IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA WRIT PETITION Nos.41557-559/2015 (LA-RES) BETWEEN :
SRI OGARCHAND JAIN S/O LATE GHEWARCHAND JAIN AGED ABOUT 56 YEARS CHAIRMAN OF SHRI OGARCHAND GHEWARCHANDJI JAIN TRUST HAVING ITS REGISTERED OFFICE AT No.27/1, SOLANKI BHAVAN N.S. IYENGAR STREET, NEHRU NAGAR BENGALURU - 560 020 ...PETITIONER (BY SRI P.D.SURANA, ADV.) AND :
1. UNION OF INDIA REP BY SECRETARY OF MINISTRY OF ROAD TRANSPORT & HIGHWAYS NEW DELHI - 110 075 2. THE NATIONAL HIGHWAY AUTHORITY OF INDIA MINISTRY OF ROAD TRANSPORT & HIGHWAYS REP. BY ITS SECRETARY, G-5 & 6, SECTOR -10, DWARKA NEW DELHI - 110 075 3. DEPUTY GENERAL MANAGER (TECH) & PROJECT DIRECTOR NATIONAL HIGHWAY AUTHORITY OF INDIA PROJECT IMPLEMENTATION UNIT NEAR J.M.I.T. NH-4 (KM 202) CHITRADURGA - 577502 4. THE CHIEF GENERAL MANAGER (TECH) SY.NO.13, 14TH KM, NEAR DEEPAK BUS STAND NAGASANDRA, M.S. RAMAIAH ENCLAVE TUMKUR ROAD, BANGALORE - 560 073 5. SPECIAL LAND ACQUISITION OFFICER & COMPETENT AUTHORITY NELAMANGALA, TUMKUR SECTION NH-48, OLD NH – 4, NATIONAL HIGHWAY AUTHORITY OF INDIA No.678/3, NEERUBHAVI KEMPANNA LAYOUT, HEBBAL BENGALURU - 560 024 …RESPONDENTS (BY SRI GURURAJ YADRAVI, ADV. FOR R-1 & R-2; SMT.SHILPA SHAH, ADV. FOR R-3 & R-5.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED 29.04.2014 BEARING NO.SO 1176(E) ISSUED BY THE R-2 UNDER THE PROVISIONS OF SECTION 3A OF NATIONAL HIGHWAY ACT, 1956 PRODUCED AS ANNEXURE-K AND FINAL NOTIFICATION DATED 20.04.2015 BEARING NO.SO 1053(E) ISSUED UNDER THE PROVISIONS OF SUB SECTION 2 OF 3D OF NATIONAL HIGHWAY ACT 1956, PRODUCED AS ANNEXURE-S SO FAR, THEY RELATES TO THE PETITIONER.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED, ARE COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R The petitioner has assailed the Preliminary Notification dated 29.04.2014 issued under Section 3-A and Final Notification dated 20.4.2015 issued under Sub- Section(2) of Section 3D of the National Highway Act, 1956 (‘Act 1956’ for short), by the respondent No.2, so far as the petitioner is concerned.
2. By way of an amendment, challenge is made to the inclusion of the Act, 1956 in Schedule IV of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short ‘Act, 2013’) and to the award dated 28.02.2017 passed by respondent No.5.
3. The petitioner is the Chairman of Trust - Shri Ogarchand Ghewarchandji Jain Trust and claims that he was the absolute owner of the petition properties. The Ministry of Road Transport & Highways has issued a Notification under Section 3A of the Act, 1956 proposing to acquire various lands for the purpose of widening/six lane National Highway No.48 (old NH 4) in the stretch of 29.50 kms to 75 kms in the District of Bangalore Rural and Tumkur Districts.
4. Final Notification dated 20.04.2015 has been issued under the provisions of Sub-Section(2) of Section 3D of the Act, 1956 notifying the lands of the petitioner for the Truck Terminal. Being aggrieved, the petitioner is before this Court.
5. It was urged that the acquisition proceedings are lapsed since no award has been made within the period of one year in terms of section 25 of the Act, 2013. It was contended that Section 105 of the said Act, 2013 provides that the provisions of the said Act shall not apply to the enactments relating to land acquisition specified in the IV Schedule. One of the enactment specified in the IV schedule is the Act, 1956. Exclusion of the Act, 1956 from the applicability of the Act, 2013 is discriminatory and arbitrary. Though such contentions were raised, finally, the challenge was restricted/focussed on the award dated 28.02.2017 passed by the respondent No.5.
