.
As stated earlier, in all these writ petitions, the petitioners have admitted that they have received the compensation as determined in the awards passed under Section 3G of the NH Act of 1956 and they have not disputed this fact that they received (15 of 15) the said compensation amount prior to 31.12.2014.
Though, assertion is made on behalf of the petitioners in these writ petitions as well as during the course of argument that the majority of the land owners was not paid the compensation before 31.12.2014, yet no material is produced on record to prove the said fact. Only the information, said to have been received under the Right to Information Act, is furnished in some of the writ petitions, however, from the said information, it cannot be gathered that compensation was not paid to the majority of the land owners on or before 31.12.2014.
Moreover, it is not in dispute that the acquiring authority i.e. MoRTH and the PWD had already deposited the whole amount of compensation with the CALA before 31.12.2014 and, therefore, it cannot be said that the compensation was not paid before 31.12.2014. The disbursement of compensation to the land owners is the function of the Land Acquisition Officer and if there is any laxity on the part of the Land Acquisition Officer in disbursing the compensation amount, the acquiring authority cannot be held liable for the said inaction.
In view of the above discussions, I do not find any merit in these writ petitions and the same are hereby dismissed.
There shall be no order as to cost.
Stay petition also stand dismissed.
(VIJAY BISHNOI),J.
Abhishek Kumar S.Nos.207 to 220