Allahabad High Court
Jaiveer Singh And 2 Others vs Union Of India And 4 Others on 27 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2587
Bench: Manoj Misra, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
AFR
Court No. - 40
Case :- WRIT - C No. - 2959 of 2020
Petitioner :- Jaiveer Singh And 2 Others
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- Kaushal Kumar Singh,Abhinav Gaur
Counsel for Respondent :- C.S.C.,Abhinav Gaur,Rajnish Kumar Rai
And;
Case :- WRIT - C No. - 42537 of 2019
Petitioner :- Umesh Kumar And 18 Others
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- Tapan Kumar Mishra
Counsel for Respondent :- Rajnish Kumar Rai,Abhinav Gaur,Aditya Prasad Misra,Anjali Upadhya,C.S.C.,Pranjal Mehrotra,Ramendra Pratap Singh
And;
Case :- WRIT - C No. - 42577 of 2019
Petitioner :- Rajesh Kumar And 8 Others
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- Tapan Kumar Mishra
Counsel for Respondent :- Rajnish Kumar Rai,Abhinav Gaur,Anjali Upadhya,Pranjal Mehrotra,Ramendra Pratap Singh
And;
Case :- WRIT - C No. - 43014 of 2019
Petitioner :- Rajesh Kumar And 8 Others
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- Tapan Kumar Mishra
Counsel for Respondent :- Rajnish Kumar Rai,Abhinav Gaur,Anjali Upadhya,Pranjal Mehrotra,Ramendra Pratap Singh
Hon'ble Manoj Misra,J.
Hon'ble Dinesh Pathak,J.
(Delivered by Hon'ble Manoj Misra, J.)
1. As these four petitions question the acquisition of land under a common notification, they have been clubbed together. Writ petition (Group C) numbers 2959 of 2020; 42537 of 2019; and 42577 of 2019 seek quashing of notifications dated 11.02.2019 and 06.11.2019 issued under Sections 20-A and 20-E, respectively, of the Railways Act, 1989 (for short the 1989, Act) to acquire land for a Special Railway Project i.e. Eastern Dedicated Freight Corridor (for short Freight Corridor) in district Gautam Budh Nagar. Whereas, Writ C No. 43014 of 2019 has been filed by persons who claim themselves to be aggrieved with the impugned notifications though their land is not included in the impugned notification. The petitioners of Writ C No. 2959 of 2020 have their land at village Chamrawali - Boraki, Tehsil Dadri, District Gautam Budh Nagar whereas the petitioners in the remaining three petitions have their land at village Rithauri in the same district.
2. As in Writ C No. 2959 of 2020 pleadings are elaborate and parties have exchanged their affidavits, the same is taken as the leading petition. However, we shall refer to the facts of the other three petitions also, wherever necessary.
3. The case of the petitioners in the leading Writ C No. 2959 of 2020 is that, to acquire land for the Special Railway Project - Freight Corridor in district Gautam Budh Nagar in the State of Uttar Pradesh, a notification under Section 20-A of the 1989 Act was issued on 24 August 2009, which was followed by declaration, dated 30 July, 2010, under Section 20-E of the 1989 Act. Pursuant thereto, an award was passed on 30 August 2011, under sub-section (2) of Section 20-F of the 1989 Act, and physical possession of 5.0844 hectare of land falling in village Chamrawali - Boraki was taken. Despite having taken possession of that land, the land was not utilised. Later, in a mala fide manner, on request of Greater Noida Authority (for short GNIDA), the impugned notifications were issued even though, for the purpose of the Special Railway Project, need for land stood satisfied by the earlier acquisition proceeding. Accordingly, by exercising statutory right available under sub-section (1) of section 20-D of the 1989 Act, an objection to the notification was taken. But, without addressing the objection as per sub-section (2) of Section 20-D of the 1989 Act, straight away the impugned declaration under sub-section (1) of Section 20-E of the 1989 Act was made by making an incorrect declaration that no objection was taken under sub-section (1) of Section 20-D of the 1989 Act. Similar, is the case of the petitioners in Writ C Nos. 42537 of 2019 and 42577 of 2019 though their pleadings are not as elaborate as is in the lead petition i.e. Writ C No. 2959 of 2020.
4. In the leading petition i.e. Writ C No. 2959 of 2020, several counter-affidavits have been filed. It would be useful to refer, in brief, to the contents of those counter-affidavits. These counter affidavits are as follows:
(A) Two counter affidavits dated 18.11.2020 and 12.02.2021 have been filed on behalf of Eastern Dedicated Freight Corridor Corporation of India Ltd. (for short the Corporation) by Sri Ram Manohar Agarwal. It is stated therein that the Corporation was incorporated as a government company under the provisions of the Companies Act, 1956 on 30.10.2006 as a Special Purpose Vehicle (SPV) in the form of Public Sector Undertaking (PSU) of the Ministry of Railways. It is stated that for completion of the Freight Corridor, land though was acquired earlier but more land was required for its completion and therefore, efforts to acquire the same began through agreement/consent of affected persons. But as the exercise could not be completely successful, as few persons, like the petitioners, refused to give consent, GNIDA, vide letter dated 06.12.2018, requested acquisition of 1.966 Ha land in 24 Khasras of village Chamrawali Boraki and, vide letter dated 25.09.2018, requested acquisition of 0.7279 Ha land of Khasra Nos. 45 and 112 at village Hazratpur. It is stated that the Freight Corridor is a project of national importance and would be the lifeline of the economy. Moreover, it would reduce carbon emission as well as burden on the existing infrastructure for transportation of goods. It is stated that the competent authority had submitted a report that no objections were received in his office to the notification under Section 20-A; acting on the said report, the declaration under Section 20-E (1) of the 1989 Act was made, consequent to which, the land vested in the Central Government. In the counter-affidavit, dated 12.02.2021, it has been demonstrated that the project has been completed substantially. In that context, paragraph 35 thereof, is extracted below:
" In furtherance to the above, a perusal of another annexed table clearly reveals that as against an estimated cost of Civil Engineering Works of Rs. 824 Crores, the latest figures (upto 29th January 2021) show expenditure to the tune of Rs. 614 crores (approximately 74% of financial progress). Only 1.36 kms of linear length of land remains to be acquired out of total requirement of 54.38 kms. The various physical assets created upto date include completion of formation (earth foundation for laying of tracks and associated fittings) for 51.24 kms (76%) out of 54.38 Kms., completion of all 5 major bridges (above 12.2 meters), completion of 47 (92%) minor bridges out of a total of 51,32 (84%) out of 38 Railway under bridges and a whole range of associated works are in full swing as is evident from the bare perusal of the table which is marked and annexed as Annexure 3."
