Gujarat High Court
Shobhna Ravjibhai Patel vs Union Of India on 20 December, 2018
Author: A.G.Uraizee
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/9734/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9734 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 9755 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
===========================================================
=====
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 ?
================================================================
NARENDRAKUMAR AMBALAL PATEL
Versus
UNION OF INDIA
================================================================
Appearance:
MR SAURABH G AMIN(2168) for the PETITIONER(s) No. 1,2,3,4
MR DHAVAN JAYSWAL AGP(1) for the RESPONDENT(s) No. 2
MR RAVI KARNAVAT(1650) for the RESPONDENT(s) No. 1
===============================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 20/12/2018
Page 1 of 31
Downloaded on : Sat Aug 31 23:06:47 IST 2019
C/SCA/9734/2018 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.G.URAIZEE)
1. These two petitions are filed by the land owners, whose land are acquired by the Railway Ministry for the purpose of execution, maintenance, management and operation of Special Railway Projects, Western Dedicated Freight Corridor in the District of Anand in the State of Gujarat.
Following common substantial reliefs are prayed for in the petition:
(A) Your Lordships may be pleased to declare that the acquisition has lapsed and / or is vitiated by the inordinate delay of 6/7 years in making payment and taking possession of the land.
(B) Yours Lordship may be pleased to issue a writ of certiorari or a writ in the nature of certiorari and / or any other writ, direction or order and thereby be pleased to quash and set aside the impugned acquisition proceedings initiated by notification Nos.1375(E), S.O. 522 (E) and award dated 9/2/2011 bearing Award No.10/2010-2011/Anand/Runn and S.O. 1675(E), S.O. 685(E) and award dated 25.10.12 bearing award No.10/2010-
2011/Anand/Runn/1;
(C) Pending admission hearing and final disposal of this petition, your Lordships maybe pleased to stay implementation, operation and execution Page 2 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT of the impugned acquisition proceedings initiated by notification Nos.1375(E), S.O. 522(E) and award dated 9/2/2011 bearing Award No.10/2010-2011/Anand/Runn and S.O. 1675(E), S.O. 685(E) and award dated 25.10.2012 bearing award No.10/2010- 2011/Anand/Runn/1 and direct / restrain the respondents, their agents and servants from entering upon the lands of the petitioners;
(D) Ex-parte ad interim relief in terms of para-C
above may please be granted.
2. Shorn-off unnecessary details, relevant facts for the disposal of these two petitions cane be summed up as under:
3. The petitioners are the owners of the various agricultural lands situated in village: Runn, Ta. Sojitra, Dist. Anand. In exercise of powers conferred by clause (1) Section 20-A of the Railways Act, 1989, the Central Government issued Notification and declared certain lands, which are specified in Schedule annexed thereto as the lands required for execution, maintenance, management and operation of Special Railways Project, Western Dedicated Freight Corridor in the district of Anand, in the State of Gujarat.
Relevant details in respect of each petition are as under:
Special Civil Application No.9734 of 2018:
25.05.2009 A Notification bearing No.1375(E) under S. 20A of the Railways Act was published in the official gazette. 02.03.2010 A Notification under S. 20E of the Act, bearing No.522(E) was published in the official gazette.Page 3 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019
C/SCA/9734/2018 JUDGMENT 09.02.2011 An award was made, whereby the market value of the
land was determined at the rate of Rs.17 per Sq. Mtr. 28.08.2015 By an order under S. 13 of LARR Act, 2013, the Central Government extended the provisions of compensation as contained in 1st, 2nd and 3rd Schedule of the said Act to and made applicable to the Act contained in 4th Schedule which includes the Railways Act. Thus, the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 became applicable to the acquisitions under the Railways Act for special project.
09.05.2016 The Railway (Amendment) Act, 2008 was repealed by the Repealing and Amendment Act, 2016 No.23 of 2016. 24.04.2018 After an inordinate delay of 7 years, the respondent served notices to the petitioners offering compensation for the first time.
07.05.2018 In response to the aforesaid notices dated 24.04.2018, the petitioners had informed the respondents that by lapse of time being an inordinate delay of 7 years since passing of an award dated 09/02/2011, the said acquisition has lapsed and further requested them to abide by the order passed in SCA No.9572/13.
Special Civil Application No.9755 of 2018:
20.07.2011 A Notification bearing No.1675(E) under S. 20A of the Railways Act was published in the official gazette. 29.03.2012 A Notification under S. 20E of the Act, bearing No.685(E) was published in the official gazette. 25.10.2012 An award was made by respondent No.2 under S.20F(1), whereby the market value of the land was determined at Page 4 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT the rate of Rs.61 per Sq. Mtr.
