Andhra Pradesh High Court - Amravati
K. Seetharamaiah 82 Ors. vs Secy., Min. Of Road, New Delhi 7 Ors. on 6 September, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
****
WRIT PETITION Nos.13720 OF 2017 and 21718 of 2017
Between:
W.P.No.13720 of 2017:
Kasiraju Seetharamaiah and 82 others
... Petitioner
And
Union of India and 7 others
... Respondents.
JUDGMENT PRONOUNCED ON 06.09.2019
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals Yes
3. Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment?
2
HACJ & MSMJ
WPs_13720 and 21718_2017
* THE HON'BLE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ WRIT PETITION Nos.13720 of 2017 and 21718 of 2017
% 06.09.2019
# Kasiraju Seetharamaiah and 82 others
....Petitioners
v.
$ Union of India and 7 others
.... Respondents
! Counsel for the Petitioners : B.Rachna Reddy.
Counsel for Respondents: Government Pleader for Land
Acquisition
<Gist :
>Head Note:
? Cases referred:
(1) (1985) 4 SCC 369
(2) (2007) 2 SCC 725
(3) (2010) 2 SCC 59
(4) (2006) 12 SCC 753
(5) (1983) 2 SCC 402
(6) (2006) 4 SCC 327
(7) (2013) 1 SCC 745
(8) (2012) 2 SCC 108
(9) (2012) 1 SCC 101
(10) (2015) 6 MhLT 69
(11) (1975) 1 SCR 1
3
HACJ & MSMJ
WPs_13720 and 21718_2017
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION Nos.13720 and 21718 of 2017
COMMON ORDER:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) The petitioners are the owners of different extents of lands in different survey numbers in Devarapalli Village and Mandal, West Godavari District filed writ petitions under Article 226 of Constitution of India seeking Writ of Mandamus. Writ Petition No.13720 of 2017 is filed for the following relief:
"declaring the action of the 6th respondent herein, in issuing file No.RDOKUR - RT10APPL(WSLA)/39/2016-AO- RDO-KOVVUR Roc.No.2504/2016 (NH) (endorsement) dated.02.11.2016 and consequential Roc.No.2504/16/NH-16SH107 (EGK) (endorsement) dt. -02-2016, pursuant to applications made under the Right to Information Act, 2005, in relation to the building (widening/ six lining etc.,) maintenance, management and operation of realigned portion of National Highway 16 SH107 (EGK) on the stretch of land from Km 15.700 to km., 81.400 from Gundugolanu - Kovvuru section, West Godavari District, A.P., whereby the 6th Respondent claims that the multiple factor for calculation of compensation is applicable at 1.25 in rural areas per G.O.Ms.No.389 dt.20.11.2014, instead of 2.00, completely contrary to the Letter NHAI/RO-VJA/RFCLARR/LA/2016-17/1472 dt.26.10.2016 issued by the 2nd Respondent and the consequential Memo No.16022/6/2016/RII.I/2016 dt.23.11.2016, issued by the 3rd Respondent, in pursuance of the determination of market value as per the Right to Fair Compensation Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act 2013), as illegal arbitrary, in violation of the National Highways Act, 1956, the RFCTLARR Act, 2013 in violation of Article 14 and 21 of the Constitution of India and the principles of natural justice and
ii) and consequently to direct the 5th and 6th Respondents to compensate the petitioners land for acquisition of building (widening/ six lining etc.,) maintenance, management and operation of realigned portion of National Highway 16 SH107 (EGK) on the stretch of land from Km., 15.700 to km., 81.400 from Gundugolanu-Kovvuru section/Division West Godavari District in accordance with multiple factor 2.00 pursuant to Letter NHAI/RO-
VJA/RFCLARR/LA/2016-17/1472, dt.26.10.2016 issued by the 2nd 4 HACJ & MSMJ WPs_13720 and 21718_2017 Respondent and the consequential Memo No.16022/6/2016/RII.I/2016 dt.23.11.2016, issued by the 3rd Respondent.
iii) To direct the Respondents to delete and cancel Rule 28(1) of Annexure to G.O.Ms.No 389, Revenue (Land Acquisition) Department dt.20.11.2014." Writ petition No.21718 of 2017 is filed for the following relief.
"(i) to declare the action of the respondent No.6 in issuing arbitrary Endorsements pursuant to applications made under the Right to Information Act 2005 in relation to the building (widening/ six laning etc.) maintenance, management and operation of realigned portion of National Highway 16 SH107 (EGK) on the stretch of land from Km 15.700 to km 81.400 from Gundugolanu-Kovvuru section, West Godavari, vide Roc.No.2504/2016 (NH) dt.02.11.2016 and consequential Roc.No.2504/16/NH-16 SH 107 (EGK) dt.
12. 2016 whereby the 6th respondent claims that the multiple factor for calculation of compensation is applicable at 1 25 in rural areas per G.O.Ms.No.389 dt. 20.11.2014 instead of 2.00, completely contrary to the Letter NHAI/RO-VJA/RFCLARR/LA/2016-17/1472 dt.26.10.2016 issued by the 2nd respondent and consequential Memo No.16022/6/2016/RII.1/2016 dt.23.11.2016, issued by the 3rd respondent, in pursuance of the determination of market value as per the Right to Fair Compensation Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 (RFCTLARR Act 2013) as illegal, arbitrary, in violation of the National Highways Act, 1958, the RFCTLARR Act 2013, in violation of Article 14 and 21 of the Constitution of India and the principles of natural justice and
ii) consequently to direct the 5th and 6th respondent to compensate the petitioners for land acquisition for building (widening/ six laning etc.) maintenance, management and operation of realigned portion of National Highway 16 SH107(EGK) on the stretch of land from Km 15.700 to km 81.400 from Gundugolanu -Kovvuru section, West Godavari, in accordance with multiple factor 2.00 pursuant to Letter NHAI/RO-VJA/RFCLARR/LA/2016- 17/1472 dt.26.10.2016 issued by the 2nd respondent and the consequential Memo No.16022/6/2016/RII.1/2016 dt.23.11.2016 issued by the 3rd respondent and to pass other order or orders as the Hon'ble Court may deem fit and proper in the circumstances of the case." The petitioners are owners of different extents of land in different survey numbers of Devarapalli Village and Mandal, West Godavari District and that pursuant to notification of the Government of India in the Ministry of Road transport and Highways, number S.0.2848 E dated 2nd September, 2016, published in Gazette of India, 5 HACJ & MSMJ WPs_13720 and 21718_2017 Extraordinary, Part II, Section, Sub-Section (ii) issued under sub- section (1) of section 3A of the National Highways Act 1956 (for short "NH Act 1956"), the Central government declared its intention to acquire the land specified in the Schedule for building (widening/6 lining etc.,) maintenance, management and operation of realigned portion of National Highway No.16 on the stretch of land from Km., 15.7000 to km., 81.400 from (Gundugolanu-Kovvuru) section in the district of West Godavari in Andhra Pradesh. The said notification has been published in 'The Hindu," and "Sakshi' both dated. 09.09.2016 under Şub-section (3) of section 3A of the said NH Act, 1956. Government also called for objections in view of Section 3C(1) of the NH Act, 1956 and specific objections were disposed of pursuant to Section 3 (2) of the said Act vide rec.no.487/EGK/NHAI/2016/41 dt.06.11.2016 by the Competent authority. Pursuant to Sub-Section (1) 3D of the said Act, the competent authority has also submitted its report to the central government and the central government has also declared the said land pursuant to sub-section (2) of Section 3D of the said Act, dated 30.01.2017.
Respondents issued notification as per Section 3G (3) of the NH Act, 1956, for conducting of the Award inquiry from 15.02.2017 to 2.03.2017 in Devarapalli Mandal, which was published in Sakshi and Hindu on 13.02.2017, where objections were once again submitted to the respondents. It is submitted that the principle grievance of the petitioners is that the compensation sought to be given by the respondent No.6 is not in accordance with the NH Act, 1956, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "Act 30 of 2013"), 6 HACJ & MSMJ WPs_13720 and 21718_2017 and orders passed by the respondent Nos.1 and 2 in accordance with the said Acts.
