SUPREME COURT OF INDIA | Indu Malhotra & Indira Banerjee, JJ. C.A. No. 6270 of 2019 (Arising out of SLP (Civil) No. 32055 of 2018) Nareshbhai Bhagubhai v. Union of India with C.A. No. 6271 of 2019 (Arising out of SLP (Civil) No. 32056 of 2018) Ravibhai Vallabhbhai Sutariya v. Union of India with C.A. No. 6272 of 2019 (Arising out of SLP (Civil) No. 32057 of 2018) Ishwerbhai Bhikabhai Patel v. Union of India with C.A. No. 6273 of 2019 (Arising out of SLP (Civil) No. 32058 of 2018) Vallabhbhai Chanabhai Ahir v. Union of India, 13-08-2019
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – In the absence of an order passed under Section 20D(2), the subsequent steps taken in the acquisition would consequentially get invalidated.
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – In the absence of an order passed under Section 20D(2), the subsequent steps taken in the acquisition would consequentially get invalidated.
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – The Act being an expropriatory legislation, its provisions have to be strictly construed.
In any event, the order under Section 20D(2) cannot be passed prior to the personal hearing. The mandate of the law is that the order must be passed “after” the grant of personal hearing, and after any further enquiry is made by the Competent Authority. The whole process of granting a personal hearing would be reduced to an empty formality and a farcical exercise, if the order on the objections precedes the grant of personal hearing. This would be clearly contrary to the provisions of Section 20D(2) of the Act. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. The provisions of an expropriatory legislation, which compulsorily deprives a person of his right to property without his consent, must be strictly construed. The Railways Act, 1989 being an expropriatory legislation, its provisions have to be strictly construed. [Para 11.5]
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – File Notings and lack of Communication – The file noting contained in an internal office file, or in the report submitted by the Competent Authority to the Central Government, would not constitute a valid order in the eyes of law.
It is settled law that a valid order must be a reasoned order, which is duly communicated to the parties. The file noting contained in an internal office file, or in the report submitted by the Competent Authority to the Central Government, would not constitute a valid order in the eyes of law. In the present case, there was no order whatsoever passed rejecting the objections, after the personal hearing was concluded on 30.07.2011. It is important to note that the Competent Authority did not communicate the contents of the file noting to the Appellants at any stage of the proceedings. The said file noting came to light when the matter was 33 pending before the High Court, and the original files were summoned. The High Court, upon a perusal of the files, came across the file noting recording rejection of the objections only on the ground that the matter pertained to an infrastructure project for public utility. [Para 11.3]
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – The limited right given to a land owner / interested person to file objections, and be granted a personal hearing under Section 20D cannot be reduced to an empty formality, or a mere eyewash by the Competent Authority.
The Competent Authority was duty bound to consider the objections raised by the Appellants, and pass a reasoned order, which should reflect application of mind to the objections raised by the land owners. In the present case, there has been a complete dereliction of duty by the Competent Authority in passing a reasoned order on the objections raised by the Appellants. It is the undisputed position that no order as contemplated in the eyes of law was passed by the Competent Authority in deciding the objections raised by the Appellants. A statutory authority discharging a quasi-judicial function is required to pass a reasoned order after due application of mind. [Para 11]
The Railways Act, 1989 – Sections 20D – The Land Acquisition Act, 1894 – Section 5A – Power to Acquire Land – Hearing of Objections – The right to file objections under Section 20D of the Railways Act, 1989 is pari materia to Section 5A of the Land Acquisition Act, 1894 even though the scope of objections may be more limited.
Section 20D is a mandatory provision which confers a substantive and valuable right on the land owners, to object to the proposed acquisition, before they are forcibly divested of their right, title and interest in the land by an expropriatory legislation. The right to file objections under Section 20D of the Railways Act, 1989 is pari materia to Section 5A of the Land Acquisition Act, 1894 even though the scope of objections may be more limited. The judgments rendered by this Court on the nature of the right to object under the Land Acquisition Act, 1894 are equally applicable to the Railways Act. Subsection (2) of Section 20D mandates the Competent Authority to give the objectors an opportunity of hearing, either in person or through a legal practitioner. The Competent Authority after hearing all objections, and after making such further enquiry, if any, is mandated to pass an order either allowing or disallowing the objections. There are a catena of judgments passed on Section 5A of the Land Acquisition Act, 1894, which are relevant for the interpretation of Section 20D(2) of the said Act. This Court has held that the rules of natural justice have been ingrained in the scheme of Section 5A of the 1894 Act with a view to ensure that before any person is forcibly deprived of his land by way of compulsory acquisition, he must be provided with an opportunity to oppose the decision of the Government. This Court has held that the hearing given to a person must be an effective one, and not a mere formality. Formation of opinion with regard to the public purpose, as also suitability thereof, must be preceded by application of mind having due regard to the relevant factors. Section 5A of the Land Acquisition Act, 1894 confers a valuable right on the landowners. Having regard to the provisions contained in Article 300A of the Constitution, the right to raise and file objections has been held to be akin to a fundamental right. [Para 11]
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – The file noting in the office files of the Competent Authority cannot be considered to be an order on the objections. [Para 10.2]
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – In the absence of an order being passed as contemplated by Section 20D of the said Act, no further steps could have been taken by the Competent Authority in the acquisition in question. [Para 10.1]
The Railways Act, 1989 – Sections 20D – Power to Acquire Land – Hearing of Objections – If an order is passed prior to the personal hearing, and enquiry by the Competent Authority, it would be contrary to the statute, invalid, and vitiated by a predetermined disposition.