By annexing tables and map, an effort has been made to demonstrate that the work of the Freight Corridor has reached an advanced stage and that a minuscule part of the project remains, due to unavailability of land on account of resistance offered by some persons including the petitioners. Along with counter-affidavit, dated 12.02.2021, vide annexure 4, a table has been placed on record to indicate that the hindrance in the acquisition of land is limited to an area of 2.0783 Ha in a stretch of only 1.150 Kms. of the corridor. Out of which, 0.300 Km falls in village Rithori, which relates to Writ C No. 42537 of 2019 and Writ C No. 42577 of 2019 whereas 0.300 Km falls in village Hazaratpur and 0.550 Km falls in village Chamrawali Boraki, which relates to Writ C No. 2959 of 2020.
In the counter affidavit dated 12.2.2021, while giving para-wise reply to the averments made in Writ C No. 2959 of 2020, in paragraph (''l') it is stated: ".......that the instant acquisition proceedings are for a project of great national importance and over 95% of the project has already been developed and compensation to about 22 persons concerned has already been paid. It is only 300 meters running patch length of corridor and 550 meters running patch length of corridor in Hazratpur village and Chamrawali Boraki village, respectively, that have been unnecessarily and illegitimately hindered on account vexatious petitions based on false and frivolous grounds and for which the entire public purpose has come to a halt for so long........".
In counter-affidavit dated 18.11.2020 more or less same narration of facts, as noticed above, is there. However, in addition thereto, the respondents have enclosed copy of the award, dated 27.07.2020, passed under Section 20-F(2) of the 1989 Act. The award reflects that the objection of the petitioner no.1 (Jaiveer Singh) was dealt with at serial no. 5 whereas the objection of petitioner no.2 (Tejpal) was dealt with at serial no. 7 and objection of petitioner no.3 (Shyam Singh) was dealt with at serial no. 17. A perusal of the award would reveal that they had participated in proceedings relating to determination of compensation. Jaiveer Singh had claimed resettlement in a developed area and if the Railways held no land, compensation at the rate of Rs.28,000/- per square meter was claimed. Tejpal's and Shyam Singh's objections are similar except that they have demanded compensation at the rate of Rs.28,500/- per square meter.
(B). Counter-affidavit, dated 11.12.2020, sworn by Akhilesh Kumar, Tehsildar (J), Jewar, Gautam Budh Nagar. He states that he has been authorized to file counter-affidavit on behalf of respondent no.4 i.e. the Competent Authority. In paragraph 16 of the counter-affidavit, which is a reply to the averments made by the petitioners in respect of filing of written objections under Section 20-D (1), it is stated as follows:-
".......it is submitted that the petitioners did not file objection within time before the answering respondent and as such notification u/s 20E of the Act was issued in accordance with law there is no illegality at all. However, land in dispute is in the linear way to complete Dedicated Freight Corridor and is required for the completion of project of national level therefore fresh notification was issued in accordance with law."
In paragraph 18 of the counter-affidavit, which is a reply to the averments made by the petitioners that their objections were not considered and no hearing was afforded to them on their objections, it is stated as follows:-
"....... In reply, it is submitted that no any objection of petitioners was received in the office of answering respondent after notification of Section 20A of the Act, therefore answering respondent proceeded in accordance with law there is no illegality at all. "
In paragraph 20 of the counter-affidavit, which is a reply to the averments made in the writ petition that the notification fraudulently stated that no objection was filed in the office of the competent authority within the stipulated period, it is stated as follows:-
"...... In reply, it is submitted that no objection was received by (should be read as from) any of the land holders within the time after publication of notification U/S 20A of the Act therefore report was forwarded in accordance with law and in furtherance thereof notification U/S 20E was published on 28.11.2019 there is no illegality at all. "
In paragraph 22 of the counter-affidavit, which is a reply to the averments made in the petition that written objections were filed before the competent authority/fourth respondent within 30 days from the date of publication of the notification under sub-section (1) of Section 20A but no opportunity of hearing was provided to the petitioners by the competent authority, it is stated as follows:-
"....The contents of paragraph no. 29 of the writ petition are totally false as stated hence strongly denied. In reply, it is submitted that competent authority/KALA/DFCC was City Magistrate Greater Noida and not at all S.D.M. Sadar Gautam Budh Nagar in the year 2019 therefore application which was annexed in the writ petition is not at all given in the office of competent authority/D.F.C.C./KALA and same is given in the office of S.D.M. Sadar Collectorate Gautam Budh Nagar and also application is not at all in accordance with provisions of Railway Act 1989 and as such no objection is filed by the any of the petitioners before competent authority which itself proved the report forwarded by the answering respondent. Therefore report forwarded by the answering respondent is in accordance with law there is no illegality at all. "
In paragraph 24 of the counter-affidavit, which is a reply to the averments made in the writ petition that the petitioners were deprived of the opportunity of hearing on their objections to the notification under Section 20A (1), it is stated as follows:-
".....The contents of paragraph no.31 of the writ petition are totally false as stated hence strongly denied. In reply, it is submitted that objection was not at all filed in the office of competent authority/KALA notified for this purpose and so called application which was not at all in the form of objection as per the procedure laid down in the Railway Act 1989 in the office of Sub Divisional Magistrate, Sadar, which was not at all competent authority therefore on the ground writ petition deserved to be dismissed."
Likewise, in paragraphs 26 and 27, which contains reply of paragraphs 33, 34, 35, 36, 37 and 38 of the writ petition wherein it is averred that in a mala fide manner it was reported that no objections under Section 20D(1) of the 1989 Act were filed, it is stated as follows:-
"26......the contents of paragraph nos. 33 and 34 of the writ petition are totally false as stated hence strongly denied. In reply, it is submitted that from bare perusal of so called objection filed by the petitioners Annexure -8 to the writ petition it is crystal clear that objection is not at all in accordance with prescribed proforma as per the Railway Act 1989 and none of the objection by the petitioners in the office of competent authority/KALA/DFCC same is filed in the office of S.D.M., Sadar who has no any concern with the acquiring in the land in dispute therefore it is crystal clear from the Annexure 8 of the writ petition that no any objection filed by the petitioner after notification of 20A of the Act before the competent authority/KALA/DFCC hence writ petition is misconceived and is liable to be dismissed on the ground alone.
27. That the contents of paragraphs 35, 36, 37 and 38 of the petition are totally false as stated hence strongly denied. In reply, it is submitted that competent authority/KALA/DFCC forwarded the report in accordance with law after considering all facts and circumstances and evidence on record and after adopting due procedure and there is no any illegality as there was no any objection of any of the petitioners before competent authority/KALA/DFCC which itself is clear from the Annexure 8 of the writ petition as same is filed in the office of S.D.M. Sadar not at all in the office of competent authority/KALA/DFCC Gautam Budh Nagar, therefore answering respondent has taken action in accordance with law after following the due procedure as prescribed in the Railway Act and it is totally wrong to say that no work on the earlier acquired land is going on, work on the earlier acquired land is in progress and only for completion of the project land in dispute along with other land is required as consent with the land holders is not at all settled with the acquiring body therefore the acquisition proceeding in accordance with law there is no illegality at all."
5. In Writ C No. 42537 of 2019, a counter-affidavit has been filed by Sri Ram Manohar Agarwal on behalf of Union of India as well as the Corporation raising similar pleas as were taken in the counter-affidavit filed in Writ C No. 2959 of 2020. In addition to above, it was pleaded that the petitioners had not enclosed record of rights to disclose that they held any right over the land proposed to be acquired. It was pleaded that the extract of record of rights annexed by them did not disclose entry of their name. It was specifically pleaded that the right to file an objection under Section 20D of 1989 Act is limited to the purpose of acquisition mentioned in sub-section (1) of section 20A of the 1989 Act. It was stated that the objection raised by the petitioners of Writ C No. 42537 of 2019 was not in respect of the purpose of acquisition mentioned in sub-section (1) of Section 20A but was in respect of compensation and rehabilitation. The stand therefore is that the objection taken by the petitioners of Writ C No 42537 of 2019 is not an objection contemplated by sub-section (1) of Section 20D of the 1989 Act, hence, it is no objection in the eyes of law. In the rejoinder affidavit, the petitioners of this petition submitted that against Abadi land name of the tenure holder is not entered but their long standing possession and existing structures establish their ownership.
6. Likewise, in Writ C No. 42577 of 2019 on behalf of Union of India as well as Corporation, counter-affidavit was filed by Sri Ram Manohar Agarwal in which similar case as in Writ C No.42537 of 2019 was set up. The petitioners also, in rebuttal, took similar pleas. Thus, the stand of the respondents in Writ C No. 42577 of 2019 and Writ C No. 42537 of 2019 is that the alleged objections were no objection as contemplated by sub-section (1) of Section 20D of 1989 Act; and that the petitioners name was not recorded in revenue records. In rejoinder, the stand of the petitioners was that it was Abadi land where they held possession and had their structures therefore, mere absence of their name in the revenue records is not sufficient to defeat their claim.
7. In Writ C No. 43014 of 2019, the stand of the respondents is that the land of the petitioners is not notified for acquisition and therefore, their petition is misconceived.
8. Having noticed, in brief, the pleadings of the parties in this bunch of petitions, we, now, proceed to notice the submissions of the learned counsel for the parties.
9. We have heard Sri N.P. Singh for the writ petitioners in the leading Writ C No. 2959 of 2020 and Sri Mukesh Kumar for the petitioners in connected Writ C Nos. 42577 of 2019, 42537 of 2019 and 43014 of 2019. In all the petitions we have heard Sri Manish Goyal, Additional Advocate General, assisted by Ms. Akansha Sharma, and Sri Abhishek Kumar for the Union of India as well as the Corporation; Sri A.K. Goyal and the learned standing counsel for the competent authority; Sri Anoop Trivedi, learned senior counsel, assisted by Sri Abhinav Gaur, also appeared for the Corporation; and Sri Alok Singh, holding brief of Sri Ramendra Pratap Singh, appeared for Greater Noida.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
10. Sri N.P. Singh, who led the arguments on behalf of the petitioners, submitted as follows:-
(a) A notification under Section 20A of the 1989 Act could be issued where the Central Government is satisfied that for a public purpose any land is required for execution of a Special Railway Project. Section 2 (37A) of 1989 Act provides that a Special Railway Project means a project, notified as such by the Central Government from time to time, for providing national infrastructure for a public purpose in a specified time frame, covering one or more States or the Union Territories. Since, by notification dated 24 August 2009, the Central Government through the Ministry of Railways notified its intention to acquire land for execution of the Freight Corridor, a special railway project, within the district of Gautam Budh Nagar in the State of Uttar Pradesh, and, in pursuance thereof, had issued notification on 30 July, 2010, under Section 20E of 1989 Act, the requirement of land for execution of that project stood satisfied and, therefore, there could be no further acquisition for that project. He submits that the impugned notification is, therefore, beyond the scope of the provisions of the 1989 Act and is mala fide.
(b) Under the earlier notification of the year 2010, an award was passed and physical possession of the land was taken yet, that land was not utilised even though it was agricultural land and, now, unnecessarily, a fresh notification has been brought, at the request of GNIDA, not to serve the purpose for which acquisition could be made under the 1989 Act but to benefit GNIDA. It was urged that the acquisition therefore, is not to serve the purpose contemplated under the 1989 Act but to serve GNIDA, which vitiates the notification.
(c) That even assuming that the notification could have been issued under the provisions of the 1989 Act, the procedure provided by the 1989 Act for making an acquisition under the Act was not followed inasmuch as the objections taken by the petitioners, under sub-section (1) of section 20 D of the 1989 Act, to the notification under sub-section (1) of Section 20A were not addressed; no date for personal hearing was fixed as is contemplated by the provisions of sub-section (2) of Section 20D of the 1989 Act; and it was wrongly reported that no objections were taken. The stand of the respondents that no objection was taken is in the teeth of the record because from the affidavit of Tehsildar it is clear that the objection was filed though, according to him, it was not before the competent authority because the competent authority was the City Magistrate, Greater Noida and not the S.D.M.(Sadar), Gautam Budh Nagar which is incorrect inasmuch as in the notification dated 11.2.2019, under Section 20A of 1989 Act, the competent authority was specified as Up Zila Adhikari, Gautam Budh Nagar, U.P. which is none other than the S.D.M. (Sadar), Gautam Budh Nagar and, otherwise also, the objection was titled in a manner that it was addressed to both S.D.M. (Sadar) as well as Up-Zila Adhikari, Gautam Budh Nagar therefore, by no stretch of imagination it could be stated that there was no objection filed. Hence, the notification under Section 20E is liable to be quashed.
11. On behalf of the petitioners in Writ C Nos. 42577 of 2019 and 42537 of 2019, the learned counsel representing those petitioners, apart from adopting the above submissions made by Sri N.P. Singh, urged that the stand of the respondents that the objection taken by these writ petitioners were no objection, as contemplated by sub-section (1) of Section 20D of the 1989 Act, and were justifiably ignored, cannot be accepted inasmuch as sub-section (2) of section 20 D of the 1989 Act casts a duty on the competent authority to give the objector an opportunity of being heard. Therefore, once objections are taken, whether they relate to the purpose mentioned in sub-section (1) of section 20A of the 1989 Act, the competent authority has to invite the objector for personal hearing. In absence whereof, the declaration under sub-section (1) of Section 20E of the 1989 Act gets vitiated.