6. Learned counsel Sri.P.D.Surana, appearing for the petitioner submitted that no reasonable opportunity of hearing was provided to the petitioner before passing the award. Objections filed by the petitioner before the respondent No.5 indeed would depict that the petitioner has claimed the market value of Rs.5 crores per acre relating to the lands acquired as on the date of the preliminary Notification with other statutory benefits permissible under the Land Acquisition Act, apart from the compensation of acquisition of land, the development expenses incurred at Rs.45,93,500/- and the expenditure towards legal expenses and other statutory expenses at Rs.10 lakhs.
7. Respondent No.5 while passing the award has recorded at Sl.No.17 that the learned counsel for the petitioner has requested to pay the total compensation of Rs.43,93,500/- per acre which shows the perfunctory attitude of the respondent No.5 in passing the award. It was argued that a reference has been made to the valuation report of structures actually existing in the lands under acquisition as per JMC received from the NHAI approved valuer, but the same was not made available to the petitioner. The award is composite in nature insofar as several survey numbers of Halenijagal village belonging to different persons. No award is passed regarding 3 guntas of land acquired out of the total land acquired. Hence, the learned counsel sought for setting aside the award and a remand to respondent No.5 for re-consideration.
8. Learned counsel for the respondents justifying the impugned Notifications and the Award submitted that Section 25 of the Act, 2013 is not applicable to the acquisition of lands under the Act, 1956. The scheme would not lapse for the delay, if any, caused in passing the award. Considering the relevant material evidence, compensation has been determined as per the award. If the petitioner is aggrieved by the same, he has the remedy before the appropriate forum i.e., Civil Court, to be referred to the Arbitrator for enhancement of compensation under Section 3G(5) of the Act, 1956. The valuation abstract sheet for Halenijagal village shows that the petitioner has been awarded with the compensation of Rs.15,76,152/- towards the compound wall/building. Further, the extract of the break up compensation would substantiate the same and the valuation abstract sheet in respect of structure on computation of compensation awarded in respect of the land in question to an extent of 4147 sq. mtrs. acquired in Sy.No.43/11 to 43/13 of Halenijagal village is placed on record whereby total compensation of Rs.2,98,47,015 (Rupees two crores ninety eight lakhs forty seven thousand and fifteen only) has been awarded.
9. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
10. Section 13 of the Act provides that any land required by the authority for discharging its functions under this 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 Highway Act, 1956. The 3rd respondent is entrusted with wide range of duties and functions in order to regulate the smooth flow of traffic along with providing facilities and amenities as well. Provision of Truck Lay bay has been proposed in the Detailed Project Report by the consultant for better management of the National Highway, by taking into consideration all factors, which is an integral part of the Project of 6-laning of NH 48.
11. Section 105 of the Act, 2013 specifies that the provisions of the said Act shall not apply to the special enactments envisaged in the Fourth Schedule to the said Act. The National Highways Act 1956 is at Sl.No.7 of the said IV Schedule besides the other enactments. Sub-section (3) of Section 105 of the Act, 2013 enables the Central Government to extend the provision relating to determination of compensation in accordance with the First, Second and Third Schedules of the Act. The Gazette Notification dated 28.2.2015 issued by the Central Government substantiates that Section 105 of the Act 2013 shall extend to 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 said Act. However, the Central Government keeping in view the difficulties of the land owners who are similarly placed but acquired under the 13 enactments specified in the Fourth Schedule, has issued the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015. It is made clear that the provisions of the 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 Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth schedule to the said Act.
12. The Gazette Notification dated 28/08/2015 is quoted below for ready reference:
“MINISTRY OF RURAL DEVELOPMENT ORDER New Delhi, the 28th August, 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 1st January, 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 31st December, 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 3rd April, 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 30th May, 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;
As 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 land owners 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 land owners under the said Ordinance;
And whereas, the Central Government considers it necessary to extend the benefits available to the land owners under the RFCTLARR Act to similarly placed land owners 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 land owners 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 land owners;
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.
2. The 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.
Sd/- (F.No.13011/01/2014-LRD) K.P.KRISHNAN, Addl. Secy.”
13. Considering these aspects, this Court in the case of Sri. G.C.Thippeswamy and others Vs. The Union of India (D.D.16.4.2018) in paragraphs 19, 21, 23 and 26 has held thus:
19. The package of compensation in the First, Second and Third Schedules is compendium compensation and there is no dispute from the side of the Respondents that the relevant provisions of determination of compensation under these First, Second and Third Schedules will apply to the present case of the land acquisition by NHAI also.
