Kesavan.G v. The Union of India

ORDER New Delhi, 28-8-2015 S.O. 2368(E).—Whereas, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) (hereinafter referred to as "the RFCTLARR Act") came into effect from 1-1-2014; And whereas, sub-section (3) of Section 105 of the RFCTLARR Act provided for issuing of notification to make the provisions of the Act relating to the determination of the compensation, rehabilitation and resettlement applicable to cases of land acquisition under the enactments specified in the Fourth Schedule to the RFCTLARR Act; And whereas, the notification envisaged under sub-section (3) of Section 105 of the RFCTLARR Act was not issued, and the RFCTLARR (Amendment) Ordinance, 2014 (9 of 2014) was promulgated on 31-12-2014, thereby, inter alia, amending Section 105 of the RFCTLARR Act to extend the provisions of the Act relating to the determination of the compensation and rehabilitation and resettlement to cases of land acquisition under the enactments specified in the Fourth Schedule to the RFCTLARR Act; And whereas, the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015) was promulgated on 3-4-2015 to give continuity to the provisions of the RFCTLARR (Amendment) Ordinance, 2014; And whereas, the RFCTLARR (Amendment) Second Ordinance, 2015 (5 of 2015) was promulgated on 30-5-2015 to give continuity to the provisions of the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015); And whereas, the replacement Bill relating to the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015) was referred to the Joint Committee of the Houses for examination and report and the same is pending with the Joint Committee; And whereas, as per the provisions of Article 123 of the Constitution, the RFCTLARR (Amendment) Second Ordinance, 2015 (5 of 2015) shall lapse on the 31st day of August, 2015 and thereby placing the landowners at the disadvantageous position, resulting in denial of benefits of enhanced compensation and rehabilitation and resettlement to the cases of land acquisition under the 13 Acts specified in the Fourth Schedule to the RFCTLARR Act as extended to the landowners under the said Ordinance; And whereas, the Central Government considers it necessary to extend the benefits available to the landowners under the RFCTLARRAct to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule; and accordingly the Central Government keeping in view the aforesaid difficulties has decided to extend the beneficial advantage to the landowners and uniformly apply the beneficial provisions of the RFCTLARR Act, relating to the determination

of

compensation

and rehabilitation and resettlement as were made applicable to cases of land acquisition under the said enactments in the interest of the landowners; Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 113 of the Right to Fair Compensation and Transparency

in

Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:

¶1(1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.

(2) It shall come into force with effect from the 1st day of September, 2015.

¶2The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act. [F. No. 13011/01/2014-LRD] K.P. Krishnan, Addl. Secy."

¶48It is thus clear that the Ordinance as well as the notification have applied the principle contained in Nagpur Improvement Trust [Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500] , as the Central Government has considered it necessary to extend the benefits available to landowners generally under the 2013 Act to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule, the National Highways Act being one of the aforesaid enactments. This being the case, it is clear that the Government has itself accepted that the principle of Nagpur Improvement Trust [Nagpur Improvement Trust v.Vithal Rao, (1973) 1 SCC 500] would apply to acquisitions which take place under the National Highways Act, and that solatium and interest would be payable under the 2013 Act to persons whose lands are acquired for the purpose of National Highways as they are similarly placed to those landowners whose lands have been acquired for other public purposes under the 2013 Act. This being the case, it is clear that even the Government is of the view that it is not possible to discriminate between landowners covered by the 2013 Act and landowners covered by the National Highways Act, when it comes to compensation to be paid for lands acquired under either of the enactments. The judgments delivered under the 1952 Act as well as the Defence of India Act, 1971, may, therefore, require a re-look in the light of this development. [ The Defence of India Act, 1971, was a temporary statute which remained in force only during the period of operation of a proclamation of emergency and for a period of six months thereafter — vide Section 1(3) of the Act. As this Act has since expired, it is not included in the Fourth Schedule of the 2013 Act.] In any case, as has been pointed out hereinabove, Chajju Ram [Union of India v. Chajju Ram, (2003) 5 SCC 568] , has been referred to a larger Bench. In this view of the matter, we are of the view that the view of the Punjab and Haryana High Court [Union of India v. Tarsem Singh, 2018 SCC OnLine P&H 6036], [Jang Bahadur v. Union of India, 2018 SCC OnLine P&H 6034], [Union of India v. Abhinav Cotspin Ltd., 2016 SCC OnLine P&H 19319] is correct, whereas the view of the Rajasthan High Court [Banshilal Samariya v. Union of India, 2005 SCC OnLine Raj 572 : 2005-06 Supp RLW 559] is not correct."