12. Learned counsel for the petitioners cited a number of decisions to demonstrate that the right to file an objection to a preliminary notification proposing to acquire land is a valuable right akin to a fundamental right; and that hearing on the objections must be effective and not a mere formality and a violation of that right vitiates the notification of declaration. The citation of those decisions are:-
(a) (2005) 7 SCC 627 : Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai and others;
(b) (2014) 6 SCC 564 : Union of India v. Shiv Raj;
(c) (2013) 1 SCC 403 : Surinder Brar V. Union of India
(d) (2013) 4 SCC 210 : Usha Stud & Agricultural Farms (P) Ltd. v. State of Haryana.
13. To contend that the merit of the objections is to be considered by the competent authority and not the High Court, apex court decision in the case of Gojer Bros. (P) Ltd. v. State of W.B., (2013) 16 SCC 660, was cited.
14. To contend that failure to observe audi alteram partem rule at pre-decisional stage would vitiate the decision, apex court decision in Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664, was cited. Apex court decision in Kesar Enterprises Ltd. v. State of U.P and others, (2011) 13 SCC 733, was cited to contend that the underlying purpose of the principles of natural justice is to check arbitrary exercise of power by State and its functionaries. Decisions of Apex Court in State of West Bengal v. Debasish Mukherjee and others, (2011) 14 SCC 187, and B.P. Singhal v. Union of India, (2010) 6 SCC 331, were cited to contend that in a democratic country, governed by rule of law, no authority has absolute discretion and even prerogative power is subject to judicial review; and that even the doctrine of pleasure cannot be a licence to act arbitrarily, whimsically, or capriciously with unfettered discretion/unaccountable action. Thus, where reasons given for exercise of such power are irrelevant or where the exercise of power is vitiated by self-denial on wrong appreciation of the full amplitude of the power or where the decision is arbitrary, discriminatory or mala fide, judicial review would be warranted.
15. Reliance on the judgment of the apex court in K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, was placed to urge that rule of law is one of the most important aspects of the doctrine of basic structure and any interference with the peaceful enjoyment of possession should be lawful - public purpose is a condition precedent for applicability of Article 300-A of the Constitution and its violation is amenable to judicial review - whether the purpose is primarily public or private, has to be decided by the legislature on the basis of object of the Statute and policy of legislation. The decision of apex court in the case of Manohar Joshi v. State of Maharastra, (2012) 3 SCC 619 was cited to contend that town planning is to be done after elaborate planning keeping in mind the difficulties of public and that there should not be arbitrary shifting of plans - once a plan is formulated, the same has to be implemented as it is only in the rarest of rare case that a departure from it could be had. Decision in the case of Kalinga Mining Corporation v. Union of India, (2013) 5 SCC 252, was cited to contend that though the scope of judicial review with regard to the actual decision taken is limited but where the decision making process is vitiated, the power of judicial review could be exercised. Decision in the case of Kalpana Mehta v. Union of India and others, (2018) 7 SCC 1, was cited to urge that the constitutional courts cannot sit in oblivion when fundamental rights of individuals are in jeopardy - the Constitution is about empowerment and that indian society must move "from the culture of authority and submission to the law, to one of justification and rights under the law. Decision of Gujarat High Court reported in (2013) SCC Online Guj 6083 in the case of Railway Corridor Virodh Kishan Sangh V. Union of India was cited to urge that where the declaration under Section 20E of the 1989 Act is made without consideration of objections under section 20D not only the declaration is to be quashed but also the preliminary notification under section 20-A (1) if the statutory period prescribed by sub section (3) of Section 20E of the 1989 Act from the date of notification under section 20A (1) has expired.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
16. On behalf of respondents, Sri Manish Goyal, who led the arguments, as well as other counsels including Sri Anoop Trivedi, appearing for the respondents, submitted as follows:-
(a) The Special Railway Project as contemplated by section 2 (37A) of the 1989 Act was notified on 19.02.2008 by the Central Government as follows:-
"NOTIFICATION New Delhi, the 19th February, 2008 S.O. 360(E)---- In exercise of the powers conferred by clause (37A) of Section 2 of the Railways Act, 1989, the Central Government hereby notifies the following projects as special railway project, as mentioned in column (2) of the table below in the State mentioned in column (3) of the said table, with effect from the date of publication of this notification in the Official Gazette.
TABLE Special Railway Project Sl.No. Name of Project State/UT (1) (2) (3) 1. Eastern Dedicated Freight Corridor Bihar, Uttar Pradesh, Haryana, Punjab 2. Western Dedicated Freight Corridor Maharastra, Gujarat , Rajasthan, Haryana, Delhi, Uttar Pradesh [F. No. 2008/LML/13/5] MATHEW JOHN, Secy."
It was urged that from the above notification it is clear that the Eastern Dedicated Freight Corridor runs through four States, namely, Bihar, Uttar Pradesh, Haryana, Punjab. The project is not limited to any particular district or an area therefore, even if the land in the district of Gautam Budh Nagar was notified in the year 2009 for the Eastern Dedicated Freight Corridor (for short the Freight Corridor), the power to acquire further land for the Freight Corridor in the same district would not come to an end as that power can be exercised under Section 20A, read with Section 2 (37A) of the 1989 Act, from time to time, depending upon the need for the land for creating appropriate infrastructure for the Freight Corridor. It was urged, by inviting our attention on the site plan of the Freight Corridor project in the district of Gautam Budh Nagar, that earlier contemplated Freight Corridor line had a detour from the existing Indian Railway Track which was causing problem as a large chunk of land of Greater Noida was getting landlocked, therefore to straighten the Freight Corridor by aligning it and making it run parallel to the existing Indian Railway Track, after being informed that, except a few, a large number of tenure holders were ready to offer their land for transfer, the acquisition proceeding was initiated therefore, the acquisition proceeding cannot be said to be beyond the scope of Section 20A of the 1989 Act.
(b) It was contended that the plea that the competent authority was City Magistrate and, therefore, filing of the objections before some other authority can not be taken as filing of an objection, is not to be understood as an admission that objections to the notification under section 20-A (1) were filed. Because, in the first part of the counter-affidavit filed in Writ C No.2959 of 2020, it was clearly stated that no objection was filed within the time specified. Thus, the above plea should be understood as plea in the alternative and not as an admission regarding filing of the objection. It was urged that even if the objections, annexed by the petitioners in Writ C No. 2959 of 2020, are taken to have been filed, they do not specifically claim that the purpose of the acquisition is not what is contemplated by sub-section (1) of Section 20A of the 1989 Act. Rather, they only question the need for further acquisition. It was urged that in so far as the objection of Jaiveer Singh is concerned that does not even mention the notification to which objection has been taken and therefore the same cannot be treated as an objection to the notification. In the alternative, it was urged that the scope of the objection under Section 20D is limited to raising an objection with regard to the purpose mentioned in sub-section (1) of Section 20A whereas, none of the objections purports to question that, hence, the objection is no objection in the eyes of law. Lastly, it was contended that 95% of the project is complete, the petitioners have participated in making of the award and have demanded compensation at the market value therefore, at this stage, there would be no justification to interfere with the acquisition notification when the land holders can be appropriately compensated with money. With regard to writ petition No. 42537 of 2019 and 42577 of 2019 it was submitted that in those petitions, firstly, the objectors are not recorded in the record of rights and, secondly, the objection taken by them is not that the acquisition did not subserve the purpose contemplated under sub-section (1) of Section 20A of the 1989 Act.
17. The learned counsel for the respondents placed reliance on the following authorities:-
(a) (2010) 10 SCC 282 : Nand Kishore Gupta v. State of U.P. and others This authority was cited to contend that where a large project is undertaken and the majority of the farmers receive compensation and only a handful of them raise objection, the court can take into account that aspect for not interfering with the acquisition, particularly, when the project is of immense public importance like an express way and its alignment cannot be changed.
(b) (2019) 7 SCC 342 : State of Tamil Nadu vs. Vasanthi Veerasekaran This authority was cited to contend that where the acquisition is for a project of MRTS (Railways) on behalf of Ministry of Railway, Government of India and, under the law of acquisition, there is no provision for rehabilitation or for providing alternative sites to the landlosers, a direction by the High Court in providing alternative land would not be appropriate and compensation alone could be awarded.
(c) (2019) 15 SCC 1 : Nareshbhai Bhagubhai and others v. Union of India Reliance on this judgment was placed to contend that under Section 20D of the 1989 Act, the scope of the objection is limited to the purpose for which acquisition is made and it is not a general right to file objections as is under Section 5-A of the Land Acquisition Act, 1894 (for short the 1894 Act). This judgment was also relied upon to urge that even where notification under Section 20E gets vitiated in absence of an order passed on the objection under Section 20D of the 1989 Act, if the court finds that the Special Railway Project is on the verge of completion and only a minuscule part remains, in respect of which objections have been taken by the land-owners, the Court need not set aside the notification but may direct payment of compensation at the current market rate.
(d) (2015) 7 SCC 21 : Savitri Devi vs. State of U.P. Paragraph 46 of this judgment was relied upon to contend that where developments have taken place and third party rights have been created even if the court finds acquisition to have vitiated, a workable solution could be arrived at by the Court by adequately compensating the landowners in the form of compensation etc.
(e) (2021) 3 SCC 572 : Project Director, Project Implementation Unit v. P.V. Krishnamoorthy This was cited to contend that in matters relating to national highways and economic corridor, the decision taken by experts with regard to the route is not amenable to judicial review.
(f) (2011) 11 SCC 100 : Dedicated Freight Corridor Corporation of India V. Subodh Singh and others This judgment was cited to contend that the period of limitation to pass an award would be counted from the date of the gazette notification and not from the date of publication in the newspaper.
ISSUES
18. Having noticed the rival submissions and having perused the record, in our view, the following issues arise for our consideration:-
(i) Whether the notification dated 11 February 2019 under Section 20A of the 1989 Act could have been issued to serve the public purpose for the special railway project as land had already been acquired for the project vide notification dated 30 July 2010 followed by an award and taking of possession?
(ii) Whether the petitioners of Writ C Nos. 2959 of 2020; 42537 of 2019; and 42577 of 2019 filed their objection under sub-section (1) of Section 20D of the Railways Act, 1989?. If so, whether in absence of consideration of their objection, the declaration notification dated 06 November 2019, under Section 20 E of the 1989 Act, stood vitiated?.
(iii) If the declaration notification dated 06 November 2019, under section 20-E of the 1989 Act, is vitiated, to what relief the petitioners are entitled to?
ANALYSIS AND CONCLUSION
19. Issue No.1: In respect of the validity of notification dated 11.02.2019, under Section 20A of Railways Act, 1989, the thrust of the submissions of the learned counsel for the writ petitioners is that once land was acquired in the district of Gautam Budh Nagar for the special railway project i.e. Eastern Dedicated Freight Corridor, there existed no public purpose for acquisition of land for execution of the special railway project and therefore, the notification, under Section 20A, dated 11.02.2019, is liable to be quashed. To buttress the above submission, the learned counsel for the petitioners placed reliance on the provisions of sub-section (37A) of Section 2 of the 1989 Act which defines a special railway project as a project notified as such by the Central Government from time to time, for providing national infrastructure for public purpose in a specified time-frame, covering one or more States or the Union Territories. It was urged that the notification dated 19 February 2008, under sub-section (37A) of Section 2, notified Eastern Dedicated Freight Corridor as a special railway project covering the State of Bihar, Uttar Pradesh, Haryana and Punjab. The notification under section 20-A of the 1989 Act of the year 2009 was specific for the Eastern Dedicated Freight Corridor in the district of Gautam Budh Nagar and it was followed by declaration and award with transfer of possession therefore, it would be deemed that the need for land for the Eastern Dedicated Freight Corridor in the district of Gautam Budh Nagar stood satisfied. Under the circumstances, the impugned notification dated 11 February 2019 does not serve the public purpose contemplated by the Act but some collateral purpose, such as releasing landlocked land of GNIDA, which is not permissible under the 1989 Act.
20. Per contra, on behalf of the respondents, the stand taken in their counter-affidavits is that a large chunk of land of GNIDA was to get landlocked on account of the circuitous route of the earlier proposed freight corridor and therefore, a decision was taken to properly align the freight corridor so as to run it parallel to the existing Indian Railway track. This was in larger public and national interest. Hence, the process of acquisition started. More than 75% of the land required for that end was acquired through sale-deeds and when resistance was offered by a handful of persons, notification was issued to acquire the land. It was urged on behalf of the respondents that for a special railway project, land can be acquired from to time dependent on the need that may arise. Aligning the freight corridor with the existing Indian Railway Track is a genuine need, relatable to public purpose, based on expert decision and the same is not amenable to judicial review.
21. We have given our anxious consideration to the rival submissions on the issue and have carefully examined the pleadings of the parties. No doubt, earlier also, the power vested in the Central Government under section 20A (1) was exercised to acquire land in the district of Gautam Budh Nagar for the Eastern Dedicated Freight Corridor but there is nothing in the Act which may lead us to infer that once the power is exercised the same cannot be exercised again, if need so arises. In this regard, it would be apposite to notice Section 14 of the General Clauses Act, 1897 which provides that where, by Central Act, any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion requires. Thus, notification to acquire land for Eastern Dedicated Freight Corridor in the district of Gautam Budh Nagar issued in the year 2010 would not place an embargo on fresh acquisition of land in the district for the Freight Corridor, if there exists a public purpose.