A notification No.11011/30/2015-LA was issued by the respondent No.1 dated 31.03.2016, Government of India's Ministry of rural development's notification No.S.O.425(E) dated 09.02.2016 was brought into effect and to the notice of all concerned authorities dealing with acquisition of land and compensation, under the NH Act, 1956 for compliance.
The respondent No.1 vide No.NH11011/30/2015-LA dated 08.08.2016, while issuing instructions on the applicability of the Act 30 of 2013, to the NH Act, 1956, have stated that for the purpose of determination of compensation in accordance with the First Schedule to the Act 30 of 2013, for the acquisition of land under the NH Act, 1956, the multiplication factor by which the market value is to be multiplied in case of rural area shall continue to be 2 (two) or as specified by the appropriate government, in terms of the provisions of the Act 30 of 2013, whichever is lower with effect from 01.01.2015. The said communication of the respondent No.1 was sent by the respondent No.2 to all ROs and PIUs vide NHAL/11013/DGM(LA&Coord)/RECTLARR/2016/FTS-3247/87253, dated 22.08.2016. Pursuant to the above mentioned communication vide Ref.No.11082/LA/PIUNINHAI/2016/1182 dated 23.08.2016, the project Director, NHAI, PIU, Vijaywada, reiterated the communication to the respondent No.6 candidly, stating that the multiplication factor by which the market value is to be multiplied in case of rural area shall continue to be 2 (two) or as specified by the appropriate government, according to the Act 30 of 2013 whichever is lower w.e.f. 01.01.2015.
7
HACJ & MSMJ WPs_13720 and 21718_2017 While the things stood thus, respondent No.6 in total contradiction to the above mentioned orders, made an endorsement and communicated to the petitioners vide Roc.no. 2504/2016 (NH)dt., 02.11.2016 and follows it up with another Endorsement vide Roc. No. 2504/16/NH-16 SH 107(EGK) dated Nil-12.2016, in complete violation of orders as laid down by respondent Nos.1, 2 and 3 and directions of the State Executive, brazenly states that as per existing norms and rules u/s 26 and 30 of RFCTLARR Act 2013, (Act 30 of 2013) and as amended by the State Government of A.P. Notification vide GOMS No. 389 Revenue (LA) Department dated 20.11.2014, the payment of compensation will be calculated at 1.25 in rural areas other than the scheduled areas and 1.50 for Scheduled (tribal) areas subject to any further notification for the instant project.
Rules were enacted exercising power conferred by Section 109 of the Act 30 of 2013. Rule 28 made it clear that the multiplication factor under 2nd component of table given in the First Schedule of the Act 30 of 2013 for all rural areas shall be 1.25 other than scheduled areas and 1.50 for scheduled (tribal) areas subject to any further notifications.
The said multiplication factor of 1.25 to 1.50 has been arrived at, allegedly pursuant to Section 109 of the Act 30 of 2013, by conveniently ignoring consideration of Section 107, which unequivocally states that - "Nothing shall prevent any State from enacting any law to enhance or add to the entitlements enumerated under this Act which confers higher componsation than payable under this Act or make provisions for rehabilitation or resettlement which is more beneficial than provided under this Act." It is therefore contended that a state government can only pass laws to enhance or 8 HACJ & MSMJ WPs_13720 and 21718_2017 better the entitlements vis-a-vis higher compensation but not to reduce the same which would be directly contravening and in violation of the provisions of Section 107 of the Act 30 of 2013, as overreaching state powers vested in them. It is therefore submitted that any authority to make rules by the state government pursuant to Section 109 is subject to the explicit provision i.e. Section 107 of the Act 30 of 2013.
It is further contended that not only the provisions of the Act 30 of 2013 been misinterpreted under G.O.Ms.No. 389 dated.20.11.2014, but also the communications by the respondent Nos.1, 2 and 3 vis-à-vis the multiplication factor for determination of market values being 2 (two), (all communications and orders clearly being subsequent to 20.11.2014) for all future NH and NHAI projects seems bent on flouting the said orders by reiterating that the compensation for the said project i.e., (widening/ 6 lining etc.,) maintenance, management and operation of realigned portion of National Highway No.16 on the stretch of land from Km., 15.7000 to km., 81.400 from (Gundugolanu-Kovvuru) section, in West Godavari district, would be in accordance with multiplication factor 1.25 and not 2.00 (two) as ordered and communicated. The decision to apply multiplication factor 1.25 instead of 2.00 is in complete violation of Article 14 of the Constitution of India and Section 26 (2) read with 2nd component of table given in First Schedule of Act 30 of 2013 since the owners of the land acquired for the purpose of present project would be put to serious loss if the multiplication factor 2.00 is not applied to their lands, as the multiplication factor applied to the lands in Poranki village acquired for widening of road from Vijayawada to Machilipatnam vide letter NHAI/RO-VJA/RFCLARR/LA/2016- 9 HACJ & MSMJ WPs_13720 and 21718_2017 17/1472 dated 26.10.2016, but the petitioners are discriminated by applying multiplication factor 1.25, thereby they are put to economic loss on account of application of multiplication factor notified in G.O.Ms.No.389, Revenue (Land Acquisition) Department, dated 20.11.2014.
Respondent Nos.1, 2 and 8 filed common counter admitting the notification issued for proposed acquisition of land and the correspondence between respondent Nos.1,2,3 and 6. It is the specific contention of the respondents that the procedure for acquisition of land and the matters connected thereto are elaborately spelt out in the National Highways Act, 1956. Section 3-A of the Act deals with the powers to acquire land for the purposes management and operation of National Highways. Section 3-B thereof refers to the power and authority of the Central Government to enter into any land for the purposes of inspection, survey, measurement, valuation or enquiry of such land for the purposes of acquisition and Section 3-C deals with hearing of objections and claims of the owners and/or occupiers thereof. Section 3-D deals with declaration of acquisition and Section 3-G deals with determination of amount payable as compensation.
Pursuant to the Policy of Central Government the Four/Six lane divided carriageway project from Gundugolanu - Kovvur village for KM.15.700 to KM.57.550 Section of NH-16 was entrusted to the National Highways Authority of India for implementation and maintenance. It is contended that under the above project, four lane divided carriageway was proposed from KM.15.700 to KM 57.550 near Yernagudem Village and six lane divided carriageway proposed from KM 57.550 to KM 81.400 at Kovvur Village.
10
HACJ & MSMJ WPs_13720 and 21718_2017 It is further pleaded that in line with the objectives of the NH Act, the respondent has taken up implementation of above project work. Accordingly, various private lands that were affected under Four/Six laning of the National Highways from KM.15.700 to KM 81.400 from Gundugolanu to Kovvur were acquired/ being acquired in accordance with the provisions of the National Highways Act, 1956 by following the procedures contained in Sections 3-A to 3-G. Notification No. SO 2848 (E) dated 02.09.2016 under Section 3A of National Highway Act 1956 was issued for acquisition of land including land belonging to writ petitioners and the substance of notification was published in Saakshi (Telugu) and The Hindu (English) dailies on 09.09.2016. The objections filed by the land owners under Section 3C of NH Act were disposed of by duly following procedure by respondent No.6 vide proceedings dated 06.11.2016. Consequent to the disposal of objections, notification under Section 3D Vide Gazette Notification S.O.No.273 (E) was issued on 30.01.2017. The publication of 3(D) notification the lands covered under the acquisition shall vest absolutely with the Central Government free from all encumbrances. The award enquiry notification was issued under section 3G (3) of NH Act, calling all land owners, interested persons to appear before CALA i.e. respondent Nos.5 and 6 along with supporting original documents from 15.02.2017 10 02.03.2017 same was published in Saakshi Telugu and The Hindu English dailies on 03.02.2017. It is submitted that the award enquiry has been completed by respondent Nos.5 and 6 herein and passing of awards for all the villages under the stretch from Gundugolanu to Kovvur have been completed.
11
HACJ & MSMJ WPs_13720 and 21718_2017 The Ministry of Road Transport and Highways had issued a notification dated 28.08.2015 according to which only the provisions relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule of the Act 30 of 2013 were made applicable to all cases of land acquisition undertaken by NHAI for road widening projects.