25.08.2015 By an order under S. 13 of LARR Act, 2013 was passed whereby the provisions of the said act have been extended to and made applicable to the Acts contained in 4th Schedule which includes the Railways Act. Thus, the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 became applicable to the acquisitions under the Railways Act for special project. 09.05.2016 The Railway (Amendment) Act, 2008 was repealed by the Repealing and Amendment Act, 2016 No.23 of 2016. 24.04.2018 After an inordinate delay of 7 years, the respondent served notices to the petitioners offering compensation for the first time.
07.05.2018 In response to the aforesaid notices dated 24.04.2018, & the petitioners had informed the respondents that by 18/20.06/2018 lapse of time being an inordinate delay of 7 years since passing of an award dated 09/02/2011, the said acquisition has lapsed and further requested them to abide by the order passed in SCA No.9572/13. 28.06.2018 The respondents cane with police, entered upon the lands of the petitioner and have started chopping down the trees.
4. We have heard learned advocate Mr. Saurabh G. Amin for the petitioners as well as learned senior counsel Mr. Kamal Trivedi, assisted by learned advocate Mr. Ravi Karnavat for the respondent No.1 have submitted gists of their arguments in the form of written submissions. We are deemed it expedient to reproduce these written submissions in verbatim instead of recording oral arguments:
Page 5 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019C/SCA/9734/2018 JUDGMENT
5. Brief written submissions of the petitioners in Special Civil Application Nos.9734 of 2918 and 9755 of 2018:
1. That the declaration under S. 20E was published on 02/03/2010. The period of 1 year for making the award expired on 01/03/2011. The extendable period of 6 months expired on 30/09/2011. No award as envisaged under S. 20F(2) was made during the said period and hence by virtue of mandatory provision, section 20-F(2) of the Railways Act, 1989 (herein after referred to as 'the Act'), the entire proceeding for acquisition has lapsed.
A. Section 20 F(2) mandates that the competent authority 'shall' make 'an award', within a period of one year from the date of publication of the declaration and if no 'award' is made within that period, the entire proceeding for acquisition of land 'shall' lapse. The proviso, extends the period for another six months subject to the conditions that (1) the delay has been caused due to unavoidable circumstances, (2) the reason are recorded in writing and (3) for the extended period of six months, the entitled person is paid an additional compensation @ not less than 5% of the value of the award, for each month of such delay.
A conjoint reading of section 20-F(2) with section 20- G(1), (4), (5), (6), shows that 'award' as mandated in S. 20 F(2) must be a single award determining the market value of the land as well as the market value of building/superstructure/other assets attached to the Page 6 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT land, including trees, plants and crop. In Hansaben Prafullbhai Desai v/s Union of India (order dated 7,11/4/2016 passed in SCA 13389/2013 Para 17,22,25), the division bench of this Honourable Court has held that the term "land" as used in various provisions of Chapter IV of the Railways Act, includes things attached to earth or anything permanently fastened to earth.
B. S. 20-O provides that the provisions of National Rehabilitation and Resettlement Policy, 2007 for project affected families, shall apply in respect of acquisition of land by the Central government under this Act. By legislation by incorporation, the provisions contained in the said policy, have been made a part of the Railways Act, 1989. It is not in dispute that the petitioners were also entitled to payment under this policy as well. In absence of any separate mechanism prescribed under the Act, and considering the purpose and object of the Act and the time limits prescribed under S. 20E(3) and S. 20F(2) of 1 year each for making declaration under S. 20-E and award under S. 20F, it is evident that the compensation which includes benefit under NRRP has to be computed in the award under section 20 F (2), failing which, section 20-O would be rendered otiose and nugatory C. In the present case, the declaration under section 20-E was made on 2/3/2010. By virtue of section 20 F(2), the award determining the market value of land, structure, things attached to the land, trees and NRRP, Page 7 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT 2007 was required to be made within one year, on or before 1/3/2010 or within the extended period of six months thereafter being 30/9/2010. As admitted by the respondents in the reply at page 40, paragraph 4, the competent authority passed one partial award on 09/02/2011, wherein (pg. 18) it is recorded that award for NRRP and compensation for structures, trees and crop as per statement of Annexure 11 (B), (C), (D) and (E) will be declared separately later on. 2nd award, computing benefits under the NRRP, 2007 was made on 12/3/2014 and a 3rd award, determining market value for the structures, wells and trees (things attached to land) on 16/10/2014. The competent authority has no powers to make partial awards therefore the award dated 09/02/2011 is not an award envisaged under the law. The 2nd and the 3rd award were beyond the period of limitation.