21. There is no justifiable reason for quashing of the Preliminary and Final Notifications for acquisition much less the Awards passed by the concerned Special Land Acquisition Officer. Therefore, even while the Amendment Application may be allowed by this Court for taking on record the Awards in question but, there is no reason to quash the same, as the same are apparently issued in accordance with the First Schedule to the Act of 2013.
23. This Court does not find any force in the contentions raised by the learned counsel for the petitioners that the procedural aspects for undertaking the land acquisition proceedings as provided under the New L.A. Act of 2013 also will apply to the acquisition under the provisions of National Highways Act, 1956. The position of law is on the contrary. Section 105 of the New L.A. Act of 2013 excludes the applicability of the New L.A. Act of 2013 to the acquisitions under the special enactments enumerated in the Fourth Schedule to the Act which includes National Highways Act, 1956. Only to the extent of providing relief by way of uniform compensation, the Central Government has extended being empowered under Section 105(3) of the New L.A. Act of 2013, the provisions relating to compensation even to the acquisitions under these Special Enactments including the acquisitions under National Highways Act, 1956.
26. The provisions of the New L.A. Act of 2013 do not override or render the provisions of the National Highways Act, 1956 otiose. On the contrary, they are harmonious and complimentary to each other with specified area of connectivity like the provisions relating to compensation under the New L.A. Act of 2013 applying to National Highways Act, 1956 by virtue of delegated power given to the Central Government under Section 105(3) of the New L.A. Act of 2013.”
14. The Hon'ble Apex Court in the case of Union of India Vs. Kushala Shetty and others reported in 2011 (12) SCC 69 in paragraph 24 has observed thus:
“24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would sub serve the public interest. In such matters, the scope of judicial review is very limited. The Court can nullity (sic! nullify) the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."
15. In the light of these judgments no justifiable reason is found for quashing the preliminary and final Notification for acquisition. No violation of mandate of Act, 1956 has been established nor the charge of malice in fact has been proved. Even considering the discrepancies pointed out by the learned counsel for the petitioner in the award in question, there is no reason to set aside the same in view of the appellate remedy available under Section 3G(5) of the Act, 1956. The procedural aspects in passing the award not being faulted with, merely for the reason that the Special Land Acquisition Officer-respondent No.5 has mentioned that the learned counsel for the petitioner has requested to pay the compensation of Rs.43,93,500/- per acre instead of Rs.5 crores claimed by the petitioner in terms of the claim petition dated 17.8.2015, would not be a ground to remand the matter to the respondent No.5 for re-consideration which otherwise can be very well adjudicated upon by the appellate Forum. Even the amendment application is to be considered, there is no reason to quash the award even if no compensation is awarded for 3 guntas of land acquired as contended by the learned counsel for the petitioner. All these issues can be addressed by the appellate Forum.
16. The reference made to the judgment of this Court by the learned counsel for the petitioner in the case Smt Lalitha and another Vs. of Union of India & others reported in AIR 2003 Karnataka 165 declaring section 3-J of the Act, as amended by Amendment Act (16 of 1997) as unconstitutional has been stayed by the Writ Appeal Court in W.A.No.6115/2002 and the same is pending before this Court - Dharwad Bench.
17. It is the contention of the respondent-Authority that an award was previously passed under Section 3G(5) of the Act 1956 and pursuant to the change in position of law, the award at Annexure R9 dated 28.02.2017 has been passed considering compensation in accordance with Schedule-I of the Act 2013 as could be seen from the preamble to the award at Annexure R9. Hence, it is not the case of lackadaisical attitude of the respondent-Authority in not passing the award within a reasonable time. No ex- facie perversity, arbitrariness, malafides are found in the award. In the event of the petitioner is dissatisfied with the quantum of compensation awarded, recourse has to be taken in accordance with law.
For the foregoing reasons, writ petitions stand disposed of with liberty to the petitioner to take recourse to law before the appropriate Forum and if such proceedings are initiated before the appropriate Forum for enhancement of compensation by the petitioner within a period of four weeks from the date of the receipt of the certified copy of the order, the same shall be considered by the appellate Forum on merits without objecting to the period of limitation and a decision shall be taken in an expedite manner. The respondent Nos.2 and 3 shall pay the compensation determined in terms of the award dated 28.02.2017 within a period of two weeks from today and the petitioner is at liberty to withdraw the same without prejudice to his rights to seek for further enhancement of the compensation determined.
With the aforesaid observations and directions, writ petitions stands disposed of.
In view of the disposal of the writ petitions, all the pending I.As stand disposed of.
Sd/- JUDGE Dvr: