Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6270 OF 2019
(Arising out of SLP (Civil) No. 32055 of 2018)
Nareshbhai Bhagubhai & Ors. …Appellants
versus
Union of India & Ors. …Respondents
WITH
CIVIL APPEAL NO. 6271 OF 2019
(Arising out of SLP (Civil) No. 32056 of 2018)
Ravibhai Vallabhbhai Sutariya & Ors. …Appellants
versus
Signature Not Verified
Union of India & Ors. …Respondents
Digitally signed by
NEELAM GULATI
Date: 2019.08.13
15:56:49 IST
Reason:
1
WITH
CIVIL APPEAL NO. 6272 OF 2019
(Arising out of SLP (Civil) No. 32057 of 2018)
Ishwerbhai Bhikabhai Patel & Ors. …Appellants
versus
Union of India & Ors. …Respondents
WITH
CIVIL APPEAL NO. 6273 OF 2019
(Arising out of SLP (Civil) No. 32058 of 2018)
Vallabhbhai Chanabhai Ahir & Ors. …Appellants
versus
Union of India & Ors. …Respondents
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
2
1. The present Civil Appeals have been filed to challenge the
Final Judgment and Order dated 25.07.2018 passed by the
Gujarat High Court, whereby the Special Civil Application
Nos. 19409 of 2015, 12711 of 2016, 14000 of 2016, and
14001 of 2016 have been dismissed.
2. Since a common issue arises in all 4 Civil Appeals, they are
being disposed of by the present common Judgment and
Order.
3. The factual matrix in which the present Civil Appeals have
been filed is as under :
3.1. On 08.02.2011, a Notification was issued under
Section 20A of the Railways Act, 1989 [hereinafter
referred to as “the said Act”] by the Ministry of
Railways notifying its intention to acquire the lands
specified in 18 Villages, situated in District Surat,
Gujarat for the public purpose of construction of the
Western Dedicated Freight Corridor.
3
The total land under acquisition was a stretch of 131
kms. The land owned by the Appellants, comprising of
approximately 6 kms, was included under the
Notification.
3.2. The Appellants along with other landowners filed
written Objections between 06.04.2011 and
07.04.2011 under Section 20D(1) of the Act before the
Competent Authority/ Special Land Acquisition Officer,
Surat [hereinafter referred to as “the Competent
Authority”], Surat to challenge the proposed
acquisition.
3.3. The Competent Authority vide letter dated 15.07.2011,
informed the landowners that the acquisition was for
a necessary public purpose i.e. the development of the
Western Dedicated Freight Corridor. It was stated that
compensation would be paid to all affected land
owners in accordance with Sections 20F and 20G of
the Railways Act, 1989.
The landowners were asked to remain present with
necessary proofs at the time of personal hearing, the
date of which would be intimated to them.
4
3.4. The Competent Authority vide letter dated 19.07.2011,
directed the landowners to appear for a personal
hearing on the Objections on 30.07.2011.
3.5. The landowners appeared before the Competent
Authority on 30.07.2011 for personal hearing, and
submitted further written Objections on 31.07.2011.
3.6. The Competent Authority submitted its Report to the
Central Government under Section 20E(1) of the Act on
03.01.2012.
On 06.02.2012, the Ministry of Railways issued a
Notification under Section 20E(1) of the Railways Act,
1989 stating that 59 Objections had been received in
respect of the proposed acquisition, which had been
considered and disallowed by the Competent Authority.
3.7. On 06.02.2013 and 07.02.2013, Awards were passed
by the Competent Authority under Section 20F of the
Railways Act, 1989.
3.8. On 13.08.2013, Shri Ghanshyamsinh Gambhirsinh
Vashi, a landowner, filed an RTI Application before the
Competent Authority seeking a certified copy of the
Order passed on the Objections filed by the land
owners.
3.9. The Competent Authority replied to the said RTI
Application on 05.09.2013, and stated that the reply to
5
the Objections raised by the landowners had already
been communicated letter dated 15.07.2011.
vide
3.10. The Appellants herein challenged the acquisition
proceedings by filing Special Civil Application Nos.
19409 of 2015, 12711 of 2016, 14000 of 2016, and
14001 of 2016 before the Gujarat High Court.
The principal ground of challenge raised by the
Appellants was that no Order had been passed on the
Objections in accordance with Section 20D(2) of the
said Act.
The Appellants prayed for quashing and setting aside
the Notification issued under Section 20A on
08.02.2011, and the Declaration issued under Section
20E on 06.02.2012.
3.11. During the pendency of the proceedings, the High
Court vide Interim Order dated 12.07.2018, directed
the Respondents to file an Affidavit giving specific
details pertaining to the disposal of the Objections after
personal hearing was granted on 30.07.2011.