22. From the averments made in the counter-affidavit including the own case of the writ petitioners, the earlier proposed freight corridor took a detour from the existing Indian Railway Track which resulted in large chunk of GNIDA land getting landlocked. GNIDA therefore, requested review of the route by offering land to align the freight corridor with existing Indian Railway track. It appears that 75% of the land could be garnered through sale deeds and the remaining was proposed to be acquired. This way, the route not only gets shortened but gets aligned with the existing railway tracks. Such a decision, in our view, would fall in the realm of an expert decision which, in our opinion, is not amenable to judicial review, particularly, in the light of the decision of the apex court in the case of Project Director, Project Implementation Unit v. P.V. Krishnamoorthy (supra) wherein, after examining the material brought on record, the Court had not interfered with the acquisition to cater to the altered plan upon finding that the alteration in the plan for the project necessitating acquisition was taken consciously on the basis of material available on record to ensure a shorter and a direct route. The apex court had also observed that such decision being based on expert opinion is beyond the purview of judicial review. Here also, from the counter-affidavit, it appears, on 01.03.2013, the Chief Executive Officer, GNIDA, wrote a letter to the Managing Director, Dedicated Freight Corridor Corporation of India Ltd. explaining the difficulty that would arise if the Freight Corridor takes a detour as proposed. This letter has been brought on record as Annexure 6 to the counter-affidavit dated 12.02.2021 filed on behalf of respondents 1 and 2 in Writ C No. 2959 of 2020. The said letter apprises the Managing Director of the Dedicated Freight Corridor Corporation of India Ltd. that if the alignment is not changed, then 200-250 acres of land of Greater Noida would get wasted and would have adverse impact on the proposed Boraki railway station. The letter thus proposes alignment of the freight corridor with existing railway track and it also assures cooperation in providing land for the purpose. It is stated in paragraph ''P' of the counter-affidavit, dated 12.02.2021, which is reply to paragraphs 37 and 38 of the writ petition, as follows:-
" .............The detour alignment of DFCCIL Track was changed on the request of GNIDA from detour to parallel of IR Track to avoid land locking of approx. 200-250 acre land as per GNIDA request vide Letter from CEO/GNIDA dated 01.03.2013............
It was agreed during the meeting under the Chairmanship of Chief Secretary, IDC, UP Govt on dated 20.05.2013 to handover the land to DFCCIL by 30.06.2013 after straightening the alignment which was passing through the Abadi of Boraki village...........
The land coming under the Parallel Alignment of EDFC in village ChamrawaliBoraki (6.5167 Hac.) was to be handed over to DFCCIL (Ministry of Railways) by Greater Noida Industrial Devlopment Authority (GNIDA) after purchasing the same on mutual consent from People/Residents. GNIDA started the process and most of the land in village Boraki was purchased by GNIDA from the residents through mutual consent."
From the above, it is clear that the acquisition in question was to align the track of the freight corridor in a manner that it gets straightened, shortened and, in turn, also save land of GNIDA from getting landlocked or wasted. An acquisition exercise to serve such a purpose, based on review of the earlier proposed route, after examining its workability, cannot be said to serve no public purpose for execution of a special railway project as contemplated by sub-section (1) of Section 20-A of the 1989 Act. We, therefore, hold that notwithstanding the earlier acquisition made vide declaration dated 30 July 2010, the Central Government had the power to issue a fresh notification under section 20A (1) of the 1989 Act by virtue of Section 14 of the General Clauses Act, 1897 upon a review of the workability of the earlier proposed route. Such power having been exercised consciously, after taking into account the request of GNIDA and the practicality of the altered plan, is for a public purpose relatable to execution of a special railway project of economic importance and calls for no interference in exercise of the power of judicial review under Article 226 of the Constitution of India. The issue no.1 is decided accordingly.
23. Issue No.2 : In respect of this issue, the stand of the petitioners had been categorical that upon publication of notification under Section 20A they had submitted their objection under Section 20 D within the period specified in the publication. The petitioners have also enclosed copy of their objections which are addressed to the Up Zila Adhikari (Sadar), / S.D.M. (Sadar), Gautam Budh Nagar. The objection filed by Jaiveer (petitioner no.1 in Writ C No.2959 of 2020) is dated 12.3.2019; of Tejpal (petitioner no.2 in Writ C No.2959 of 2020) is dated 15.03.2020; and of Shyam Singh (petitioner no.3 in Writ C No.2959 of 2020) is dated 13.03.2020. These objections raise a question with regard to the justification for the acquisition by claiming that for the freight corridor, land had already been acquired in the past in the district of Gautam Budh Nagar. These objections were admittedly not decided.
24. The respondents contested the issue by taking the following pleas:-
(a) that the objections were not filed within the prescribed time;
(b) that the objections were not filed before the competent authority inasmuch as the competent authority was the City Magistrate, Greater Noida and not SDM (Sadar), Gautam Budh Nagar; and
(c) even if it is assumed that the objections were taken, they were not of the kind envisaged by section 20D of 1989 Act inasmuch as they do not specifically claim that the acquisition served no public purpose.
25. A perusal of Annexure 3 to Writ C No.2959 of 2020, which is typed copy of the impugned notification dated 11 February 2019, would reveal that it invited objections, under sub-section (1) of Section 20 D, within 30 days from the date of publication in the official gazette. As per the notification, objections were to be filed before competent authority, that is, the Up - Zila Adhikari Gautam Budh Nagar. If we count 30 days by excluding the date of the publication of notification in the gazette, keeping in mind that the month of February 2019 had 28 days, objections taken by Jaiveer, dated 12.3.2019, and Shyam Singh @ Shyamveer, dated 13.3.2019, were within the period of 30 days. Whereas, objection of Tej Pal would be beyond 30 days. But, from Annexure CA-2 filed along with counter-affidavit dated 18.11.2020 of respondent no.5 in Writ C No. 2959 of 2020, which is copy of the award dated 27.07.2020, it appears that the notification dated 11.2.2019, under section 20A (1), was published in newspapers Dainik Jagran and Amar Ujala on 26.02.2019. Under sub-section (1) of Section 20D of the 1989 Act, an objection is to be filed within a period of 30 days from the date of publication of the notification under sub-section (1) of Section 20A. Sub-section (4) of Section 20 A of the 1989 Act provides for the procedure for publication of notification under sub section (1) of section 20A by stating that the competent authority shall cause the substance of the notification to be published in two local newspapers, one of which shall be in a vernacular language. By contrast, Section 20-E of 1989 Act does not require publication of notification in newspapers therefore, the decision of the Apex Court in the case of Dedicated Freight Corridor Corporation of India V. Subodh Singh and others (supra) that the period within which award is to be passed, under Section 20F (2) of the 1989 Act, is to counted from the date of gazette notification, under section 20E (1), is of no help to the respondents. Rather, the period for filing an objection under sub-section (1) of section 20-D of the 1989 Act will have to be counted from the last date of publication of the notification as is required by sub-section (4) of section 20-A of the 1989 Act. Since the notification under sub section (1) of section 20 A of the 1989 Act was published in the newspaper, under sub-section (4) of Section 20A of the 1989 Act, on 26.02.2019 and all the objections were filed by the petitioners within 30 days, when counted from 26.02.2019, they were all within time, therefore the stand taken by the respondents that objection was not within time is not correct. Similarly, in Writ C No. 42537 of 2019, objections were filed within time. One set of objections were filed on 28.02.2019 and the other set of objections were filed on 05.03.2019. Likewise, in Writ C No. 42577 of 2019, the petitioners filed objections in two sets. One set of petitioners filed objections on 28.02.2019 and the other set filed objections on 05.03.2019. Thus, the stand taken in the counter-affidavit that the objections were not filed within time is incorrect. We, therefore, hold that the objections were taken within time i.e. within 30 days of the publication of the notification, dated 11.02.2019, under Section 20A (4) of the 1989 Act.