The land owner or interested person has been granted a limited right to file objections under Section 20D of the Railways Act, 1989. The scope of the objections is limited to the purpose for which the acquisition is made. It is not a general right to file objections as under Section 5A of the Land Acquisition Act, 1894. The statute has mandated a strict procedure to be followed under Section 20D with respect to the submission and hearing of objections. The statute mandates that the order is required to be passed by the Competent Authority “after hearing” the landowners. The order cannot precede the hearing of objections. If an order is passed prior to the personal hearing, and enquiry by the Competent Authority, it would be contrary to the statute, invalid, and vitiated by a predetermined disposition. [Para 9]
The Railways Act, 1989 – Sections 20A - – Notification issued under - Power to Acquire Land –Held, The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed.
Admittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, Gujarat. In these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action. In the present case, the relief is being moulded by granting compensation to the Appellants, to be assessed under Section 20G of the said Act as per the current market value of the land. The Competent Authority is directed to compute the amount of compensation on the basis of the current market value of the land, which may be determined with reference to Section 20G(2) of the Act. [Para 12]
The Railways Act, 1989 – Sections 20A - – Notification issued under - Power to Acquire Land –Held, The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed.
Admittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, Gujarat. In these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action. In the present case, the relief is being moulded by granting compensation to the Appellants, to be assessed under Section 20G of the said Act as per the current market value of the land. The Competent Authority is directed to compute the amount of compensation on the basis of the current market value of the land, which may be determined with reference to Section 20G(2) of the Act. [Para 12]
The Railways Act, 1989 – Sections 20A, 20D, 20E, 20G, 20I, 20J, 20N – Power to Acquire Land – Hearing of Objections – Declaration of Acquisition – Criterion for determination of market value of land – Power to take possession – Right to enter into land where land has vested in Central Government – Land Acquisition Act 1 of 1894 not to apply – Construction of the Western Dedicated Freight Corridor.
Chapter IV A of the Railways Act, 1989 is a self contained code. The Central Government is empowered under Section 20A to issue a preliminary Notification, notifying its intention to acquire land for a public purpose required for the execution of a special railway project. Section 20D provides for filing of objections and grant of personal hearing. The provision is in two parts. Subsection (1) states that any person interested in the land, may within a period of 30 days from the date of publication of the notification under subsection (1) of Section 20A, file objections to the acquisition of land for the purpose mentioned in that subsection. Under subsection (2) of Section 20D, the mandate of the statute is that : Every objection shall be made in writing to the Competent Authority; The Competent Authority is mandated to give an opportunity of hearing to the Objector, either in person or by a legal practitioner; That “after hearing” all objections, and after making such further enquiry, if any, the Competent Authority may either allow or disallow the objections by an order. Subsection (3) of Section 20D states that an order passed by the Competent Authority under Section 20D (2) shall be final. Sub section (1) of Section 20E provides that if no objections are received, or if the objections are disallowed, then the Competent Authority shall submit a report to the Central Government. On receipt of such report from the Competent Authority, the Central Government shall declare by notification, that the land should be acquired for the purpose mentioned in sub section (1) of Section 20A. On the publication of the declaration under Section 20E(1), the land shall vest absolutely in the Central Government free from all encumbrances. Sub section (3) of Section 20E states that if the declaration is not published within a period of one year from the date of publication of the Notification under 20 Section 20A(1), the Notification shall cease to have any effect. Sub section (4) of Section 20E states that the declaration made by the Central Government under sub section (1) shall not be called in question in any court of law or by any authority. [Para 9]
Petitioner’s Advocate : Nachiketa Joshi
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