3.12. The Chief Project Manager, Dedicated Freight Corridor
Corporation of India Limited filed Affidavit dated
17.07.2018 on behalf of the Respondents before the
High Court, wherein it was stated that :
“4. I state that the clarification/reply given vide
letter dated 15/7/2011 does not indicate the
6
decision/order/predetermination of the
Competent Authority. The Competent Authority
has merely clarified the purpose of acquisition
and provision of Railway Amendment Act 2008
to be considered while awarding compensation.
On the contrary, in the said letter dated
15/7/2011, the Competent Authority has clearly
informed the objector to remain present with all
the relevant documents on a date which was to
be intimated later.
…
8. I state that the Competent Authority, after
hearing all the objectors of land under
acquisition, has passed two orders dated
28//11/2011 and 3/1/2012 disallowing all the
objections raised by the objectors in public
interest. Annexed hereto and marked as
Annexure VI Colly. Are the copies of the orders
dated 28/11/2011 as well as 3/1/2012.”
3.13. The High Court vide Final Judgment and Order dated
25.07.2018 dismissed the Special Civil Applications
filed by the Appellants.
The Court took the view that in matters involving
highly technical and scientific fields, courts would be
extremely slow in overruling the decision taken by the
Government after due deliberation. Unless it was
pointed out that relevant considerations were not
properly weighed, or that the decision was blatantly
mala fide , courts would not attempt to substitute their
understanding of such complex subjects for that of the
Government. The Appellants failed to produce any
7
material to support their objection that the proposed
railway line was not advisable.
It was, however, held that Section 20D of the Act
confers a valuable right on a person interested in the
land under acquisition, to raise objections, and be
heard on such objections. The objections raised by a
person interested have to be considered and disposed
of, after a hearing is given by the competent authority.
If the objections received by persons interested have
not been disallowed by the competent authority, it
would not be open for the Central Government to
proceed to issue the Declaration under Section 20E(1)
of the Act.
The High Court recorded its concern about the
manner in which the entire matter was dealt with by
the Respondents. The landowners were informed that
their objections were not valid even prior to the
personal hearing took place.
After the personal hearing took place on 30.07.2011,
the Competent Authority disposed of the objections on
the office file, but never conveyed the decision to the
objectors. The Competent Authority had not fulfilled
8
the important stage of disposal of the objections prior
to the Declaration being issued under Section 20E.
It was further observed that the Competent Authority
gave a completely wrong reply to the RTI Application
filed by the landowners. This was an act of utter
carelessness which had serious ramifications.
The Competent Authority vide Report dated
03.01.2012, informed the Chief Project Manager,
Dedicated Freight Corridor Corporation of India
Limited that all the Objections raised by the Appellants
were heard at length, and orally answered.
The Special Civil Applications were dismissed by the
High Court, and the Competent Authority was directed
to pay Costs of Rs. 50,000/ in each of the Special Civil
Applications.
3.14. Aggrieved by the aforesaid Judgment, the Appellant –
Landowners filed the present Civil Appeals.
4. We have heard the learned Counsel for the parties, and
perused the pleadings and written submissions filed by the
parties.
5. Mr. C. A. Sundaram, Senior Counsel appearing for the
Appellants inter alia submitted that :
9
5.1. The Objections raised by the Appellants were not
decided in accordance with the provisions of Section
20D(2) of the Act. The noncompliance of the same
would render the entire acquisition proceedings null
and void.
5.2. It was further submitted that the Reply dated
05.09.2013 given by the Respondents to the RTI
Application filed by the landowners, clearly showed
that there was no application of mind on the part of
the Respondents. The said Reply simply stated that the
Order disposing of the Objections raised by the land
owners had already been communicated to them on
15.07.2011.
5.3. The letter dated 15.07.2011 cannot be construed to be
an Order as contemplated by Section 20D(2) of the Act,
since it was issued prior to the personal hearing which
took place on 30.07.2011, and filing of the final
objections on 31.07.2011.
5.4. The letter dated 15.07.2011 was not an Order, but
merely a direction to the Appellants to remain present
with necessary proofs and documents at a time and
date which would be subsequently intimated.
10
5.5. It was submitted that even though the landowners
were granted a personal hearing, there was no order
passed either allowing or disallowing the objections as
per the mandate of S. 20 D(2) of the Act.
5.6. The orders dated 28.11.2011 and 03.01.2012 were not
communicated to the landowners. They were merely
notations made on the internal files of the Competent
Authority.
The rejection of the Objections vide an endorsement
or file noting would not constitute an order in the eyes
of the law. An order passed by a statutory authority
must be a speaking order supported by cogent reasons,
which is required to be communicated to the objectors.