26. The other stand of the respondents that the objections were not taken before the competent authority, which was the City Magistrate, Greater Noida and not the SDM (Sadar), Gautam Budh Nagar, is on the face of the record misconceived. Indisputably, the notification under Section 20A had specified the competent authority as Up Zila Adhikari, Gautam Budh Nagar, Uttar Pradesh. All the objections were addressed to Up-Zila Adhikari, Gautam Budh Nagar/ Sub Divisional Magistrate (Sadar), Gautam Budh Nagar. Thus, the stand taken by the respondent no.4, namely, the Tehsildar (J.), Jewar, Gautam Budh Nagar that it was the City Magistrate, Greater Noida, who was the competent authority, is outright rejected. Noticeably, the counter affidavit does not specifically state that no such objection is traceable in the office of the Up-Zila Adhikari / S.D.M. (Sadar), Gautam Budh Nagar. Another stand taken by the learned counsel for the respondents that the objections did not specify the notification against which they were made is too hyper technical and has no merit for the following reasons: (a) when objection is taken before the authority concerned pursuant to a publication, from the context, the authority can easily correlate to which it relates to; and (b) ordinarily, land losers are rustic villagers or the like, expecting them to draft an objection like a plaint would not be appropriate.
27. The third stand taken by the counsel for the respondents is a bit interesting. The learned counsel for the respondents urged that under sub-section (1) of section 20D of the 1989 Act, objection is limited to the purpose mentioned in the notification of sub-section (1) of section 20A and unless the objection questions the purpose, it cannot be treated as an objection and, therefore, even if there is a failure to consider the objections taken by the petitioners it would not vitiate the notification under Section 20E of the 1989 Act.
28. To examine the merit of the aforesaid contention, it would be useful for us to extract the provisions of Section 20A, Section 20D and Section 20E of the 1989 Act. These sections are extracted below:-
"20A. Power to acquire land, etc.-- (1) Where the Central Government is satisfied that for a public purpose any land is required for execution of a special railway project, it may, by notification, declare its intention to acquire such land.
(2) Every notification under sub-section (1), shall give a brief description of the land and of the special railway project for which the land is intended to be acquired.
(3) The State Government or the Union territory, as the case may be, shall for the purposes of this section, provide the details of the land records to the competent authority, whenever required.
(4) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which shall be in a vernacular language.
20D. Hearing of objections, etc.-- (1) Any person interested in the land may, within a period of thirty days from the date of publication of the notification under sub-section (1) of section 20A, object to the acquisition of land for the purpose mentioned in that sub-section.
(2) Every objection under sub-section (1), shall be made to the competent authority in writing, and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Explanation.-- For the purposes of this sub-section, "legal practitioner" has the same meaning as in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961(25 of 1961).
(3) Any order made by the competent authority under sub-section (2) shall be final.
20E. Declaration of acquisition.-- (1) Where no objection under sub-section (1) of section 20D has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification, that the land should be acquired for the purpose mentioned in sub-section (1) of section 20A.
(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under sub-section (1) of section 20A for its acquisition, but no declaration under sub-section (1) of this section has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 20A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority."
29. A perusal of the extracted provisions reflect that for a notification declaring intention to acquire the land, under sub-section (1) of Section 20A of the 1989 Act, the Central Government must be satisfied that for a public purpose any land is required for execution of a special railway project. Sub-section (1) of section 20D of the 1989 Act provides that any person interested in the land may, within a period of thirty days from the date of publication of the notification under sub-section (1) of section 20A, object to the acquisition of land for the purpose mentioned in that sub-section. Sub-section (2) of Section 20D provides that every objection, under sub-section (1), shall be made to the competent authority in writing, and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
30. From a plain reading of the aforesaid provisions, it is clear that the scope of the objection is set out in sub-section (1) of section 20 D of the 1989 Act whereas, the mode and manner in which the objection is to be taken and dealt with is laid down in sub-section (2). Importantly, sub-section (2) does not specify the grounds that are necessarily to be taken in the written objection. It merely states that the grounds for the objection must be set out. Once an objection is taken in writing, the competent authority has to give opportunity to the objector of being heard, either in person or through a legal practitioner. Importantly, sub-section (2) of section 20D does not state that if the grounds of objection are not proper, the competent authority may deny opportunity of hearing. Thus, taking into account that the provision to raise an objection is for the benefit of the landowner who is to lose his land, a construction that enables it to serve its purpose fully is to be preferred. Such purpose is best served by allowing the objector to be heard once he takes an objection. Accordingly, we are of the view that once written objection to the proposed acquisition is taken and submitted before the competent authority, the competent authority is under an obligation to offer opportunity of hearing to the objector, either in person or through a legal practitioner. No doubt, thereafter, it is open to the competent authority to reject the objection on the ground that the objection does not question the purpose of the acquisition as set out in sub-section (1) of section 20A of the 1989 Act. But, the competent authority cannot treat the objection as a waste paper, before hearing the objector, on the ground that the written objection is not worth consideration.
31. The decisions that have been cited before us are clear that wherever the statute provides for an opportunity to a person to oppose the acquisition of his land then that person should not be deprived of that opportunity except in rare circumstances. Even in cases where acquisition notifications were coupled with dispensation clause i.e. sub-section (4) of Section 17 of the 1894 Act to deprive a person of his right to object under section 5 A of the 1894 Act, the courts had been strict in allowing invocation of such dispensation power and have consistently deprecated the practice of casual dispensation of the requirement of hearing. Here, under the 1989 Act, there is no provision to dispense with the requirement of hearing on objections under Section 20D of the 1989 Act therefore, in our considered view, once a written objection, under Section 20D, to the acquisition is taken, a duty is cast on the competent authority to take a decision on the objection after hearing the objector or his legal practitioner.