A side by side comparison of the notices for compensation dated 07/10/2013 (page 57 to 55) with the notices dated 25/5/2015 (page 64 - 67), shows that what was determined in the award dated 7/10/2013 was a mere Action ( in some cases less than 10%) of the total amount of compensation determined by the subsequent awards.
The Act mandates one single award within the period of limitation of 1 year extendable to a maximum of 6 months and does not envisages or provide for making partial awards for different components of the land and that too beyond the period of limitation. Thus the so-
Page 8 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019C/SCA/9734/2018 JUDGMENT called incomplete/partial awards dated 9/2/2011,
12/3/2014 and 16/10/2014 cannot be considered as "an award" mandated under section 20 F (2). Thus no award has been made within the period of limitation and therefore by virtue of section 20- F(2) the entire proceeding for the acquisition of the land has lapsed.
In support of the above contention, the petitioners rely upon (2011)11 SCC 100 (Dedicated Freight Corridor Corporation of India Vs. Subodh Singh) para 13
2. Alternatively For the land covered under S. 20A notification dated 25.05.2009 and declaration under S. 20E dated 02/03/2010, the computation of compensation was not completed till 16/10/2014. The compensation determined at market value prevailing as on 25.05.2009 was offered for the first time on 24.04.2018 ie. after 9 years. This in-ordinate, unexplained delay in computing the market value, making the award and paying the compensation has vitiated the acquisition. With passage of time, dwindling value of money, increasing inflation and exponential increase in price of land, it has become impossible for the petitioners to purchase new land. The compensation has become illusionary, cannot be considered as payment of compensation at market value. It thus violates the Constitutional and Statutory guarantee of payment of compensation at market value as contained in the second proviso to Article 31A of the Constitution of Page 9 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT India and section 20-F(8) of the Act, vitiating the entire acquisition proceeding and the same deserves to be struck down on this ground alone.
A. The second proviso to Article 31A of the Constitution of India mandates that the law relating to acquisition of land, building or structure must provide for payment of compensation at a rate which shall not be less than the market value thereof. Section 20 F(8) of the Act provides for payment of compensation at the market value of land prevailing on the date of publication of notification under section 20A and not as prevailing on the date of the award. To bring the Act in compliance of Article 31A, section 20E(3) mandates that the declaration under section 20E shall be made within 1 year from the date of publication of notification under section 20A, failing which the notification shall lapse. Section 20F (2) provides that the award determining the compensation for the land, building and structure shall be made within a period of 1 year from the date of declaration under section 20E, failing which the entire proceeding for acquisitions shall lapse. By virtue of the proviso to section 20F (2), the period for making the award can be extended for a further period of six months only if the delay has been caused due to unavoidable circumstances and that too at a hefty price of payment of additional compensation at the rate not less than 5% of the value of award per month of the delay. Section 20 H(1) requires Central Government to deposit the compensation amount immediately after the same is determined and Page 10 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT subsection 2 of section 20 H mandates that the competent authority shall pay the amount to the persons entitled as soon as may be after the amount has been deposited. It is pertinent to mention that under the Act, the land vests in the central government as soon as the declaration under section 20 E is published and the Act does not provide for payment of any interest from the date of notification under section 20 A to the date of award or payment of compensation. Conjoint reading of the provisions contained in Chapter IV of the Act shows that the Act envisages quick completion of acquisition proceeding and payment of compensation to the person entitled within a period of 2 ½ years from the date of notification under section 20A so as to ensure that the constitutional guarantee of payment of compensation at market value is preserved. The Act does not provide for any time limit for making payment of the compensation. However the intention of the legislature is clear that the same has to pay paid within a reasonable period, which considering the scheme of the Act has to be within six months from the date of award.
B. In the present case the notification under section 20A was published on 25/5/2009. The declaration under section 20 E was made on 2/3/2010. The determination of compensation was not completed till 16/10/2014 and the same was offered for the first time only on 24/04/2018. Thus the delay has rendered the compensation illusionary and cannot be considered as payment of compensation at "market value" as Page 11 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT guaranteed under Article 31A of the Constitution of India and section 20 F (8) of the Act.