¶52Whether the 2015 order issued under Section 113(1) of the Act would be construed as a notification issued under Section 105(3) of the 2013 Act has been answered by the Hon'ble Supreme Court in Mahanadi Coal Fields Ltd., and Ors. v. Mathias Oram and Ors., reported in AIR 2022 SC 5723. The relevant portion of the order reads thus : "23. Section 105 of the R&R Act 2013 reads as follows:

¶105Provisions of this Act not to apply in certain cases or to apply with certain modifications.–(1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.

(2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.

(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.

(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament." Entry 11 to the Fourth Schedule of the said Act, read as follows: "11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957)"

¶24By virtue of Section 105, read with the Fourth Schedule, therefore, the R&R Act 2013, was not applicable to acquisitions made under the CBA Act. However, by Section 105(2), the Central Government had issued a notification: "Direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be."

¶25The Ministry of Coal, Central Government issued a clarification dated 04.08.2017 on the applicability of First, Second and Third Schedules of the R&R Act, 2013 in cases of acquisition of lands under the CBA Act. The clarification stated as under: "1….That consequent upon the announcement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (hereinafter 'RFCTLARR Act') and Order SO No. 2368(E). notified on

28.08.2015 by Ministry of Rural Development, Coal India Limited and its subsidiaries have sought clarifications regarding payment of compensation for land acquired prior to

01.09.2015 under Coal Bearing Areas (Acquisition and Development Act. 1957(hereinafter the 'CBA Act')

¶2As multiple stages are involved in the land acquisition process, including that of determination of compensation, this Ministry sought advice from Ministry of Law and Justice. Ministry of Law and Justice has given their advice that if the compensation has not been determined before 01.09.2015 under Section 13(5) of the CBA Act, then the provisions of First Schedule, Second Schedule and Third Schedule of the RFCTLARR Act will be applicable. In remaining cases where the compensation has already been determined under Section 13(5) of the CBA Act before

01.09.2015, then such cases will not be reopened.

¶4In view of the above clarifications, previous order letter no. 430200/26/88-LSW dated

12.05.1989 issued by the. Ministry of Energy, Department of Coal shall stand modified. The above clarifications may be followed in determination of compensation for land acquired under CBA Act. This is issued with the approval of the competent authority. s/d R.S. Saroj Under Secretary to the Govt. of India".

¶26The above relevant facts reveal that Section 105 excluded application of the R&R Act, 2013 to acquisitions made and eminent domain exercised, under the enactments specified in its Fourth Schedule, such as the CBA Act. It was under this enactment, that the acquisitions which are the subject matter of the present proceedings, were notified in favour of MCL.

¶27When the R&R Act, 2013 was brought into force with effect from 01.01.2014, the acquisitions in favour of MCL continued to be under the CBA Act. By Section 105(3) of the R& R Act, 2013, the Central Government was obliged to issue the notification within one year from the date of commencement of that Act to ensure that its provisions relating to the determination of compensation, were in accordance with the provisions in the First Schedule and rehabilitation and resettlement in accordance with the Second and Third Schedules of that Act. It was pursuant to this mandate, that on 28.08.2015 the Central Government issued a notification in terms of Section 105(3). However, the Central Government chose to exercise its power to remove difficulties, under Section 113. This seems to be because the notification was issued on 28.08.2015– beyond the period prescribed in Section 105(3). Nevertheless, the spirit of the statutory injunction to make the beneficial provisions of the R&R Act, 2013 applicable to compensation determination and resettlement or rehabilitation measures, was complied with in effect and substance." (Emphasis supplied)

¶53Ultimately, the Hon'ble Supreme Court has made it clear in unequivocal terms in paragraph 27 of the order as extracted herein above that, the order issued by the Central Government on 28.08.2015 is in terms of Section 105(3) of the Act. It has been made further clear by Hon'ble Supreme Court that, the Central Government chooses to exercise its power to remove difficulties under Section 113. This seems to be because the notification was issued on 28.08.2015 beyond the period prescribed in Section 105(3). Nevertheless, the spirit of the statutory injunction to make the beneficial provisions of the R&R Act, 2013 applicable to compensation, determination and resettlement or rehabilitation measures, was complied with in effect and substance.

¶54With these words of the Hon'ble Supreme Court, a complete answer has been given to the question raised on the petitioners side that, whether the 2015 order issued on 28.08.2015 would be treated as a notification within the meaning of Section 105(3) of the 2013 Act or not.

¶55The Central Government has been given the power both under Section 105(3) as well as under Section 113(1) of the Act. Within Section 105(3), such a notification should be issued within a one year period, however, if a notification could not be issued within a one year period, it cannot be stated that, it can never be issued in any other form, thereby all the 13 enactments under the Fourth Schedule would get relieved from the clutches of Act 2013 provisions. If that being so, it would be beneficial to land acquisition authorities, i.e., the requisition body to acquire the land under the 13 enactments of Fourth Schedule but not in advantage or beneficial to the land owners.

¶56The very purpose of 2013 Act is to give more benefits to land owners, thereby determination of compensation, rehabilitation and resettlement everything has been specifically stated under the provisions of the 2013 Act by having the Schedules like First Schedule, Second Schedule and Third Schedule. If this is the main object of the 2013 Act, as per the objects and reasons which we have traced herein above, such an object cannot be defeated by giving an interpretation to state that, once a notification has not been issued by the Central Government under Section 105(3) of the Act that the entire thing get lapsed, thereby the 13 enactments of Fourth Schedule would completely get separated from the purview of the applicability of the provisions of the 2013 Act.

¶57If that arguments advanced by the learned counsel appearing for the petitioners is accepted, that would be detrimental even to the petitioners as they would not get proper compensation, rehabilitation and resettlement if any as provided under the provisions of the 2013 Act.

¶58That is the reason why the Hon'ble Supreme Court in Mahanadi's case (cited supra) has made it very clear in unequivocal terms by making a declaration that the spirit of the statutory injunction to make the beneficial provisions of the R&R Act 2013 applicable to compensation, determination and resettlement or rehabilitation measures, was complied with in effect and substance.

¶59If it is complied with in effect and substance, as has been declared by the Hon'ble Supreme Court, the same can be the law which cannot be stretched upon or to be interpreted to the whims and fancy or the desire of the litigant as that would be detrimental to the very purpose of the 2013 Act as well as the provisions namely Section 105(3) as well as Section 113(1) which are enabling provisions to make it clear that, the determination of compensation, rehabilitation and resettlement provisions of the 2013 Act mandatorily to be made applicable to the land acquisition proceedings made under the 13 enactments of the Fourth Schedule.

¶60Therefore at no stretch of imagination, the petitioners can put forth the case to state that because of non-issuance of notification under Section 105(3) of the Act, the provisions relates to land acquisition of the 1956 Highways Act becomes void and unconstitutional. Absolutely there has been no scope for making such a declaration in view of the discussion herein we have made.

¶61Since the provisions of 1956 Highways Act relates to land acquisition are valid and the provisions of 2013 Act relates to determination of compensation, rehabilitation and resettlement of the land acquisition proceedings initiated and concluded by the provisions of the 1956 Highways Act since has been saved by making the provisions of 2013 Act, on all these three aspects applicable to the land acquisition proceedings under 1956 Act, the petitioners would be the beneficiaries and therefore they cannot seek for such a declaration as sought for including the quashment sought for by the petitioners against the notification issued under the provisions of the 1956 Act.

¶62Therefore the challenge that has been made against the provisions of the 1956 National Highways Act and consequential notification issued under various provisions of the said Act for land acquisition proceedings are held to be valid and therefore all these writ petitions have to fail accordingly, they are liable to be rejected.

¶63In the result, all these writ petitions are dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petitions are closed. (R.S.K., J.) (G.A.M., J.)

30.01.2025 Index : Yes Speaking Order : Yes tsvn To

¶1The Secretary Union of India Ministry of Shipping, Road Transport and Highways, New Delhi.

¶2The Competent Authority and District Revenue Officer, (Road Transport Highways) Thirumangalam-Rajapalayam Four Lane Project, Madurai Collectorate Office, Madurai.

¶3The Project Director Project Implementation Unit, National Highways Authority of India, Madurai.

¶4The Chairman National Highway Authority of India G5 & 6, Sector-10, Dwarka, New Delhi - 110 075.

R.SURESH KUMAR, J. AND

G.ARUL MURUGAN, J. tsvn Common Order in W.P.(MD).Nos.6727, 16710 and 16711 of 2021

30.01.2025

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 10.07.2024 Pronounced on : 30.01.2025 CORAM: THE HON'BLE MR. JUSTICE R.SURESH KUMAR AND THE HON'BLE MR.JUSTICE G.ARUL MURUGAN and W.M.P.(MD).Nos.13609, 13610, 13611, 13614 and 5185 of 2021 and 21310 of 2022 and 1235, 1239 and 11333 of 2024 W.P.(MD).No.6727 of 2021 1. G.Kesavan 2. S.G.Seenivasagan 3. Vijayalakshmi 4. Amutha ... Petitioners Vs. 1. The Union of India Rep. by its Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi. 2. The Competent Authority and District Revenue Officer, (Road Transport Highways) Thirumangalam-Rajapalayam Four Lane Project, Madurai Collectorate Office, Madurai. 3. The Project Director Project Implementation Unit, National Highways Authority of India, Madurai. 4. National Highway Authority of India Rep. by its Chairman, G5 & 6, Sector-10, Dwarka, New Delhi - 110 075. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, seeking (i) to issue a writ of declaration, declaring the provisions of the NH Act, 1956 in so far as relating to Land Acquisition are concerned and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, dated 28.08.2015 issued by the first respondent u/s 113(1) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 are unconstitutional and void. (ii) to issue a writ of certiorari calling for the records relating to the issue of the impugned orders, viz., Notification issued u/s 3-A(1) of NH Act, 1956 issued in S.O.No.3280(E) dated 24.09.2020 by the first respondent and published in Government of India Gazette Extraordinary No.2932 Part-II- Sec.3(ii) dated 24.09.2020 and the Declarations u/s 3-D (1&2) of NH Act, 1956 issued by the first respondent in Notification dated 29.01.2021 issued in S.O.470(E) published in Government of India Gazette Extraordinary Part- II Sec.3(ii) No.433, dated 29.01.2021 and the Notice u/s. 3-G(3) of NH Act, 1956, dated 19.02.2021 issued by the second respondent and published in the Hindu News Paper dated 19.02.2021 and quash the same. (iii) consequently to issue a writ of mandamus directing the respondents to accord proper technical approval to the detailed estimate for the proposal of 4 lane widening of NH744 as per the technical standards as per Rule 3 of NH Rules, 1957 and thereafter to initiate the Land Acquisition process as per 2013 Central Act. W.P.(MD).No.16710 of 2021 S.Seetha ... Petitioner Vs. 1. The Union of India Rep. by its Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi. 2. The Competent Authority and District Revenue Officer, (Road Transport Highways) Thirumangalam-Rajapalayam Four Lane Project, Soolakkarai, Virudhunagar. 3. The Project Director Project Implementation Unit, National Highways Authority of India, Madurai. 4. National Highway Authority of India Rep. by its Chairman, G 5 & 6, Sector-10, Dwarka, New Delhi - 110 075. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, seeking (i) to issue a writ of declaration, declaring the provisions of the NH Act, 1956 in so far as relating to Land Acquisition are concerned and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, dated 28.08.2015 issued by the first respondent u/s 113(1) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 are unconstitutional and void. (ii) to issue a writ of certiorari calling for the records relating to the issue of the impugned orders, viz., Notification issued u/s 3-A(1) of NH Act, 1956 issued in S.O.No.3279(E) dated 24.09.2020 published in Government of India Gazette Extraordinary No.2931 Part-II-Sec.3(ii) dated 24.09.2020 by the first respondent; and consequent 3D notification issued i