6. Mr. Sanjay Jain, Additional Solicitor General appearing for
the Union of India inter alia submitted that :
6.1. The land acquisition proceedings in the present case
have been undertaken in compliance with Chapter IV A
of the Railways Act, 1989.
6.2. Chapter IV A of the Railways Act, 1989 is a self
contained code. The Court should not resort to, or seek
the aid of the Land Acquisition Act, 1894 to interpret
the provisions of the Railways Act, particularly since
Section 20N of the Act makes the provisions of the
11
Land Acquisition Act, 1894 inapplicable to acquisitions
under the Railways Act.
6.3. The process for filing objections under Section 20D(2)
of the Act is twofold. First, the Competent Authority
permits objections to be filed within 30 days of the
publication of the Notification under Section 20A by
the Central Government notifying its intention to
acquire land.
Thereafter, the Competent Authority has the
discretion to call for a personal hearing in order to
conduct a further enquiry if deemed necessary.
6.4. In the present case, the Objections raised by the
Appellants were received in writing on 06.04.2011. The
Competent Authority after considering the said
Objections, passed an Order on 15.07.2011 which was
communicated to each of the Appellants. Thereafter,
personal hearing was granted on 30.07.2011, which
was in the nature of a further enquiry.
The Objections raised by the Appellants in the
personal hearing on 30.07.2011 were almost identical
to those raised earlier on 06.04.2011. The Objections
raised by the Appellants had effectively been dealt with
12
vide letter dated 15.07.2011, which was communicated
to each of the Appellants.
6.5. It was further submitted that no order was required to
be passed after the personal hearing dated 30.07.2011,
because no fresh material came on record.
7. The issues which arise for our consideration are :
i) Whether the provisions of Section 20D(2) have not been
complied with by the Competent Authority in the
present case?
ii) If so, what would be the consequences of the non
compliance of Section 20D(2) with respect to the
acquisition proceedings, and the rights of the
Appellants?
8. Relevant Statutory Provisions
To determine the issues raised by the Appellants in the
present proceedings, the statutory provisions of the Railways
Act, 1989 as amended in 2008, would require to be
considered.
The statutory provisions for acquisition of land for a
Special Railway Project are contained in Chapter IV A of the
Railways Act, 1989. Chapter IV A is a complete selfcontained
code for the acquisition of land.
13
Chapter IV A was incorporated vide Amendment Act 11 of
2008. The Statement of Objects and Reasons of the Railways
(Amendment) Act, 2008 states that :
“2. There is a need to provide for land
acquisition provisions in the Railways Act, 1989
to empower the Central Government in the
Ministry of Railways for land acquisition on fast
track basis for the special railway projects on
the lines of the land acquisition provisions
available in the National Highways Act, 1956.”
Chapter IV A comprises of Section 20A to 20P of the
amended Act. The relevant provisions under Chapter IV A are
set out hereinbelow for ready reference :
“ 20A. Power to acquire land, etc.
(1) Where the Central Government is satisfied
that for a public purpose any land is required for
execution of a special railway project, it may, by
notification, declare its intention to acquire such
land.
(2) Every notification under subsection (1), shall
give a brief description of the land and of the
special railway project for which the land is
intended to be acquired.
(3) The State Government or the Union territory,
as the case may be, shall for the purposes of
this section, provide the details of the land
records to the competent authority, whenever
required.
(4) The competent authority shall cause the
substance of the notification to be published in
two local newspapers, one of which shall be in a
vernacular language.
14
20D. Hearing of objections, etc.
(1) Any person interested in the land may, within
a period of thirty days from the date of
publication of the notification under subsection
(1) of section 20A, object to the acquisition of
land for the purpose mentioned in that sub
section.
(2) Every objection under subsection (1), shall be
made to the competent authority in writing, and
shall set out the grounds thereof and the
competent authority shall give the objector an
opportunity of being heard, either in person or by
a legal practitioner, and may, after hearing all
such objections and after making such further
enquiry, if any, as the competent authority
thinks necessary, by order, either allow or
disallow the objections.
Explanation.For the purposes of this sub
section, “legal practitioner” has the same
meaning as in clause (1) of subsection (1) of
section 2 of the Advocates Act, 1961(25 of 1961).
(3) Any order made by the competent authority
under subsection (2) shall be final.
20E. Declaration of acquisition
(1) Where no objection under subsection (1) of
section 20D has been made to the competent
authority within the period specified therein or
where the competent authority has disallowed
the objections under subsection (2) of that
section, the competent authority shall, as soon
as may be, submit a report accordingly to the
Central Government and on receipt of such
report, the Central Government shall declare, by
notification, that the land should be acquired for
the purpose mentioned in subsection (1) of
section 20A.
(2) On the publication of the declaration under
subsection (1), the land shall vest absolutely in
the Central Government free from all
encumbrances.