In exercise of the powers conferred by section 109 of the Act 30 of 2013 the multiplication factor under item (2) of the First Schedule for rural areas shall be 1.25 other than schedule areas and 1.50 for scheduled (tribal) areas and in the case of Urban areas is one (1). Therefore, the multiplication factor as mentioned above is applicable to the present National Highways Road Project from Gundugolanu to Kovvur section vide Rule 28 of the Rules framed by State and the same rates are applicable to the present Project of NHAI for formation of road from Gundugolanu to Kovvur. Therefore, Sections 26 to 30 and First Schedule of the Act 30 of 2013 would be followed for determination of market value for the lands being acquired under NH Act.
Government of Andhra Pradesh vide G.O.M.S.No.389 Revenue (Land Acquisition) Department issued notification dated 20.11.2014 in exercise of the powers conferred by section 109 of the Act 30 of 2013, as per which the multiplication factor under item (2) of the First schedule for rural areas shall be 1.25 other than scheduled areas and 1.50 for scheduled (tribal) areas and the multiplication factor by which the market value is to be multiplied in the case of Urban areas is one (1). The First Schedule of Act 30 of 2013 is applicable to the 12 HACJ & MSMJ WPs_13720 and 21718_2017 present National High Ways Road Project from Gundugolanu to Kovvur section vide Rule 28 of the Rules framed by State and the same rates are applicable to the present project of NHAI for formation of road from Gundugolanu to Kovvur.
Deputy Secretary to the Government of India, Ministry of Road Transport & Highways vide circular No. NH-11011/30/2015/LA dated: 08.08.2016 reiterated the applicability of Act 30 of 2013 to the NH Act -1956 for the purpose of determination of compensation in accordance with the First Schedule to the Act 30 of 2013 for the acquisition of land under the NH Act-1956. The notification (SO 425) dated 09.02.2016 is applicable only to Union Territories (except Puducherry). It is contended that other than the cases of land acquisition in Union Territories, the notification shall apply to cases of land acquisition only when a special notification declaring such land acquisition/project as the purpose of Union is issued under Section 3(e) (v) of the Act. The multiplication factor by which the market value is to be multiplied in case of rural area shall continue to be 2 (two) or as specified by the appropriate Government in pursuance of the provisions of the Act 30 of 2013 whichever is lower, with effect from 01.01.2015 and the said instructions were communicated by the Regional office NHAI to PIU Vijayawada vide letter dated 22.08.2016. The circular instruction was communicated by the DGM (LA) and coordination vide his letter NHAI 11011/DGM (LA) and Co-ord with RFCTLARR/2016/FTS - 3247/87253 dated 22.08.2016.
The Project Director NHAI, PIU Vijayawada while communicating the reference No.11082/LAPIU/NHAI/2016/1182 dated 23.08.2016 reiterated that notification (SO 425) dated:
09.02.2016 is applicable only to Union Territories (except Puducherry) 13 HACJ & MSMJ WPs_13720 and 21718_2017 or as specified by the appropriate Government according to the Act 30 of 2013 whichever is lower with effect from 01.01.2015.
While the matters stood thus, Government of Andhra Pradesh Transport, Roads and Buildings (R.II) Department vide Memo No.16022/6/2016/R.II.1/2016 dated 23.11.2016 issued orders to increase the multiplication factor from 1.25 to 2 for determination market value as per the RFCTLARR Act-2013 for all NH and NHAI road projects for determination of compensation and requested the District Collectors to take necessary action. The Government Andhra Pradesh Transport Roads & Buildings (R.II) Department vide Memo No.16022/6/R.II.1/2016 dated 16.03.2017 issued instructions to the District Collectors that the earlier orders dated: 23.11.2016 were cancelled and all are requested to follow the guidelines in force for fixation of compensation in land acquisition cases as per the Act 30 of 2013 and subsequent notification thereon.
In view of cancellation of orders dated 23.11.2016, earlier orders issued by the Government of Andhra Pradesh vide G.O.Ms.No.389 Revenue (LA) Department dated 20.11.2014 in exercise of the powers conferred by Section 109 of the Act 30 of 2013 (30 of 2013) are applicable to present acquisition proceedings. Accordingly, the multiplication factor under component No.2 of the First schedule for rural areas shall be 1.25 other than schedule areas and 1.50 for scheduled (tribal) areas and in the case of urban areas is one (1) and the same rates of multiplication are applicable to the present National Highways Road Project from Gundugolanu to Kovvur section.
It is also contended that since the Government of Andhra Pradesh has issued notification to increase the multiplication factor 14 HACJ & MSMJ WPs_13720 and 21718_2017 from 1.25 to 2 in the case of National Highway between Vijayawada - Machilipatnam, the petitioners are not entitled to claim such relief for the present project. In view of cancellation of orders dated 23.11.2016, earlier orders issued by the Government of Andhra Pradesh vide G.O.Ms.No.389 Revenue (LA) Department dated 20.11.2014 are applicable to the present acquisition proceedings undertaken by NHAI.
The respondents took all possible steps to pay compensation in accordance with law and on filing such application under Right to Information Act, endorsements were issued to the petitioners, which are now challenged in the writ petitions, thus, respondent Nos.1, 2 and 8 did commit no error in passing award fixing multiplication factor at 1.25 for the land acquired for the proposed project from Gundugolanu - Kovvuru stretch, thereby the respondents cannot be made liable for payment of compensation as claimed by the petitioners.
Respondent No.6 is Competent Authority (LA) and Revenue Divisional Officer, Kovvuru filed separate counter. Most of the allegations made in the counter are nothing but reiteration of allegations made in the counter filed by respondent Nos.1, 2 and 8. Therefore, to avoid repetition, they are not reiterated.
Respondent No.6 specifically pleaded that the Special Chief Secretary Transport, Roads and Buildings (R.II) Department, Government of Andhra Pradesh in Memo No.16022/6/2016/R.II.1/2016 dated 23.11.2016 orders issued to increase the multiplication factor from 1.25 to 2.00 for determination of Market Value as per the Act 30 of 2013 for all National Highways and NHAI Road Projects for determination of land acquisition 15 HACJ & MSMJ WPs_13720 and 21718_2017 compensation. Again the Chief Secretary Transport, Roads and Buildings (R.II) Department, Government of Andhra Pradesh issued circular instructions vide memo No.16022/6/R.II.1/2016 dated 16.03.2017 duly cancelling the memo No.16022/6/2016/R.II.I/2016 dated 23.11.2016 and issued instructions to the District Collectors to follow the procedure laid down in G.O.Ms.No.389 Revenue (LA) Department dated 20.11.2014. Therefore, the question of applying multiplication factor 2 does not arise for the present project. Thereby, the petitioners are entitled to claim compensation as per rates specified in G.O.Ms.No.389 dated 20.11.2014 not based on the memo or any order. Even otherwise, multiplication factor shall be notified by the competent authority as defined under the Act and in the absence of any notification, the payment of compensation at the enhanced rate is contrary to the provisions and rules framed under the Act. Therefore, the petitioners are not entitled to claim compensation by applying multiplication factor 2 and requested to dismiss the writ petitions.
Learned counsel for the petitioners contended that the petitioners are not treated equally on par with the owners of land acquired at Poranki for road widening from Vijayawada to Machilipatnam and they are extended benefit of multiplication factor '2' by memo No.16022/6/2016/R.II.1/2016 dated: 23.11.2016. Though the petitioners are equal with the land owners at Poranki and the purpose is also road widening and the lands of the petitioners are adjacent to the National Highway; potentiality of the lands is higher than the potentiality of the lands at Poranki, without considering the potentiality and proximity of the land to the National Highway and its value, the respondent No.6 fixed the multiplication factor at 1.25 16 HACJ & MSMJ WPs_13720 and 21718_2017 withdrawing the earlier memo dated 23.11.2016 by issuing another memo No.16022/6/2016/R.II.1/2016 dated 16.03.2017, consequential failure to extend the benefit of multiplication factor '2' as adopted in case of owners of land acquired for the purpose of widening of road from Vijayawada to Machilipatnam is violative of Article 14 of the Constitution of India.
It is also contended that when the Central Government issued letter requesting the State to extend the same benefit to the petitioners as extended to the owners of land at Poranki, denial to extend such benefit is illegality and apart from that Rule 28 (1) of the Rules framed under G.O.Ms.No.389, Revenue (Land Acquisition) Department, dated 20.11.2014 is contrary to the purport of the intention of the Legislature, when the Legislature permitted the States to frame certain rules fixing multiplication factor and at the same time, it permits States to fix compensation, which is beneficial to the farmers or land owners. Ignoring several factors as stated above, respondent No.6 fixed the multiplication factor at 1.25 for the land acquired for the purpose of widening road at Gundugolanu-Kovvuru, West Godavari District.
It is further contended that when the respondents applied multiplication factor '2' to the land owners of Poranki and the Central Government addressed a letter to the State to extend the same benefit, failure to extend the same benefit to the petitioners is nothing but breach of promise and that the respondent No.6 now cannot contend that memo dated 23.11.2016 is not applicable to the land acquired for the purpose of road widening belonging to the petitioners and it is hit by promissory estoppel and placed reliance on the judgments of Apex Court in "Union of India v. Godfrey Philips 17 HACJ & MSMJ WPs_13720 and 21718_2017 India Limited1", "A.P.Steel Re-Rolling Mill Limited v. State of Kerala2" and the Judgment of Chhattisgarh High Court in "Anita Agrawal v. State of Chhattisgarh (W.P.(Civil) No.2813 of 2016 and batch decided on 30.10.2018" in support of his contentions and requested to quash Rule 28 (1) of Annexure to G.O.Ms.No.389, Revenue (Land Acquisition) Department dated 20.11.2014 by applying multiplication factor to the lands of petitioners acquired for the purpose of road widening of National Highway No.16 from Gundugolanu-Kovvuru Learned Government Pleader for respondent No.6 contended that it is for the State to decide appropriate multiplication factor for the land acquired depending upon various factors and the lands acquired at Poranki cannot be equated with the land at Gundugolanu and other villages for the purpose of road widening. Poranki is, now, part and parcel of Vijayawada City and it is proximate to the State Capital at Amaravati, the facilities available at Poranki are totally different from the facilities available at Gundugolanu - Kovvuru, West Godavari District and taking into consideration of various factors for determination of multiplication factor, respondent No.6 fixed the multiplication factor at 1.25. It is also further contended that First Schedule under Act 30 of 2013 specifies the procedure for fixing multiplication factor and notification is required to the issued by the State Government as defined under Section 3 (e) of Act 30 of 2013, but in case of Poranki lands, no notification was issued fixing multiplication factor at '2', but issued Memo No.16022/6/2016/R.II.1/2016 dated 23.11.2016 and the same was withdrawn by issuing another Memo No.16022/6/2016/R.II.1/2016 1 (1985) 4 SCC 369 2 (2007) 2 SCC 725 18 HACJ & MSMJ WPs_13720 and 21718_2017 dated 16.03.2017. Issue of memo is not contemplated under First Schedule of Act 30 of 2013 and notification is required to be issued by the State Government to apply multiplication factor. Therefore, when the respondent No.6 committed irregularity, the same cannot be legalised by this Court and direct the State to apply the same multiplication factor for the lands covered by the present acquisition and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
(1) Whether the owners of the land acquired by the Government for the purpose of road widening of Gundugolanu - Kovvuru stretch are discriminated from the owners of land at Poranki i.e. applying multiplication factor '2' for the lands acquired by the State for the purpose of road widening from Vijayawada to Machilipatnam?
(2) Whether the multiplication factor fixed by the State under Rule 28 (1) of Annexure to G.O.Ms.No.389, Revenue (Land Acquisition) Department dated 20.11.2014 i.e. 1.25 for the rural areas is in accordance with the Act 30 of 2013? If so, whether Rule 28 (1) of Rules framed by G.O.Ms.No.389, Revenue (Land Acquisition) Department dated 20.11.2014 is liable to be struck down?
P O I N T No.1:
It is undisputed fact that the lands of the petitioners, who are owners of different extents of land in different survey numbers between Gundugolanu and Kovvuru and those lands were acquired 19 HACJ & MSMJ WPs_13720 and 21718_2017 by the Government for widening of road from Km. 15.700 to Km.
81.400 started from Yarnagudem to Kovvuru. Revenue Divisional Officer, Kovvuru Division inspected the lands proposed for acquisition and submitted Section 3 D (1) proposal as required under NH Act and got published the same in S.O.No.273 (E) Gazette of India No.243 dated 30.01.2017 and 3G (3) notification was published in daily newspapers Sakshi and Hindu on 13.02.2017 as required under the NH Act. Issue of notifications and acquisition of lands of the petitioners for the purpose of widening of roads is not disputed by any of the parties. However, the dispute is only with regard to fixation of compensation on par with market value applying multiplication factor to the lands acquired by the Government.
In view the undisputed facts narrated above, it is appropriate to advert to various provisions of Act 30 of 2013, the NH Act, 1956 and the National Highways Authority of India Act, 1988 As per section 13 of the National Highways Authority of India Act, 1988, National Highway Authority of India may acquire land compulsorily for execution of its projects. Any land required by the Authority for discharging its functions under the Act shall be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of the National Highways Act, 1956. Thus, the work of road widening is also considered as discharging its function by the National Highways Authority of India and if any land is required by the Authority, then that acquisition of land shall be deemed to be land needed for a public purpose and such land can be acquired under the provisions of the National Highways Act, 1956.
But what is the procedure to be followed for payment of compensation is not specified under the Act. However, National 20 HACJ & MSMJ WPs_13720 and 21718_2017 Highways Authority of India addressed letters to the State to fix multiplication factor applicable to the lands requisitioned by the National Highways Authority of India by letters dated 26.10.2016.
Therefore, the competent authority has to fix the multiplication factor applicable to the lands depending upon the nature of lands to be acquired by the State. Section 109 of the Act 30 of 2013 empowers the appropriate Government to make rules relating to several provisions specified in sub-section (2) clause (a) to (u). But all the clauses are not necessary. However, clause (t) and (u) are relevant for the purpose of deciding the real controversy.
Clause (t) of sub-section (2) of Section 109 of Act 30 of 2013 permitted the State to frame rules as to the manner of publication wherever the provisions of the Act provide for and clause (u) empowers the State to frame rules with regard to any other matter which is required to be or may be specified under the Act. Section 30 (2) of the Act 30 of 2013 enables the Collector to issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule. Thus, the State is the competent authority to fix multiplication factor, which is specified in first schedule of Act 30 of 2013. First Schedule of Act 30 of 2013 specified various components for payment of compensation to land owners. Various columns of table specify the mode of fixation of compensation, 2nd component of the table is extracted hereunder for better appreciation.
Serial Component of Manner of Date of
compensation package in determination of determination of
Number
respect of land acquired value value
under the Act
2 Factor by which the 1.00 (One) to 2.00
market value is to be (Two) based on the
multiplied in the case of distance of project
rural areas from urban area,
as may be notified
by the appropriate
Government.