In support of the above contention, the petitioners rely upon:
1. Mohd. Siddiq versus Union of India (judgment dated 21&22/09/2017 in Special Civil Application Nos.9570 of 2013 to 9572/2013 (para 24- 29)
2. Ramchand and Others Vs. Union of India and others reported in 1994(1) SCC 44 (Para 2-5, 14,24,25)
3. Though the notification under section 20A was published on 25/5/2009, the compensation was not determined till 16/10/2014 and was not offered till 24/4/2018. As per the admission of the Railways in the reply at page 42, para 15, the work orders were given only in the year 2016 and the actual work started only in June 2018. The entire chronology of facts established beyond doubt that as on the date of publication of notification under section 20A, ie. 25/5/2009 there was no present or real requirement of land for the project.
The determination and offer of compensation was delayed as there was no intention to pay the compensation. The notification was issued only with a view to peg down the prices to a distant past so as to freeze the market value as of 2009. The same amounts to colourable exercise of powers and the acquisition proceedings deserve to be set aside on this ground alone.
Page 12 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019C/SCA/9734/2018 JUDGMENT In support of the above contention, the petitioners rely upon:
1994(1) SCC 44 (Para 14,25)
4. The respondent Railways, claim that the compensation was offered on 15/10/2013. However the Competent Authority who is saddled upon the duty by virtue of S. 20H(2) to pay the compensation as soon as the same is deposited, has chosen not to file a reply and has not stated on oath, when, how and to whom the notices dated 07/10/2013 were served and how the compensation was offered on 15/10/2013. For the reasons stated in the rejoinder at page 97 para 6, the said notices where never offered or served upon the petitioners. In any case what was mentioned in the notices dated 15/10/2013 was a mere fragment of the total compensation payable to the petitioners and the same can never be considered as offer of compensation envisaged under the Act. The 1st award was made on 9/2/2011, whereas according to the respondents themselves the compensation determined thereunder was offered for the first time on 15/10/2013, ie. after a period of 2 years and 8 months.
The inordinate, unexplained delay itself vitiates offer and therefore also there was no offer of compensation is envisaged under the Act. The compensation determined by the award dated 12.03.2014 and 16.10.2014 was more than 3 times the amount computed under the first award. Thus the partial offer of compensation is no offer in the eyes of law.
Page 13 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019C/SCA/9734/2018 JUDGMENT The notices dated 25/5/2015 were never offered to or served upon the petitioners and the respondents have not produced any proof of the same. It is pertinent to note that in the reply, it is not the case of the respondents that the said notices were offered to the petitioners and they refused to accept the same. The petitioners have stated in rejoinder that no such notices were ever offered to the petitioner in person or by post. Even otherwise such compensation was payable to the petitioner in the year 2011, the delay of more than four years in offering the compensation has rendered the same illusory and does not amount to offer of compensation at market value as envisaged in the Act.
5. The respondents would contend that possession of the land was taken by Talati cum Mantri by possession receipts dated 18/6/2016 and handed over to the DFCCIL. The possession receipts are signed by 2 witness, who are both employees of DFCCIL. The actual and physical possession was never taken on the land. It is recorded in the possession receipts that the land owners were not present and had not surrendered the possession and therefore the same was taken ex-parte by the Talati cum Mantri. By virtue of section 20-I, the competent authority or the Talati cum Mantri have no powers take ex-parte possession of the land. If the landowners refuse or fail to surrender possession, the Competent Authority has to approach the collector and only the collector has the power to enforce surrender of possession. Thus the possession of land was never Page 14 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT taken, false possession receipts are prepared in the office, only to misguide the proceedings and defeat the rights of the petitioner.
6. There is no delay in filing the present petition for the following reasons:
A) That acquisition proceedings had lapsed on 01/03/2011 by virtue of section 20F (2). The lapsing is by virtue of the Act and is automatic on expiry of the period of limitation. No declaration of the Court is required for the same. Thus no cause of action arose for filing the petition earlier.
B) The subsequent 2 awards were made in the office of the Competent Authority and were never communicated to the petitioners. For the sake of arguments even if it is presumed that the notices offering compensation dated 07/10/2013 and 25/5/2015 were served upon the petitioners, offer of compensation under lapsed proceedings does not give rise to any cause of action as the same does not violate any right of the petitioner.
C) The cause of Action arose for the first time on 26/6/2018 when the respondent with the help of police attempted to disturb the possession of the petitioners and immediately the petition was filed on 27/6/2018.
D) Presuming for the sake of arguments, that acquisition had not lapsed, then the acquisition proceedings were not completed, compensation was Page 15 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT not paid, possession was not taken and therefore it was a continuing cause of Action. The delay if any in filing the petition has to be seen in conjunction with the delay in completing the acquisition proceedings so doing, there is no delay or latches on the part of the petitioners. The petitioners rely upon 1994(1) SCC 44 (para 16).
E) That there is no period of limitation for the court to exercise powers under Article 226. The claim made by the petitioners is legally sustainable, the illegality complained of is manifest and cannot be sustained on the ground of latches only. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the respondents cannot claim to have a vested right in the injustice done by them. The cause of action for filing the petition has in fact arisen because of the delay on the part of the respondents in completing the acquisition proceedings and hence there is no delay and the delay if any deserves to be condoned.
In support of the above contention, the petitioners rely upon (2013)1 SCC 353.
6. The respondent no.1 most respectfully files it is written submission as under:-
1. It is most respectfully submitted that the present petition pertains to land acquisition for special railway project namely Western Dedicated Freight Corridor. This Page 16 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT project is of the national importance and intends to move goods traffic from Jawaharlal Nehru Port Trust, Mumbai to Dadri, Uttar Pradesh (NCR). By implementation of this project not only cargo will move fast but also due to the spare capacity being available on the Indian Railway tracks the passengers carrying trains will also be benefited.
2. The land is acquired in accordance with the provisions contained in Chapter-IVA of the Railways Act, 1989 after issuing notification under section-20A. The notification under section-20A was made on 25.05.2009.
After hearing of the objections etc in accordance with the provision contained in section-20D, the declaration for vesting of land u/s 20E was made on 02.03.2010.
3. It is respectfully submitted as per the scheme of the Railways Act, 1989 pertaining to land acquisition for special railway project, the award for determining the amount payable as compensation is to be made within the period of one year from the date of publication of the declaration u/s 20E.
4. It is further provided in the Act that the award can be declared within extended period of 6 months. The award determining the amount of compensation for land was declaration 09.02.2011 i.e. within the stipulated period of one year from the date of publication of declaration under section-20E.
5. It is submitted that by way of the award date 09.02.2011, the Competent Authority has determined a Page 17 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT total sum of Rs 2,78,558.19 including 60% solatium as contemplated under section-20F to be payable for land acquisition. The solatium is to be awarded on value of hand only.
6. It is respectfully submitted that sufficient funds have already been made available at the disposal of Competent Authority.
7. It is submitted that as on 28.02.2011 the bank account had a credit balance of Rs.1,04,17,690. Subsequently more funds were brought in bank account on 31.03.2014. The bank account had balance of Rs 19,51,46,753.00. Such certificates to this effect are provided as annexure-R6 along with the affidavit in reply on page no. 86 to 88.
8. Thus the Railway Authorities have complied with requirements of under section-20H which pertains to deposit and payment of amount. The Competent Authority thereafter issued notices offering amount of compensation of PAPs including petitioners.
9. It is further submitted that notices the requesting PAPs to collect the amount of compensation were sought to be served through Talati-cum-Mantri at relevant point of time. Few specimen copies of such notices issued in the year 2013 one annexed to affidavit in reply.
10. The Talati on 15.10.2013 reported that the PAP has declined to accept the notices for disbursal of amount of compensation. An endorsement to this effect is made on Page 18 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT reverse side of notice. Such notices are on record at page no.55 to 62. Thereafter the Talati-cum-Mantri has on date 15.10.2013 made a report of public meeting wherein villages who attended the meeting have appended their signatures on reverse. The report clearly state that the villages have refused to accept the compensation. Such report appears on page no. 51 to 52.
11. It is respectfully submitted that thereafter notices for taking compensations also were issued to the PAPs on various dates.
12. It is respectfully submitted that since the amount is already deposited with Competent Authority, Ex-parte possession of those lands is taken wherever the PAPs have not accepted the amount of compensation or not handed over the possession of land voluntarily.
13. Thus from the aforesaid it is clear that the answering respondent have complied with the statutory requirements as well as have made an attempt on various dates to disburse the amount of compensation. The petitioners and other villagers have elected not to accept such compensation.
14. The petitioners have approach the Hon'ble High Court after the respondent went ahead with a view to carry out further work on the land acquired on the ground that the award though made along ago, no compensation has been given to them and now of all sudden the respondent are carrying out the activities without following due process of law. Such petition was Page 19 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT filed after a delay of almost 7 years.
15. The award has been made within the stipulated time period and the respondent were ready to willing to complete the acquisition process by making payment within the reasonable time after the award under section- 20F is made. However the amount could not be disbursed due to the approach the petitioners and others similarly situated persons.
16. It is grievance of the petitioners that the respondent has not declared the total award in a single award therefore the award pronounced on 09.02.2011 is no award as contemplate in the Railways Act, 1989 and therefore by virtue the statutory provision contain in the Act the land acquisition proceedings have lapsed due to subsequent awards made beyond stipulated period.
17. The respectful submission of the respondent is that such a contention deserves to be rejected because the Act contemplates acquisition of land and determination of the amount of market value of the land in a particular manner. The respondent relies upon provision contained in Section-20A, Section-20F and Section-20G in this regard. The provision contains in under section-20G (1) (2) & (3) categorically provides for mechanism to determine the land value. Even the Railways Act, 1989 places reliance upon the provision of the Indian Stamp Act 1899 as well as the sale price for same type of land situated village or vicinity.
18. It is respectfully submission of respondent such Page 20 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT provision makes it is abundantly clear that the market value of the land is to be determination referred to particular documents. The provision of Indian Stamp Act, 1899 do not contemplate the value of structure while specifying the land value. The Jantri price simply indicate price of land only.
19. Provision by way sub section 4, 5 & 6 to Section- 20(G) have been incorporated to determine the market value of Structure, Trees and Standing Crops which are attached to the land. Apart from this provision of under Section-20F within Section-20A, Section-20B, Section-20C and Section-20D contemplates that while determining the amount of compensation the Competent Authority has to take into consideration the market value of land on the date of publication of notification under section- 20A and the damage if sustained by the person interested at the time of taking possession of land by reason of severing of such land or in case there is damage injuriously affected the other immovable property in any manner, the award has to take care of such situation clearly these situations indicated a possibility of supplementary award as the damage etc. would be only after award u/s 20(F) is made for land acquired.
20. Thus the mechanism contemplates more than one award indicating that the award for Structure, Trees and Standing Crops etc. can be pronounced on different dates. In fact there is no prohibition for such methodology.
Page 21 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019C/SCA/9734/2018 JUDGMENT
21. There is no time limit prescribed in respect of the award determining to compensation for Structure, Trees & Standing Crops attached to the earth. Whereas a specified time limit is prescribed for determination and declaring the award in respect of land. In fact, the value of Trees, Structure and Standing Crop etc. is considered as on the date of drawing Panchnama for Trees, Structures etc. and is not related to date of notification under 20A which is considered for determining value of hand as specifically provided in s/20F(8) (a).
22. Thus the Competent Authority has rightly declared the award in piecemeal basis wherein the award for land has been declared within the stipulated time period and the award pertaining to Structure & Trees etc has been declared subsequently.
23. It is submitted that the notices for payment was issued prior to declaration of award calculating compensation in respect of Structures & Trees etc.
24. It will clear that within the reasonable period of 2 years the amount of compensation with respect to land was offered to the petitioners and other similar situated persons. Thus the acquisition is not vitiated in any manner whatsoever. In fact the petitioners have refused to accept the compensation.
25. The provision to under section-20F nowhere suggest that amount determined under the NRRP 2007 are to be disbursed along with the amount of compensation pertaining to land. In fact the provision of NRRP 2007 has Page 22 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT been made applicable by virtue of under section 20(O) of the Railways Act, 1989 separately. The arguments of the petitioners that since the amount contemplated in NRRP 2007 have not been disbursed along with amount of compensation of land, the acquisition is bad in eyes of law. The process for land acquisition is completed within the stipulated time period. In the absence of any provision which provides such an interpretation it cannot be assumed that the benefits of NRRP 2007 are to be extended or declared along with the award for land.
26. Thus the procedure adopted by the Competent Authority is not in conflict with provision of the Railways Act, 1989 in any manner whatsoever. The acquisition is therefore required to be upheld.
27. The petitioners claim that the amount of compensation has been offered to them belatedly however, two of the petitioners have approach the learned arbitrators for re-determination of the amount of compensation in the year Feb. 2012 itself. Even the PAPs of same village through different notifications u/s 20A have accepted compensation in 2015-16. Therefore, it cannot be said that compensation is offered to petitioners belatedly.
28. Thus it is clear that the petitioners were aware entire scenario.
29. Thus in the respectfully submission of answering respondent, the present petition is abuse & misuse of due process of law and therefore the petitions to be Page 23 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT deserves to be rejected.
7. The petitioners have raised serious grievance about award passed by the competent Authority. According to the petitioners, Section 20G of the Railways Act, 1989, provides criterion for determination of market value of land. In sub- section 4 of said Section contemplates that in determining the market value of the building and other immovable property attached to the land or building which are to be acquired, the competent Authority may use the services of a competent engineer or any other specialist in the relevant field, as may be considered necessary by the competent authority. It is therefore, their contention that the said award is not permissible since the competent Authority has determined the compensation in respect of the land, which is no award in the eye of law.
8. To backup his submissions, learned advocate for the petitioners placed reliance on Unreported decision in the case of Hansaben Prafulbhai Desai Vs. Union of India decided by the Division Bench of this Court in Special Civil Application No. 13389 of 2013 dated 07-11.04.2016, wherein the Division Bench has held in para 22 as under:
"In this context, one can easily envisage a situation where for variety of reasons, the land needed for a public purpose is not required to be acquired through compulsory acquisition proceedings, nevertheless, certain rights subsisting on land vesting in private individual have to be extinguished before the land could be put to a use for the public purpose. For example, if the land itself belongs to the Railways but was leased out to a private individual under an agreement and later on, if the Railway authorities required such land for any public purpose, there would be no question of acquiring the land since the Page 24 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT title already vests in the Government. However, the right to use the land since was allotted to an individual under an agreement for a determined period and if such period had to be curtailed, there had to be, to that limited extent, acquisition through statutory provisions. The term 'land' used in various provisions contained in ChapterI V therefore, shall have to be seen in light of such position. The word 'land' has not been defined under the Act. The General Clauses Act also does not contain the definition of the said term, however, defines term "immovable property" as to include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. In the context of landed immovable property, thus it would include things attached to the earth or permanently fastened to anything attached to the earth. Under subsection(1) of section 20A of the Railways Act, 1989, therefore, when there is a reference to any land being acquired for a public purpose, it necessarily has reference to not only the land but anything attached to the land which would include a superstructure. Reference may also be made to section 20G which pertains to criteria for determination of market value of land. Subsection(4) of the said section provides that in determining the market value of the land and other immovable property or assets attached to the land or building which are to be acquired, the competent authority may use the services of a competent engineer or a specialist in the field. Thus the statute itself recognises the requirement of acquisition of a land along with superstructure for which a separate mode for assessing compensation is provided. Reference may also be made to subsection (3) of section 20F which provides that where the right of user or any right in the nature of an easement in any land is acquired, or the person whose right of enjoyment is affected, would be paid an amount calculated at ten per cent of the amount of compensation determined under subsection (1)."
9. It is undisputed fact which is emerging from the record that though the award was passed way back on 09.12.2011, the compensation in terms of said award was offered for the Page 25 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT first time almost after a period of one year in October, 2013. It is true that the Railways Act nowhere provides for time limit within which the awarded compensation is to be paid to the land owners but as has been held by catena of decisions, more particularly decision of the Hon'ble Supreme Court in the case of Ved Prakash and Ors. Vs. Union of India reported in reported (1994)1 SCC 45, the compensation to be awarded within a reasonable time. In our view, the petitioners were justified in not accepting the awarded compensation because the competent Authority had not passed complete award in respect of land, building and other immovable property or assets attached to the land as held by the Division Bench of this Court in the case of Hansaben Prafulbhai Desai (Supra), we are of the considered view that the contention on behalf of the respondent No.1 that they have complied with the requirement of the Railways Act by offering compensation to the petitioners.
10. During the course of argument, the learned advocate Mr. Amin for the petitioners had submitted that the petitioners are not against the project of Western Dedicated Freight Corridor, which is undertaken by the respondent No.1 or they do not want to come in the way of development. Only contention raised by the learned advocate for the petitioners is that because of huge time gap between the acquisition of land and non-payment of compensation, the petitioners may not be made to suffer financially and that could not be believed and the compensation awarded to them is illusory. He urged that though the prayers made is for declaration to the effect that the acquisition has lapsed on account of inordinate delay in making the payment and taking the possession of the land, Page 26 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT the relief may be appropriately modified by this Court and appropriate order may be passed. In this connection, he has placed reliance on unreported decision in the case of Patel Hansaben Prafulbhai Desai (Supra) decided by the Division Bench of this Court vide Special Civil Application No.13389 of 2013 and allied matters dated 7/11.04.2016 in para 27, observed as under:
"This brings us to the ultimate relief that should be granted to the petitioner. It is true that the sum total of our conclusion would be that a proper procedure as envisaged in ChapterI V of the Act for acquiring the petitioner's right of user is not followed. However, the relief would have to be moulded in peculiar facts of the case. Such peculiar facts are that though the petitioner is occupant of the tenements since many years, she neither has any document of acquiring any right, title or interest in such property, nor can she demonstrate any right, title or interest in the property in question of her predecessor transferor. We have upheld the stand of the respondents that the tenements are situated on land belonging to the Government. The Railway authorities had offered compensation to the petitioner for loss of superstructure along with award passed in favour of other landowners and occupants of residential properties in the region. The rest of the lands are already acquired by the Railways. The occupants of the locality barring the petitioner accepted the compensation and sought enhancement through arbitral proceedings. The petitioner is the only person who now resists acquisition of her property. Granting her full protection would result in further inordinate delay in implementation of the railway project of considerable national importance. We are informed that the Railway authorities seek to lay down the railway line which would be dedicated to freight transport for quicker and smoother passage."Page 27 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019
C/SCA/9734/2018 JUDGMENT
11. The Division Bench of this Court in the case of Patel Pasabhai Amabhai & 32 Vs. Union of India & Ors. while passing order in Special Civil Application No.12438 of 2012 and allied matters dated 21 & 22.09.2017 has observed in para 28 as under:
"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 . 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 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."
12. The Division Bench in the said decision has bifurcated the relief in two parts. So far as the petitioners, who had not accepted compensation and kept their challenge alive without disturbing acquisition of land, direction was given to the Page 28 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT competent Authority to recompute and pass fresh award in terms of 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. The Court was informed that this class of petitioners had already challenged the award as contemplated under the Act. The Division Bench therefore, observed that even after the fresh computation, the petitioners were not satisfied with the compensation, a liberty was served in favour to pursue their pending challenges before the Arbitrator, who was directed to take notice for further development in this regard. Period of six months was allowed to the competent Authority to pass fresh award.
13. So far as the petitioners, who had already accepted the compensation, the Railway Administration was directed to pay the interest from the date of the award by the competent Authority till actual payment of compensation at the compounded rate of 10% p.a.
14. In this batch of petitions, the respondents have stated in para 6 of the affidavit that out of 14 petitioners, 5 petitioners have already accepted the compensation. The details of these petitioners are as under. Moreover, these petitioners have not controverted or denied the acceptance of compensation as asserted by the respondent No.1.
S. Survey Name of the Kathedar Payment Payment
No No. received of
amount Date PAPs
1 54/2 Bababhai Jeevabhai 1,69,432.00 30.05.2015 Ajitbhai
Babubhai
Parmar
Page 29 of 31
Downloaded on : Sat Aug 31 23:06:47 IST 2019
C/SCA/9734/2018 JUDGMENT
2 54/3 Jashbhai Bhanjibhai 66,138.00 30.05.2015 Jashbhai
Bhanjbhai
3 55 Kesrisinh Bhupatsinh 3,75,498.00 30.05.2015 Parmar
Maniben
Kesarisinh
4 56 Parmar Melubhai 2,05,578.00 20.06.2016 Melabhai
Becharbhai Bhabhajibhai Becharbhai
Parmar
5 80 Jaymalsinh Ramsinh Bin 1,56,643.00 31.07.2015 Vikramsinh
Nanabhai, Vikramsinh Ramsinh
Ramsinh Bin Nanabhai,
Nathusinh Prabhatsinh
15. For the foregoing reasons, the competent Authority is directed to recalculate the compensation payable to the petitioners as on today for the loss of superstructure and loss of user on land, if any along with statutory benefits, in terms of Chapter IV-A of the Railways Act, 1989 as early as possible. The revised computation shall be communicated to the petitioners and thereafter, the recomputed compensation shall be paid to the petitioners as early as possible without any delay.
The petitioners shall be at liberty to withdraw such recomputed compensation from the competent Authority subject to their rights to pursue the remedy for the enhancement in accordance with law.
It will be open for the Railway Authority to take possession of the properties of the petitioners upon completion of the aforesaid exercise.
For the class of the petitioners as mentioned in para 14, who have accepted compensation belatedly, the Railway Administration shall pay the interest from the date of award passed by the competent Authority till actual payment of the Page 30 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019 C/SCA/9734/2018 JUDGMENT compensation at the compounded rate of 10% p.a. The Railway Authority shall pay the interest to such class of petitioners as expeditiously as possible.
Petitions stand disposed of accordingly. Interim relief, if any, stands vacated forthwith (S.R.BRAHMBHATT, J) (A.G.URAIZEE, J) YNVYAS Page 31 of 31 Downloaded on : Sat Aug 31 23:06:47 IST 2019