15
(3) Where in respect of any land, a notification
has been published under subsection (1) of
section 20A for its acquisition, but no declaration
under subsection (1) of this section has been
published within a period of one year from the
date of publication of that notification, the said
notification shall cease to have any effect:
Provided that in computing the said period of one
year, the period during which any action or
proceedings to be taken in pursuance of the
notification issued under subsection (1) of
section 20A is stayed by an order of a court
shall be excluded.
(4) A declaration made by the Central
Government under subsection (1) shall not be
called in question in any court or by any other
authority.
20G. Criterion for determination of market
value of land
(1) The competent authority shall adopt the
following criteria in assessing and determining
the marketvalue of the land,
(i) the minimum land value, if any, specified in
the Indian Stamp Act, 1899(2 of 1899), for the
registration of sale deeds in the area, where the
land is situated; or
(ii) the average of the sale price for similar type
of land situated in the village or vicinity,
ascertained from not less than fifty per cent, of
the sale deeds registered during the preceding
three years, where higher price has been paid,
whichever is higher.
(2) Where the provisions of subsection (1) are
not applicable for the reason that:
(i) the land is situated in such area where the
transactions in land are restricted by or under
any other law for the time being in force in that
area; or
16
(ii) the registered sale deeds for similar land as
mentioned in clause (i) of subsection (1) are not
available for the preceding three years; or
(iii) the minimum land value has not been
specified under the Indian Stamp Act, 1899(2 of
1899) by the appropriate authority, the
concerned State Government shall specify the
floor price per unit area of the said land based
on the average higher prices paid for similar
type of land situated in the adjoining areas or
vicinity, ascertained from not less than fifty per
cent, of the sale deeds registered during the
preceding three years where higher price has
been paid, and the competent authority may
calculate the value of the land accordingly.
(3) The competent authority shall, before
assessing and determining the marketvalue of
the land being acquired under this Act,
(a) ascertain the intended land use category of
such land; and
(b) take into account the value of the land of the
intended category in the adjoining areas or
vicinity, for the purpose of determination of the
marketvalue of the land being acquired.
(4) In determining the marketvalue of the
building and other immovable property or assets
attached to the land or building which are to be
acquired, the competent authority may use the
services of a competent engineer or any other
specialist in the relevant field, as may be
considered necessary by the competent
authority.
(5) The competent authority may, for the purpose
of determining the value of trees and plants, use
the services of experienced persons in the field of
agriculture, forestry, horticulture, sericulture, or
any other field, as may be considered necessary
by him.
(6) For the purpose of assessing the value of the
standing crops damaged during the process of
land acquisition proceedings, the competent
authority may utilise the services of experienced
17
persons in the field of agriculture as he
considers necessary.
20I. Power to take possession
(1) Where any land has vested in the Central
Government under subsection (2) of section
20E, and the amount determined by the
competent authority under section 20F with
respect to such authority by the Central
Government, the competent authority may, by
notice in writing direct the owner as well as any
other person who may be in possession of such
land to surrender or deliver possession thereof to
the competent authority or any person duly
authorised by it in this behalf within a period of
sixty days of the service of the notice.
(2) If any person refuses or fails to comply with
any direction made under subsection (1), the
competent authority shall apply—
(a) In case of any land situated in any area
falling within the metropolitan area, to the
Commissioner of Police;
(b) In case of any land situated in any area
other than the area referred to in clause (a), to
the Collector of a district,
And such Commissioner or Collector, as the case
may be, shall enforce the surrender of the land,
to the competent authority or to the person duly
authorised by it.
20J. Right to enter into land where land
has vested in Central Government
Where the land has vested in the Central
Government under section 20E, it shall be lawful
for any person authorised by the Central
Government in this behalf, to enter and do other
act necessary upo0n the land for carrying out
the building, maintenance, management or
18
operation of the special railway project or part
thereof or nay other work connected therewith.
20N. Land Acquisition Act 1 of 1894 not to
apply
Nothing in the Land Acquisition Act, 1894 shall
apply to an acquisition under this Act.”
9. The scheme of Chapter IV A is as follows :
i) 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.
ii) Section 20D provides for filing of objections and grant
of personal hearing. The provision is in two parts :
a) 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 sub
section (1) of Section 20A, file objections to the
acquisition of land for the purpose mentioned in
that subsection.
b) Under subsection (2) of Section 20D, the mandate
of the statute is that :
Every objection shall be made in writing to the
Competent Authority;
19
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.
c) Subsection (3) of Section 20D states that an order
passed by the Competent Authority under Section
20D (2) shall be final.
iii) Subsection (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.
iv) 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 subsection (1) of Section 20A.
v) On the publication of the declaration under Section
20E(1), the land shall vest absolutely in the Central
Government free from all encumbrances.
vi) Subsection (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.
vii) Subsection (4) of Section 20E states that the
declaration made by the Central Government under
subsection (1) shall not be called in question in any
court of law or by any authority.
9.1. A reading of the aforesaid statutory provisions shows
that the landowner 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.
9.2. 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
21
would be contrary to the statute, invalid, and vitiated
by a predetermined disposition.
In the present case, it is the admitted position that after the
10.
personal hearing took place on 30.07.2011, no decision was
passed on the objections submitted by the landowners,
either allowing or disallowing their objections; nor was any
communication sent to them.
This is confirmed by the Affidavit of the Competent
Authority dated 18.07.2018 filed before the High Court (pgs.
296 – 301, Volume II), wherein it is stated as follows :
“7. It is respectfully submitted that personal
hearing was fixed in between 30.07.2011 to
18.08.2011 and 21.10.2011 to 03.01.2012 and
alongwith the objections raised by the
petitioners, in total 88 objectors are given
opportunity of hearing in the aforementioned
time period, and as the date qua the present
petitioners was fixed for providing hearing on
30.07.2011, the personal hearing was provided
wherein the same kind of objections were raised
as raised by way of objection application dated
06.04.2011 and therefore the objection was
recorded in the hearing memo dated 30.07.2011
and after completion of the hearing proceedings
qua all the objectors, on 28.11.2011 and
03.01.2012 respectively the noting was
prepared by endorsing that all the objections are
rejected and therefore the proposal was
submitted before the Dedicated Freight Corridor
Corporation for further procedure. I crave leave
to produce the original file at the time of hearing
of the present matter.
8. It is most humbly and respectfully submitted
that so far as the averment regarding reply
dated 05.09.2013 under RTI application is
22
concerned, I say and submit that the applicants
have asked for certified copy of the decision
taken for hearing provided to the objector,
wherein vide reply dated 05.09.2013 the reply
was given from the office of the answering
respondent by stating that “the reply to the
objection application given by you against
Notification under the provisions of Section 20A
of the Railway Amendment Act has already
been given to you by this office (copy is
enclosed). Moreover, necessary hearing in that
behalf has also been afforded to you. No order
regarding objection application is passed after
such hearing, because reply regarding objection
application has already been given to you.”
(emphasis supplied)
10.1. It is abundantly clear that 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.
10.2. During the hearing of the Special Civil Applications,
the High Court called for the office files of the
Respondent. On a perusal of the files, the Court
chanced upon a handwritten note sent by the
Competent Authority to the Chief Project Manager,
Dedicated Freight Corridor Corporation of India
Limited, which is set out hereinbelow :
“Finally after due consideration and taking in to
view the nationwide infrastructure, long lifetime
permanent utility and hence public utility is
greater than that of person, all the 59 objection
were disallowed by order by the undersigned
23
and their applications for objection were filed at
this end.”
The file noting in the office files of the Competent
Authority cannot be considered to be an order on the
objections.
Section 20D is a mandatory provision which confers a
11.
substantive and valuable right on the landowners, 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.
24
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
1
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
2
fundamental right.
1 Union of India v. Shivraj , (2014) 6 SCC 564.
2
Ibid .
25
In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
3
Chenai , this Court held that:
6. It is not in dispute that Section 5A of the Act
“
confers a valuable right in favour of a person
whose lands are sought to be acquired. Having
regard to the provisions contained in Article 300
A of the Constitution, the State in exercise of its
power of “eminent domain” may interfere with
the right of property of a person by acquiring the
same but the same must be for a public purpose
and reasonable compensation therefor must be
paid.
…
9. It is trite that hearing given to a person must
be an effective one and not a mere formality.
Formation of opinion as regards the public
purpose as also suitability thereof must be
preceded by application of mind as regards
consideration of relevant factors and rejection of
irrelevant ones. The State in its decisionmaking
process must not commit any misdirection in
law. It is also not in dispute that Section 5A of
the Act confers a valuable important right and
having regard to the provisions contained in
Article 300A of the Constitution it has been held
to be akin to a fundamental right.
(emphasis supplied)
In N. Padmamma v. S. Ramakrishna Reddy , this Court held
that :
“21. If the right of property is a human right as
also a constitutional right, the same cannot be
taken away except in accordance with law.
Article 300A of the Constitution protects such
right. The provisions of the Act seeking to divest
such right, keeping in view of the provisions of
Article 300A of the Constitution of India, must
be strictly construed.”
(emphasis supplied)
3
(2005) 7 SCC 627.
26
4
In Om Prakash v. State of U.P. , this Court held that :
“21. Our attention was also invited by Shri
Shanti Bhushan, learned Senior Counsel for the
appellants to a decision of a twoJudge Bench of
this Court in the case of State of Punjab v.
Gurdial Singh [(1980) 2 SCC 471] wherein
Krishna Iyer, J. dealing with the question of
exercise of emergency powers under Section 17
of the Act observed in para 16 of the Report that
save in real urgency where public interest did
not brook even the minimum time needed to give
a hearing, land acquisition authorities should
not, having regard to Articles 14 and 19, burke
an inquiry under Section 17 of the Act. Thus,
according to the aforesaid decision of this Court,
inquiry under Section 5A is not merely statutory
but also has a flavour of fundamental rights
under Articles 14 and 19 of the Constitution
though right to property has now no longer
remained a fundamental right, at least
observation regarding Article 14, visàvis,
Section 5A of the Land Acquisition Act would
remain apposite.
The said decision has been cited with approval
in Union of India v. Krishan Lal Arneja[(2004) 8
SCC 453].”
(emphasis supplied)
11.1. The limited right given to a landowner/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 dutybound to
consider the objections raised by the Appellants, and
4
(1998) 6 SCC 1.
27
pass a reasoned order, which should reflect application
of mind to the objections raised by the landowners.
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.
11.2. In the present case, 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 quasijudicial
function is required to pass a reasoned order after due
application of mind.
5
In Laxmi Devi v. State of Bihar , this Court held that :
“9. The importance of Section 5A cannot be
overemphasised. It is conceived from natural
justice and has matured into manhood in the
maxim of audi alteram partem i.e. every person
likely to be adversely affected by a decision
must be granted a meaningful opportunity of
being heard. This right cannot be taken away by
a side wind, as so powerfully and pellucidly
stated in Nandeshwar Prasad v. State of U.P.
[AIR 1964 SC 1217]. So stringent is this right
that it mandates that the person who heard and
considered the objections can alone decide them;
and not even his successor is competent to do so
even on the basis of the materials collected by
his predecessor. Furthermore, the decision on
the objections should be available in a self
contained, speaking and reasoned order;
reasons cannot be added to it later as that
would be akin to putting old wine in new bottles.
We can do no better than commend a careful
5
(2015) 10 SCC 241.
28
perusal of Union of India v. Shiv Raj [(2014) 6
SCC 564 : (2014) 3 SCC (Civ) 607] , on these as
well as cognate considerations.”
(emphasis supplied)
6
In Raghbir Singh Sehrawat v. State of Haryana , this
Court held that :
“40. Though it is neither possible nor desirable
to make a list of the grounds on which the
landowner can persuade the Collector to make
recommendations against the proposed
acquisition of land, but what is important is that
the Collector should give a fair opportunity of
hearing to the objector and objectively consider
his plea against the acquisition of land. Only
thereafter, he should make recommendations
supported by brief reasons as to why the
particular piece of land should or should not be
acquired and whether or not the plea put
forward by the objector merits acceptance. In
other words, the recommendations made by the
Collector must reflect objective application of
mind to the objections filed by the landowners
and other interested persons.”
(emphasis supplied)
In Usha Stud & Agricultural Farms (P) Ltd. v. State of
7
Haryana , this Court held that,
“ The ratio of the aforesaid judgments is that
Section 5A(2), which represents statutory
embodiment of the rule of audi alteram partem,
gives an opportunity to the objector to make an
endeavour to convince the Collector that his land
is not required for the public purpose specified in
the Notification issued under Section 4(1) or that
there are other valid reasons for not acquiring
the same. That section also makes it obligatory
for the Collector to submit report(s) to the
appropriate Government containing his
recommendations on the objections, together
with the record of the proceedings held by him
so that the Government may take appropriate
6
(2012) 1 SCC 792.
7
(2013) 4 SCC 210.
29
decision on the objections. Section 6(1) provides
that if the appropriate Government is satisfied,
after considering the report, if any, made by the
Collector under Section 5A(2) that particular
land is needed for the specified public purpose
then a declaration should be made. This
necessarily implies that the State Government is
required to apply mind to the report of the
Collector and take final decision on the
objections filed by the landowners and other
interested persons. Then and then only, a
declaration can be made under Section 6(1). ”
(emphasis supplied)
In Hindustan Petroleum Corpn. Ltd. (supra) , this
Court held that:
“16. However, considerations of the objections
by the owner of the land and the acceptance of
the recommendations by the Government, it is
trite, must precede a proper application of mind
on the part of the Government. As and when a
person aggrieved questions the decisionmaking
process, the court in order to satisfy itself as to
whether one or more grounds for judicial review
exist, may call for the records whereupon such
records must be produced. The writ petition was
filed in the year 1989. As noticed hereinbefore,
the said writ petition was allowed. This Court,
however, interfered with the said order of the
High Court and remitted the matter back to it
upon giving an opportunity to the parties to raise
additional pleadings.
…
19. Furthermore, the State is required to apply
its mind not only on the objections filed by the
owner of the land but also on the report which is
submitted by the Collector upon making other
and further enquiries therefor as also the
recommendations made by him in that behalf.
The State Government may further inquire into
the matter, if any case is made out therefor, for
arriving at its own satisfaction that it is
necessary to deprive a citizen of his right to
property. It is in that situation that production of
records by the State is necessary.
30
…
28. Although assignment of reasons is the part
of principles of natural justice, necessity thereof
may be taken away by a statute either
expressly or by necessary implication. A
declaration contained in a notification issued
under Section 6 of the Act need not contain any
reason but such a notification must precede the
decision of the appropriate Government. When a
decision is required to be taken after giving an
opportunity of hearing to a person who may
suffer civil or evil consequences by reason
thereof, the same would mean an effective
hearing.”
(emphasis supplied)
8
In Kranti Associates (P) Ltd. v. Masood Ahmed Khan ,
this Court held that:
12. The necessity of giving reason by a body or
“
authority in support of its decision came up for
consideration before this Court in several cases.
Initially this Court recognised a sort of
demarcation between administrative orders and
quasijudicial orders but with the passage of
time the distinction between the two got blurred
and thinned out and virtually reached a
vanishing point in the judgment of this Court
A.K. Kraipak in v. Union of India [(1969) 2 SCC
262 : AIR 1970 SC 150]
…
47. Summarising the above discussion, this
Court holds:
(a) In India the judicial trend has always been to
record reasons, even in administrative decisions,
if such decisions affect anyone prejudicially.
(b) A quasijudicial authority must record
reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to
serve the wider principle of justice that justice
must not only be done it must also appear to be
done as well.
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasijudicial or even administrative
power.
8
(2010) 9 SCC 496.
31
(e) Reasons reassure that discretion has been
exercised by the decisionmaker on relevant
grounds and by disregarding extraneous
considerations.
(f) Reasons have virtually become as
indispensable a component of a decisionmaking
process as observing principles of natural justice
by judicial, quasijudicial and even by
administrative bodies.
(g) Reasons facilitate the process of judicial
review by superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions
based on relevant facts. This is virtually the
lifeblood of judicial decisionmaking justifying
the principle that reason is the soul of justice.
(i) Judicial or even quasijudicial opinions these
days can be as different as the judges and
authorities who deliver them. All these decisions
serve one common purpose which is to
demonstrate by reason that the relevant factors
have been objectively considered. This is
important for sustaining the litigants' faith in the
justice delivery system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasijudicial authority is not
candid enough about his/her decisionmaking
process then it is impossible to know whether
the person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be
cogent, clear and succinct. A pretence of reasons
or “rubberstamp reasons” is not to be equated
with a valid decisionmaking process.
(m) It cannot be doubted that transparency is the
sine qua non of restraint on abuse of judicial
powers. Transparency in decisionmaking not
only makes the judges and decisionmakers less
prone to errors but also makes them subject to
broader scrutiny. (See David Shapiro in Defence
of Judicial Candor [(1987) 100 Harvard Law
Review 73137] .)
(n) Since the requirement to record reasons
emanates from the broad doctrine of fairness in
decisionmaking, the said requirement is now
32
virtually a component of human rights and was
considered part of Strasbourg Jurisprudence.
See Ruiz Torija v. Spain [(1994) 19 EHRR 553]
EHRR, at 562 para 29 and Anya v. University of
Oxford [2001 EWCA Civ 405 (CA)] , wherein the
Court referred to Article 6 of the European
Convention of Human Rights which requires,
“adequate and intelligent reasons must be given
for judicial decisions”.
(o) In all common law jurisdictions judgments
play a vital role in setting up precedents for the
future. Therefore, for development of law,
requirement of giving reasons for the decision is
of the essence and is virtually a part of “due
process”.”
(emphasis supplied)
11.3. File Notings and lack of Communication
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.
9
In Bachhittar Singh v. State of Punjab , a Constitution
Bench held that merely writing something on the file
does not amount to an order. For a filenoting to
amount to a decision of the Government, it must be
communicated to the person so affected, before that
person can be bound by that order. Until the order is
communicated to the person affected by it, it cannot be
regarded as anything more than being provisional in
character.
10
Similarly, in Shanti Sports Club v. Union of India ,
this Court held that notings recorded in the official
files, by the officers of the Government at different
levels, and even the Ministers, do not become a
decision of the Government, unless the same are
sanctified and acted upon, by issuing an order in the
9
AIR 1963 SC 395.
10
(2009) 15 SCC 705.