21
HACJ & MSMJ
WPs_13720 and 21718_2017
According to 2nd component, in rural areas the multiplication factor is 1.00 (One) to 2.00 (Two) based on distance of project from urban area as may be notified by the appropriate Government. The Central Government issued notification under Section 30 (2) of Act 30 of 2013 vide S.O.425(E) dated 09.02.2016 published in Gazette of India, Pt.II, Section 3 (ii), No.364, dated 09.02.2016 specifying the multiplication factor and notified that in case of rural areas, the factor by which the market value is to be multiplied shall be 2.00 (two). Therefore, the multiplication factor applicable to the land acquired by the Central Government is 2.00 (two) as per the notification. But as seen from 2nd component of the table extracted above, the multiplication factor is between 1.00 (One) to 2.00 (Two) based on the distance of project from urban area, "as may be notified by the appropriate Government." The words "as may be notified by the appropriate Government" assumes importance in the present case. The words "appropriate Government" is defined under Section 3 (e) of Act 30 of 2013, which is as follows:
"(e) ―appropriate Government‖ means,--
(i) in relation to acquisition of land situated within the territory of, a State, the State Government;
(ii) in relation to acquisition of land situated within a Union territory (except Puducherry), the Central Government;
(iii) in relation to acquisition of land situated within the Union territory of Puducherry, the Government of Union territory of Puducherry;
(iv) in relation to acquisition of land for public purpose in more than one State, the Central Government, in consultation with the concerned State Governments or Union territories; and
(v) in relation to the acquisition of land for the purpose of the Union as may be specified by notification, the Central Government: Provided that in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such District shall be deemed to be the appropriate Government"22
HACJ & MSMJ WPs_13720 and 21718_2017 From bare reading of Section 3 (e) (i) of the Act 30 of 2013 in relation to acquisition of land situated within the territory of a State, the State Government is the appropriate Government. The words used in 2nd component of table given in First Schedule the appropriate Government for the present case refers to State i.e. respondent No.6 herein. Therefore, the State alone is competent authority to notify the multiplication factor applicable to Rural areas as per 2nd component of table given in First Schedule under Section 30 (2) of Act 30 of 2013. In exercise of powers conferred under Section 109 of the Act, keeping in mind the scope of Section 107 of Act 30 of 2013, State framed certain rules, which is subordinate or delegated legislation notified in G.O.Ms.No.389 dated 20.11.2014. Rule 28 (i) is relevant, which deals with multiplication factor applicable to the rural areas for payment of compensation, which is extracted hereunder:
"28.Compensation -
(1) The compensation shall be calculated as per the provisions laid down under section 26 to section 30 read with the First Schedule of the Act and paid to all parties whose land or other immovable property or assets attached to the land or building have been acquired. The multiplication factor under item(2) of the First Schedule for rural areas shall be 1.25 other than scheduled areas and 1.50 for scheduled (tribal) areas subject to any further notification as may be notified by Government.
Thus, the State fixed multiplication factor at 1.25 for the land situated in rural areas acquired by the State Government.
However, National Highway Authority of India addressed a letter dated 26.10.2016 to the Special Chief Secretary, TR & B Department, Government of Andhra Pradesh while referring to meeting held on 19.08.2016 at Vizag between the Officials of National Highways Authority of India and the then Chief Minister of Andhra Pradesh, as 23 HACJ & MSMJ WPs_13720 and 21718_2017 the then Chief Minister of Andhra Pradesh conveyed his willingness to issue instructions from Government of Andhra Pradesh for increasing the multiplication factor 2 (Two) from 1.25 for determination of market value as per the Act 30 of 2013 for rural areas and requested to extend the same benefit to the land owners of the present project i.e. to apply multiplication factor '2' instead of '1.25' Government of Andhra Pradesh admittedly increased the multiplication factor to '2' to the land owners of Poranki near Vijayawada for widening of road by issuing Memo dated 23.11.2016, however it was withdrawn by issuing another Memo dated 16.03.2017. Therefore, taking advantage of this letter, learned counsel for the petitioners would contend that same benefit has to be extended to the petitioners applying multiplication factor '2' to the lands acquired by the State for the purpose of road widening between Gundugolanu-Kovvuru. Undoubtedly, the State issued Memo No.16022/6/2016/RII.I/2016 dt.23.11.2016 increasing multiplication factor from 1.25 to 2 for the lands requisitioned by National Highways Authority of India at Poranki. But the very issue of Memo dated 23.11.2016 is contrary to the requirement under 2nd component of First Schedule read with Section 30 (2) and Section 109 of Act 30 of 2013.
As per Section 107 of Act 30 of 2013 the State has power to enact any law more beneficial to affected families on account of acquisition of their property and to enhance or add to the entitlements enumerated under the Act which confers higher compensation than payable under the Act or make provisions for rehabilitation and resettlement which is more beneficial than provided under the Act. The provisions of the Act permit the State to enact appropriate law or add anything for the benefit of the owners of the 24 HACJ & MSMJ WPs_13720 and 21718_2017 lands acquired. By exercising power under Section 109 of the Act 30 of 2013, G.O.Ms.No.389 dated 20.11.2014 was issued framing appropriate rules though multiplication factor is between 1.00 to 2.00 in the First Schedule for the lands acquired in rural areas, it must be between 1.00 to 2.00, but the State applied multiplication factor for the lands in rural areas acquired or to be acquired. When the Act permits the State to frame rules for applicable multiplication factor in the rural areas margin of 1.00 is given and the State may frame rules for application of multiplication factor under Section 109 of the Act. Therefore, 2nd component of table given in the First Schedule of the Act 30 of 2013 requires notification. When the Act says that multiplication factor requires to be notified, it must be done as directed under law. What is "notification" is not defined, but the word "Gazette" is defined under Section 2 (39) of the General Clauses Act, 1897. It defined "official Gazette" or "Gazette" shall mean the Gazette of India or the Official Gazette of a State.
Therefore, when the rule prescribes specific procedure to be followed, State has to follow such rules and issue notification.
Similarly, Sections 15 and 21 of the A.P. General Clauses Act, 1891 are alone applicable to the present case, which are as follows:
"15. Revocation and alteration of rules, bye laws and orders:.- Where an Act confers a power to make any rules or bye-laws, or to issue orders, the power shall be construed as including a power exercisable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend or vary the rules, bye laws or orders.
21. Publication of orders and notifications in the Official Gazette:.- Where in any Act, or in any rule passed under any Act, it is directed that any order, notification or other matter shall be notified or published, such notification or publication shall, unless the Act otherwise provides, be deemed to be duly made if it is published in the [Official Gazette]."25
HACJ & MSMJ WPs_13720 and 21718_2017 A conjoint reading of Sections 15 and 21 of the A.P.General Clauses Act, 1891, makes it clear that when the Act specifies specific mode of notification, the multiplication factor needs to be published in the official Gazette, as such, notification is mandatory to apply multiplication factor for the lands acquired in rural areas or in any other areas in terms of Section 30 (2) read with 2nd component of table given in First Schedule of the Act 30 of 2013 as it specifies notification, that means a notification must be published in the Gazette of the State, added to that exercising power under Section 109 of Act 30 of 2013 rules are notified in Gazette Vide G.O.Ms.No.389, Instead of issuing notification in respect of lands covered by the acquisition at Poranki, the Government issued memo increasing multiplication factor from 1.25 to 2.00 for payment of compensation to the land owners of the acquired land at Poranki. Issue of memo by the State is contrary to 2nd component of First Schedule under Act 30 of 2013. Therefore, the same illegal direction cannot be extended to the petitioners herein.
There is lot of difference between notification and memo. Notification means notifying particular Act or Rule in the Gazette of State. Only from the date of such publication in the Gazette, the rule enacted is deemed to have been came into force unless the rule otherwise specifies.
A memorandum, more commonly known as a memo, is a short message or record used for internal communication in a business, and primary form of internal written communication. Therefore, the memo is only internal correspondence between the two branches of the department or two offices, but that is not the communication to the public. Communication to the public is only by way of Gazette notification of the State. In view of the language used in 2nd 26 HACJ & MSMJ WPs_13720 and 21718_2017 component of the table given in First Schedule of Act 30 of 2013, the multiplication factor is required to be notified in the Gazette of the State in exercise of the power conferred on the State under Section 109 of the Act. By exercising power by the Central Government, it is appropriate Government as defined under Section 3 (e) of the Act 30 of 2013, issued notification dated 09.02.2016, which we referred in the earlier paragraphs, fixing the multiplication factor as '2.00' for the lands acquired by the central Government. The central Government clarified the same by addressing several letters as referred in the counter filed by the respondent Nos.1, 2 and 8.
The main endeavour of the learned counsel for the petitioners is that the benefit of multiplication factor '2.00' as applied allegedly to the owners of the lands at Poranki, is to be extended to the petitioners also, otherwise it amounts to discriminating the petitioners from the owners of the lands at Poranki, as the petitioners herein are similarly placed with the owners of lands at Poranki. As discussed above, issue of memo applying multiplication factor 2.00 to land owners of Poranki is contrary to statutory requirement and the memo was already withdrawn and such illegal benefit cannot be extended to the petitioners by order of this Court as held in "Union of India and Others vs. M.K. Sarkar3" wherein the Supreme Court held as under:-
"There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This Court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of courts for perpetuating the same irregularity or illegality in their favour also on the reasoning that they have been denied the benefits which have been illegally extended to others. (See Chandigarh Admn.3
(2010) 2 SCC 59 27 HACJ & MSMJ WPs_13720 and 21718_2017 v. Jagjit Singh, Gursharan Singh v. NDMC, Faridabad CT Scan Centre v. D.G. Health Services, State of Haryana v. Ram Kumar Mann, State of Bihar v.