32. The decision of the apex court in Nareshbhai Bhagubhai and others v. Union of India (supra), on which reliance has been placed by the learned counsel for the respondents, though holds that the scope of the objection under section 20D of the 1989 Act is limited to the purpose for which acquisition is made and is not a general right to file objections as under Section 5A of the 1894 Act but, it simultaneously holds that the statute mandates that the order is required to be passed by the competent authority after hearing the land owners. The order cannot precede the hearing of objections. If an order is passed prior to the personal hearing, and enquiry by the Competent Authority, it would be contrary to the statute, invalid, and vitiated by a predetermined disposition. Thus, what is important is that once an objection is taken to the proposed acquisition, an obligation is cast upon the competent authority to hear the objector or his legal practitioner. It is only after hearing, that the merit of the objection can be examined and if the grounds for the objection are not germane to the statutory provisions, the same could be rejected.
33. In this case, from the affidavit dated 12.02.2021 filed by Ram Manohar Agarwal on behalf of respondents 1 and 2, it is clear that the Deputy Collector/Competent Authority, Gautam Budh Nagar reported to the Secretary, Ministry of Railways, Govt. of India, vide letter dated 24.09.2019, that no objection was taken by the land owners despite publication of the notification under Section 20A (4) on 26.02.2019 whereafter the declaration under section 20-D(1) was made. From this, it is clear that there was no adjudication on the objection taken by the land owners.
34. Based on the analysis above, we arrive at the following conclusions: (a) that the petitioners did take written objection to the notification under Section 20 A of the 1989 Act; (b) the objections were taken before the competent authority within the time specified by Section 20D (1) of the 1989 Act; and (c) that their objections were neither entertained nor decided and they were also not heard on their objections, despite the mandate of sub-section (2) of Section 20D of the 1989 Act.
35. As we have found that the mandate of sub-section (2) of Section 20D was not followed, in view of the clear statutory mandate of sub-section (1) of section 20 E that the declaration under sub section (1) of Section 20E could be made only where no objection under sub-section (1) of Section 20D has been taken before the competent authority within the period specified or where the competent authority has disallowed the objections under sub-section (2) thereof, the logical consequence that follows is that the impugned notification, dated 6 November 2019, under sub-section (1) of section 20E of the 1989 Act, is vitiated. The issue no. 2 is decided accordingly.
36. Issue no.3. As we have already found that the impugned declaration under sub-section (1) of section 20E of the 1989 Act stood vitiated, the question that now arises for our consideration is whether on that ground the entire acquisition be invalidated, particularly when the Corporation on assumption that there were no objections had proceeded to substantially complete the project. At this stage, the decision of the Apex Court in Nareshbhai Bhagubhai and others v. Union of India (supra) be noticed wherein, the apex court upon finding that the project was almost complete and quashing of the declaration would result in wastage of public money, instead of quashing the notification, directed payment of compensation at the market rate. The relevant part of the judgment of the apex court in Nareshbhai Bhagubhai and others v. Union of India (supra) is extracted below:-
"34. The issue which remains to be decided is that in the absence of an order passed on the objections under Section 20-D, should the consequential steps be invalidated. We find that the challenge before this Court has been made by the Appellants with respect to a stretch of land admeasuring approximately 6 kms, out of the total stretch of 131 kms. The remaining stretch of land comprising of 125 kms has been acquired, and stands vested in the Government. The Respondents have stated on Affidavit that pre-construction activity and earth work has been completed on most parts of the stretch. Furthermore, most of the bridges are either in progress, or have already been completed.
35. The Senior Counsel representing the Appellants in all the present Civil Appeals, after taking instructions from his clients, submitted that since the land was being acquired for a public utility project, his clients would be satisfied if they were granted compensation by awarding the current rate for acquisition of land. Admittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, Gujarat. In these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action.
36. In Savitri Devi v. State of U.P., this Court held that : (SCC p. 53, para 46) "46. Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5-A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the land owners, developments have taken in these villages and in most of the cases, third party rights have been created. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (supra) came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the land owners in the form of compensation as well as allotment of developed Abadi land at a higher rate i.e. 10% of the land acquired of each of the land owners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively." (emphasis supplied)
37. In the present case, the relief is being moulded by granting compensation to the Appellants, to be assessed under Section 20G of the said Act as per the current market value of the land. The Competent Authority is directed to compute the amount of compensation on the basis of the current market value of the land, which may be determined with reference to Section 20-G(2) of the Act.
38. With respect to the remaining 125 kms stretch of land, the landowners were satisfied with the amount awarded, and have not approached this Court. Under these circumstances, despite our finding that the Respondents have breached the mandatory provisions of the Act, we do not think this is a fit case to set aside the entire acquisition proceedings. The relief granted in the present case is confined to the Appellants herein, and would not become a precedent for other landowners who have not challenged the acquisition proceedings before this Court."
37. In this case also, as we have noticed earlier, out of a total cost of Rs.824 crores of the project, Rs. 614 crores have been spent up to 29.01.2021 and, out of total length of 54.38 kms, only 1.36 kms linear length remains to be completed due to resistance offered by few land-owners. Importantly, the completion of the project to the extent indicated above has been set out in the counter affidavits of which there is no specific denial. In these circumstances, if we set aside the declaration now, it would result in huge wastage of public money as the entire alignment of the freight corridor would have to be redone. Thus, following the decision of the Apex Court in Nareshbhai Bhagubhai and others v. Union of India (supra) prayer of the petitioners for quashing the notifications dated 11.02.2019 and 06.11.2019 is denied. It is however directed that the petitioners of Writ C Nos. 2959 of 2020; 42537 of 2019; and 42577 of 2019 shall be awarded compensation in accordance with the law, subject to proof of their right, calculated at the current market rate. To that extent Writ C Nos.2959 of 2020; 42537 of 2019; and 42577 of 2019 are partly allowed. But as the land of writ petitioners in Writ C No. 43014 of 2019 is not subject matter of acquisition and they have also not challenged the notification, Writ C No.43014 of 2019 is dismissed. The interim orders passed in all these petitions stand discharged.
38. Before parting, we deem it appropriate to require the respondents to hold an inquiry against the person responsible for submission of an incorrect report to the Central Government that no objection was taken by the land owners to the notification under sub-section (1) of Section 20 A of the 1989 Act.
39. Let a copy of this order be sent to the Chief Secretary, Government of U.P. to ensure an enquiry as directed above.
Order Date :- 27.08.2021 Sunil Kr Tiwari