Kameshwar Prasad Singh and Union of India v. International Trading Co.). 26. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may not be entitled to the relief has been given relief illegally, is not a ground to grant relief to a person who is not entitled to the relief."
(emphasis supplied) Hence, applying the said principle, we hold that the benefit of memo dated 23.11.2016 cannot be extended to the petitioners.
One of the contentions urged before this Court by the learned counsel for the petitioners is that State cannot resile from the promise which already made to the petitioners. No doubt, National Highways Authority of India addressed letter to the State to extend benefit of Memo No.16022/6/2016/R.II.1/2016 dated 23.11.2016 issued in respect of the lands acquired by the State in Poranki for widening of road from Vijayawada to Machilipatnam i.e. multiplication factor 2 to the land belonging to the petitioners. The request of National Highways Authority of India to extend benefit given to land owners of Poranki does not amount to promise. Thereby, the question of promissory estoppel does not arise. Learned counsel for the petitioners relied on the judgment of Apex Court in "Union of India v. Godfrey Philips India Limited" (referred supra), wherein the Apex Court held that the true principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and 28 HACJ & MSMJ WPs_13720 and 21718_2017 unequivocal promise or representation which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties.
But the respondent No.6 did not make any promise to apply the multiplication factor '2.00' as per the memo No.16022/6 /2016/R.II.1/ 2016 dated 23.11.2016. Respondent Nos.1 and 2 addressed letter dated 26.10.2016 to the Special Chief Secretary, TR & B Department, Government of Andhra Pradesh to extend the benefit of multiplication factor '2.00' to the petitioners herein, but there was no response from the respondent No.6 to extend such benefit to the petitioners herein. In the absence of any promise by the respondent No.6, mere addressing letters by the respondent Nos.1 and 2 would not constitute a promise for application of multiplication factor '2.00' as in the case of Poranki lands. Therefore, the principle laid down in the above judgments have no application to the present facts of the case and based on the principle of promissory estoppel, the petitioners cannot claim same benefit, which is not notified as required under 2nd component of Table given in First Schedule of Act 30 of 2013. Therefore, we find no force in the contention of the learned counsel for the petitioners and the same is rejected.
In the later judgment in "A.P.Steel Re-Rolling Mill Limited v. State of Kerala" (referred supra) almost identical principle is laid down.
29
HACJ & MSMJ WPs_13720 and 21718_2017 In similar circumstances, the High Court of Punjab and Haryana at Chandigarh in "Hardev Kumar v. Union of Inida" (CWP No.24548 of 2015) took specific view that when the law requires notification in Gazette, issue of instructions specifying multiplication factor is not legal. The Court held that when the State failed to issue notification in terms of Section 26 (2) read with First Schedule to the 2013 Act before announcing award by the District Collector is illegal and cannot be sustained. Mere issue of instructions cannot be considered as compliance of statutory requirement.
Persuaded by the above principle, the benefit extended to the land owners of Poranki, if any, cannot be extended to the petitioners herein.
As discussed above, the proceedings issued in Memo No.16022/6/2016/R.II.1/2016 dated 23.11.2016 are not in compliance of 2nd component of table given in First Schedule read with Section 26 (2) of the Act 30 of 2013. The issue of said memo itself is an illegality, and in such case it is difficult to hold that the failure of the Government to extend the benefit of multiplication factor '2.00' to the petitioners herein is discriminatory or arbitrary as the very issue of said memo itself is an illegality. Hence, we hold that the petitioners are not entitled to claim benefit of Memo dated 23.11.2016 which was already withdrawn by another memo No.16022/6/R.II.1/2016 dated 16.03.2017. Accordingly, the point is held in favour of the respondents and against the petitioners. P O I N T No.2:
The major contention of the petitioners before this Court is that when Sections 26 and 28 of the Act 30 of 2013 prescribes procedure for fixation of compensation by Collector, the Government has to exercise its discretionary power in accordance with law based on 30 HACJ & MSMJ WPs_13720 and 21718_2017 sound reasoning. It is contended that in the present facts of the case, respondent No6 did not adopt any scale for fixing multiplication factor 1.25 as per Rule 28 (1) of Annexure to G.O.Ms.No.389 dated 20.11.2014.
Section 26 of the Act 30 of 2013 deals with "determination of market value of land by Collector." The Collector shall adopt criteria prescribed in clauses (a) to (c) of sub-section (1) of Section 26 of the Act 30 of 2013 and determine the market value specified in Indian Stamp Act, 1899 for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or consented amount of compensation as agreed upon under sub-section (2) of Section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher, provided that the date for determination of market value shall be the date on which the notification has been issued under Section 11. Sub-section (2) of Section 26 of the Act 30 of 2013 says that the market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule. Therefore, fixation of compensation for the land by the Collector under Section 26 of the Act 30 of 2013 is specified in sub-section (1) of Section 26 and application of multiplication factor to decide the compensation payable is prescribed in 2nd component of table given in first schedule of Act 30 of 2013. Therefore, fixation of multiplication factor is not based on the distance between the project and urban area and it is left to the State to pass appropriate rules exercising power under Section 109 of Act 30 of 2013.
The Rules framed by the State by exercising power under Section 109 of the Act 30 of 2013 is a subordinate or delegated 31 HACJ & MSMJ WPs_13720 and 21718_2017 legislation and such legislation can be declared as invalid in few circumstances viz., contrary to Principal Act, if rules are in violation of Statute or infringes fundamental rights or arbitrary or the rules nullifies the benefit granted by the Act. State has to keep in mind that the notification or rules, which are examples of delegated legislation cannot override the statutory mandate. The subordinate legislation has to supplement and not to supplant the statute. In the matter of "Vasu Dev Singh and others v. Union of India and others4" the Apex Court held that if by a notification, the Act itself stands effaced; then such notification needs to be struck down. It is further held that a statute can be amended, partially repealed or wholly repealed by the legislature. The delegated legislation must be exercised, it is trite, within the parameters of essential legislative policy. The benefit granted by the statute cannot be nullified by the rules framed thereunder. This aspect is clear from the judgments of Apex Court in "State of Karnataka and others v. H.Ganesh Kamath and others5" and "Kerala Samsthana Chethu Thozhilali Union v. State of Kerala6"
The Supreme Court in "Namit Sharma vs. Union of India7"
has also held as under:-
20. Dealing with the matter of closure of slaughterhouses in "Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat [(2008) 5 SCC 33]" , the Court while noticing its earlier judgment "Govt. of A.P. v. P. Laxmi Devi [(2008) 4 SCC 720]", introduced a rule for exercise of such jurisdiction by the courts stating that the court should exercise judicial restraint while judging the constitutional validity of the statute or even that of a delegated legislation and it is only when there is clear violation of a constitutional provision beyond reasonable doubt that the court should declare a provision to be unconstitutional.
(emphasis supplied) 4 (2006) 12 SCC 753 5 (1983) 2 SCC 402 6 (2006) 4 SCC 327 7 (2013) 1 SCC 745 32 HACJ & MSMJ WPs_13720 and 21718_2017 It is equally well settled principle of law that laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and application of a particular law would be done ―not with an evil eye and unequal hand.
In view of the law declared by the Apex Court in various judgments referred above, if the subordinate legislation nullified the benefit that conferred on any person by the particular statute, such rules are liable to be set aside. Keeping in view the tests laid down, the validity of Rule 28 (1) of Annexure to G.O.Ms.No.389 dated 20.11.2014 is to be tested to decide its legality. Section 109 (u) of Act 30 of 2013 conferred power on the State to frame rules relating to any other matter, which are required or may be specified under the Act. Section 26 (2) and Section 30 (2) of the Act 30 of 2013 permits the State to notify multiplication factor applicable to rural, urban and tribal areas, but the multiplication factor shall not be less than '1.00' and shall not exceed '2.00' in the rural areas depending upon distance between project and urban area. So, margin of '1.00' is given to the State to notify the multiplication factor for the lands acquired in the rural areas. Therefore, when the statute conferred power on the State, framing of rules by exercising power under Section 109 of the Act notifying multiplication factor 1.25 to the lands in rural areas which are away to urban area, can be said to be arbitrary; even in the absence of any other guidelines other than proximity between project and urban area for fixation of such multiplication factor. State can exercise its discretion to frame such rules for application of multiplication factor considering proximity of project to urban area as 33 HACJ & MSMJ WPs_13720 and 21718_2017 required under Section 26 (2) and Section 30 (2) and 2nd component in the table given in First Schedule of the Act 30 of 2013.
Section 26 of the Act of 2013 provides the criteria which need to be adopted by the Collector for assessing and determining the market value of the land on the date of notification under Section 11 of the Act. Section 26(2) provides for multiplication of that market value by a factor to be notified by the appropriate Government. Section 26(2) read with the First Schedule to the Act of 2013 mandates that the market value of the land located in rural areas needs to be multiplied by a Factor ranging between 1 (one) to 2 (two) based on the distance of the project from urban area. Thus, the First Schedule which is titled as "Compensation for Land Owners" contains component of compensation package and the package placed at Sr. No.2 in that schedule prescribe guiding principle which needs to be used for determination of multiplier factor in rural areas. This guiding principle, as seen from compensation package at Sr. No. 2 for the land located in rural areas is distance of the project from urban area. This makes it explicitly clear that in rural areas which are farthest from urban area, the multiplier factor is required to be two and when rural area covered under the project is closer to the urban area, such multiplier factor scales down to less than two and even up to one, when the land sought to be acquired for the project is closest to the urban area. One cannot dispute the proposition that a Schedule in an Act is not mere question of drafting and is as much a part of statute and as much an enactment, as any other part.
The basic reason which seems to be considered for providing higher multiplier factor even up to two for lands situated in rural area sought to be acquired for the project is dependence of the people on 34 HACJ & MSMJ WPs_13720 and 21718_2017 such land for their survival and livelihood, coupled with low market price of such remotely located land, as compared to land situated in urban area. A fair balance appears to have been achieved by making a provision of multiplication of the market value by the factor to be notified by the appropriate Government considering the distance of the land under acquisition in rural area from urban area, so as to provide for infrastructural needs and sustainability of agriculture and rural livelihood. For this reason, entry No.2 in the First Schedule provides for higher multiplier factor in respect of lands sought to be acquired from rural area based on their distance from urban area. Therefore, as the distance of land sought to be acquired from rural area increases from that of urban area, the multiplier factor is required to be increased suitably. It is seen that there was no such analogous provision regarding multiplier in the old. Act i.e. Act of 1894. Similarly, it needs to be mentioned here that Section 30 of the Act of 2013 makes a provision for awarding solatium @ 100% of the total compensation which is required to be paid. The Act of 1894 was providing for solatium only @ 30% on the market value of the land.
The Act of 2013 and more particularly, Section 106 thereof, makes it clear that the Central Government cannot amend or alter any of the Schedules to the said Act including the First Schedule, so as to reduce the compensation payable or for diluting the provisions of the Act relating to compensation or rehabilitation and resettlement. Section 107 of the Act of 2013, empowers the State Legislature, to enact any law to enhance or add to the entitlement enumerated under the Act, which confers higher compensation than the one payable under the Act of 2013. Thus, the State Legislature can enact any law conferring higher compensation than the one provided under the Act 35 HACJ & MSMJ WPs_13720 and 21718_2017 of 2013. Section 108 of the Act of 2013 provides an option to affected families to avail better compensation and rehabilitation and resettlement if State law or policy so provides. The thrust seems to be that the compensation cannot be lower than the one prescribed under the Act of 2013.
It is well settled that a statute is to be read as a whole and every clause of a statute has to be constructed with reference to the context and other clauses of the Act. Ordinarily, the intention of the legislature is what it states to be its intention by the words employed in the statute. The Act of 2013 as seen from the provisions thereof, gives very high weightage to the provisions relating to payment of compensation. Even it makes provision for penalty for contravention of the provisions of the said Act relation to payment of compensation or rehabilitation or resettlement. Section 85 of the said Act prescribes penalty by providing that if any person contravenes any of the provisions of the Act relating to payment of compensation etc, he shall be liable to punishment for six months which may extend to 3 years or with fine or with both. If the entire scheme of the Act of 2013 is considered then it becomes crystal clear that the said Act is a social welfare legislation enacted to benefit the land owners in the event of acquisition of their land by the State. It is not a statute dealing with fiscal matter or economic policy of the State such as hiking tax liability. As such the provisions of the Act of 2013 deserve liberal construction in favour of the subject. The Act of 2013 makes provision for minimum quantum of compensation payable to land holders and simultaneously it provides for various safeguards so that provisions for compensation payable under the Act should not be diluted by adopting any tactics. It is well settled that while construing 36 HACJ & MSMJ WPs_13720 and 21718_2017 a welfare statute, the Court is required to give such statute widest operation which its language permits. In the matter of "Executive Southern Electricity Supply Company of Orissa Ltd and another vs. Shri Seetaram Rice Mills8", it is held that the legislative history and objects are important aids in constructing provisions of a statute. Similarly, the statement of objects and reasons are also considered to be an internal aid while interpreting statute as laid down by the Supreme court in "Devachand Builders and Contractors vs. Union of India and Others9".
Depending upon the distance between the land from rural area proposed to be acquired and the urban area, the multiplier factor was required to be prescribed from range given i.e. from 1 to 2 and by limiting the exercise of calculating distance and that too radial only up to 25 Kilometers from urban area, respondent/State has defeated the object and purpose of the Act of 2013. At this juncture, it is relevant to note that as per the provisions of Section 106 of the Act of 2013, even the Central Government cannot amend or alter any Schedule to the Act of 2013 in order to reduce the compensation payable or lo dilute the provisions relating to compensation. By fixing the multiplier factor at 1.10 for all lands in rural area situated at a radial distance of more than 25 Kilometers from urban area, the State has virtually caused an amendment to the First Schedule of the Act of 2013 in order to reduce the amount of compensation payable to land holders. The First schedule to the Act of 2013 is part and parcel of that statute and the State Government being an appropriate Government could not have prescribed maximum multiplier factor of 1.10 only for all lands in rural area, which are more than 25 8 (2012) 2 SCC 108 9 (2012) 1 SCC 101 37 HACJ & MSMJ WPs_13720 and 21718_2017 Kilometers away from the urban area. In the similar way, act of respondent/State in fixing the multiplier to 1 by earlier notification dated 19.3.2014 (Exhibit D) reflects complete refusal to exercise discretion conferred by the First Schedule by ignoring to consider the relevant factor of distance of project from urban area. (Vide:
"Panjabrao v. The State of Maharashtra10"). The said principle was followed by learned Single Judge of Chhattisgarh High Court in "Anita Agrawal v. State of Chhattisgarh" (referred supra) and the same was reiterated in "Lakhan Lal Kashyap v. State of Chhattisgarh (WPC NO.309 of 2019)"
Based on the principle laid down by the Division Bench of Bombay High Court, learned Single Judge of Chhattisgarh High Court concluded that he is not satisfied with the so-called explanation offered as to why a multiplier of 1.00 as a thumb rule should be used for the entire State of Chhattisgarh. The very object and purpose behind the variable component between 1.00 and 2.00 has been lost, if not robbed and finally drawing analogy from the view taken by the Division Bench of Bombay High Court, The Court is left with no option but to strike down the notification dated 04.12.2014 contained in Annexure P 1. A direction is issued that keeping in mind the legal position which emerges, the State Government shall issue a fresh notification indicating the multiplier factors, in terms of the guidelines laid down in the statue and the judgment.
The reason for issuing such direction by the learned Single Judge of Chhattisgarh High Court on variable component i.e. multiplication factor depends upon the various factors like distance between the land proposed to be acquired or the project and the 10 (2015) 6 MhLT 69 38 HACJ & MSMJ WPs_13720 and 21718_2017 distance between the project and the urban town etc. we are in total agreement with the principle laid down in the above judgment. Therefore, parameters laid down in the said judgment of Bombay and Chhattisgarh High Courts about the proximity of area proposed to be acquired to urban agglomeration is significant. As per 2nd component of table given in First Schedule of Act 30 of 2013, proximity between project and urban area alone is the consideration, but the 2nd component of table given in First Schedule of Act 30 of 2013 conferred discretionary power on the State to notify the multiplication factor depending upon the distance between the project and urban area, but the view taken by the Bombay High Court is that if the project is farther, the multiplication factor is higher and it is proximate to the urban area, the multiplication factor is less. The reasoning of Division Bench of Bombay High Court can be applied to the rules of our State, such contextual interpretation of provisions keeping in view of Section 107 of the Act, which is beneficial to owners of land. Instead of drawing distinction between proximate areas and distant areas, State adopted one multiplication factor i.e. 1.25 under Rule 28 (1) of the Rules framed under the Act by exercising power under Section 109 of the Act 30 of 2013. Notifying single multiplication factor for all the lands in rural areas proposed to be acquired may sometimes cause substantial loss to the owners of the land acquired, but in those circumstances various States have adopted different multiplication factors depending upon the distance, more particularly within the radial of 10 Kms from the urban areas multiplication factor '1.25' is notified and if it exceeds multiplication factor is '2.00.' Various States notified multiplication factor, the details are hereunder:
39
HACJ & MSMJ WPs_13720 and 21718_2017 S.NO Name of the State Multiplication Factor
1. ANDHRA PRADESH Rural - 1.25 Scheduled (Tribal areas) - 1.50 Rural - 2.00 (Beyond 10 Km
2. ASSAM from urban areas) Rural - 1.50 (Upto 10 Km of radial distance from urban areas)
3. CHHATTISGARH Rural - 1.00
4. HARYANA Rural - 1.00 Urban - 1.00 TMC/CMC/City Corporation
5. KARNATAKA Areas - 1.00 Upto 5 Km of radial distance from the above municipal areas -
1.50 Rural (Other than above two category) - 2.00
6. MADHYA Rural - 1.00 PRADESH
7. MAHARASHTRA Rural - 1.01 Urban - 1.01 Rural:
1) 5 Kms from urban agglomeration or municipal limits
8. RAJASTHAN (New - 1.25 to 2.5 State Land Bill introduced in 2) Beyond the above limits and classified in revenue 2014) land as waste land, barani or banjar - 2.25 to 4.5
3) Beyond the above limits and classified in revenue land as irrigated or double cropped land
- 2.5 to 4.5 Urban - 1.0 Scheduled (Tribal) areas - 2.00
9. TELANGANA Rural - 1.5 Rural - 2.00 Rural areas upto 10 kms from urban areas - 1.50
10. TRIPURA Urban - 1.00 Rural - NA
11. UTTAR Urban - 1.0 PRADESH Bihar, Himachalpradesh, Jharkhand, Kerala, Manipur, Odisha, Punjab, Sikkim States not notified the multiplication factor.
As per the 2nd component of table given in First Schedule of Act 30 of 2013 depending upon the distance between project and urban area, appropriate Government has to notify the multiplication factor. But without following the guiding factor i.e. distance between the project and urban area, State Government issued uniform 40 HACJ & MSMJ WPs_13720 and 21718_2017 multiplication factor for all the lands in rural areas fixing multiplication factor as 1.25, such fixation of multiplication factor is arbitrary and it would cause loss to the owners of the lands at farther area to the urban area. When the Court finds that the rule is contrary to the purport of 2nd component of table given in First Schedule of Act 30 of 2013, framing such rule notifying multiplication factor at 1.25 is arbitrary.
In "Maganlal Chhagganlal (P) Ltd. Vs. Municipal Corporation of Greater Bombay & Others11" the Apex Court is of the view that the provisions of the Act cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination must be taken into account. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective. This Court may struck down such rule. In "Panjabrao v. The State of Maharashtra" (referred supra), the Court concluded that multiplication factor at 1.10 for all lands in rural areas, which are more than 25 kms away from the urban area notified by the Government in terms of 2nd component of table given in First Schedule of Act 30 of 2013 was struck down. Even if the principle laid down in the above judgment is applied to the present facts of the case, Rule 28 (1) of Annexure to G.O.Ms.No.389 dated 20.11.2014 is to be struck down as arbitrary, since, the Government is under the obligation to notify such multiplication factor depending 11 (1975) 1 SCR 1 41 HACJ & MSMJ WPs_13720 and 21718_2017 upon the distance from the lands in rural areas proposed to be acquired to the urban agglomeration. Multiplication factor required to be prescribed from the range given i.e. 01.00 to 02.00, but such notification limiting multiplication factor 1.25 to all the rural areas in the entire State is arbitrary for the simple reason that some of the land owners whose lands are acquired may put to substantial loss if uniform multiplication factor is applied irrespective of the distance between project in rural area and urban area, since multiplication factor can never be one and the same for all the areas irrespective of distance between the proposed lands acquired in rural areas and urban areas and it is variable factor depending upon the distance. Hence, we find that the fixation of multiplication factor in all rural areas vide Rule 28 (1) of Annexure to G.O.Ms.No.389, Revenue (Land Acquisition) Department dated 20.11.2014 irrespective of distance, is arbitrary and the same is liable to be struck down.
Persuaded by the Division Bench judgment of High Court of Bombay in "Panjabrao v. The State of Maharashtra" (referred supra) followed by Chhattisgarh High Court in "Anita Agrawal v. State of Chhattisgarh" (referred supra), we are of the firm view that fixation of uniform multiplication factor at 1.25 for the lands in rural areas irrespective of distance between the urban area and proposed project is illegal and arbitrary. Therefore, Rule 28 (1) of Annexure to G.O.Ms.No.389, Revenue (Land Acquisition) Department dated 20.11.2014 is struck down, while directing the State Government to modify the multiplication factor depending upon the distance as in other States refereed supra based on distance between project in rural areas and urban areas.
42
HACJ & MSMJ WPs_13720 and 21718_2017 In Writ Petition No.21718 of 2017, the petitioners, who are the owners of the land in Gundugolanu - Kovvuru section, claimed consequential relief to direct the respondent Nos.5 and 6 to pay compensation in terms of letter NHAI/RO-
VJA/RFCLARR/LA/201617/1472 dt.26.10.2016 issued by the respondent No.2 and the consequential memo
No.16022/6/2016/R.II.1/2016 dated 23.11.2016 and in fact the said memo was withdrawn. but the request of the learned counsel for the petitioners cannot be acceded to for the simple reason that the very issue of memo No.16022/6/2016/R.II.1/2016 dated 23.11.2016 fixing multiplication factor '2' for the lands acquired for widening of road from Vijayawada to Machilipatnam is contrary to the requirement under 2nd component of table given in First Schedule of Act 30 of 2013, when issue of such memo itself is not in accordance with law, this Court cannot issue direction to pay compensation in terms of the Memo No.16022/6/2016/R.II.1/2016 dated 23.11.2016, applying the principle laid down in "Union of India and Others vs. M.K. Sarkar" (referred supra).
In the result, the Writ Petition No.13720 of 2017 is partly allowed. The Rule 28 (1) of Andhra Pradesh Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules 2014, Annexure to G.O.Ms.No.389, Revenue (Land Acquisition) Department dated 20.11.2014 is hereby declared as arbitrary, directing the respondents to issue modified variable multiplication factor as prescribed in the 2nd component of the table given in First Schedule of Act 30 of 2013 depending upon the distance with prospective effect, while rejecting the request of the petitioners to apply multiplication factor 2.00 as per Memo 43 HACJ & MSMJ WPs_13720 and 21718_2017 No.16022/6/2016/R.II.1/2016 dated 23.11.2016 as the same was withdrawn by issuing another Memo No.16022/6/2016/R.II.1/2016 dated 16.03.2017. It is needless to mention that multiplication factor as amended in view of the directions will have prospective effect and the Awards already passed shall not be reopened on account of this order. Writ Petition No.21718 of 2017 is dismissed. No costs.
Consequently, miscellaneous applications pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 06.09.2019 Ksp