34
name of the President or Governor, as the case may be,
and are communicated to the affected persons.
11
In Sethi Auto Service Station v. DDA , this Court held
that:
“14. It is trite to state that notings in a
departmental file do not have the sanction of law
to be an effective order. A noting by an officer is
an expression of his viewpoint on the subject. It
is no more than an opinion by an officer for
internal use and consideration of the other
officials of the department and for the benefit of
the final decisionmaking authority. Needless to
add that internal notings are not meant for
outside exposure. Notings in the file culminate
into an executable order, affecting the rights of
the parties, only when it reaches the final
decisionmaking authority in the department,
gets his approval and the final order
communicated is to the person concerned.
…
16. To the like effect are the observations of this
Court in Laxminarayan R. Bhattadv. State of
Maharashtra [(2003) 5 SCC 413] , wherein it
was said that a right created under an order of a
statutory authority must be communicated to the
person concerned so as to confer an enforceable
right.”
(emphasis supplied)
11.4. Contradictory Stand taken by the Respondents
The mandate of the law is that the order on the
objections is required to be passed by the Competent
Authority “after the personal hearing” is granted.
The Respondents had filed an Affidavit dated
17.07.2018 before the High Court wherein it was
11
(2009) 1 SCC 180.
35
stated that the reply given vide letter dated 15.07.2011
does not indicate the decision/order/predetermination
of the Competent Authority. The Competent Authority
had informed the objectors to remain present with all
material documents at the time of personal hearing,
the date of which would be notified later.
At the time of arguments before this Court, it was
sought to be contended by the Additional Solicitor
General for the Union of India that the letter dated
15.07.2011 was an order passed under Section 20D(2)
of the Act.
We find that the stand taken by the Respondents
before the High Court and this Court is completely
contradictory, and does not commend acceptance.
11.5. 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
36
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
12
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
13
without his consent, must be strictly construed. The
Railways Act, 1989 being an expropriatory legislation,
14
its provisions have to be strictly construed.
11.6. The Competent Authority being a quasijudicial
authority, is obligated by law to act in conformity with
mandatory statutory provisions. It is important to note
that this is the only opportunity made available to a
landowner, as on submission of the Report to the
Central Government, there is no further consideration
that takes place. The Central Government acts upon
the Report of the Competent Authority, and issues the
Declaration under Section 20E of the said Act.
12 Nazir Ahmad v. King Emperor , (1875) LR 1 Ch D 426 followed in Rao Shiv Bahadur Singh
v. , AIR 1954 SC 322; v. , AIR 1964 SC
State of Vindhya Pradesh State of U.P. Singhara Singh
358; J&K Housing Board v. Kunwar Sanjay Krishan Kaul, (2011) 10 SCC 714; Kunwar Pal
Singh v. State of U.P ., (2007) 5 SCC 85.
13 Jilubhai Nanbhai Khachar v. State of Gujarat , 1995 Supp (1) SCC 596; See also Khub
Chand v. State of Rajasthan , AIR 1967 SC 1074; CCE v. Orient Fabrics (P) Ltd. , (2004) 1 SCC
597.
14
Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. , (2007) 8 SCC 705.
37
This is in contradistinction with the provisions of the
Land Acquisition Act, 1894. Section 6 of the Land
Acquisition Act requires the satisfaction of Central
Government before the Declaration is issued.
11.7. In the absence of an order passed under Section
20D(2), the subsequent steps taken in the acquisition
would consequentially get invalidated.
12. The issue which remains to be decided is that in the absence
of an order passed on the objections under Section 20D,
should the consequential steps be invalidated.
We find that the challenge before this Court has been made
by the Appellants with respect to a stretch of land
admeasuring approximately 6 kms, out of the total stretch of
131 kms. The remaining stretch of land comprising of 125
kms has been acquired, and stands vested in the
Government. The Respondents have stated on Affidavit that
preconstruction activity and earth work has been completed
on most parts of the stretch. Furthermore, most of the
bridges are either in progress, or have already been
completed.
The Senior Counsel representing the Appellants in all the
present Civil Appeals, after taking instructions from his
38
clients, submitted that since the land was being acquired for
a public utility project, his clients would be satisfied if they
were granted compensation by awarding the current rate for
acquisition of land.
Admittedly, no mala fides have been alleged by the
Appellants against the Respondents in the acquisition
proceedings. The larger public purpose of a railway project
would not be served if the Notification under Section 20A is
quashed. The public purpose of the acquisition is the
construction and operation of a Special Railway Project viz .
the Western Dedicated Freight Corridor in District Surat,
Gujarat.
In these extraordinary circumstances, we deem it fit to
balance the right of the Appellants on the one hand, and the
larger public purpose on the other, by compensating the
Appellants for the right they have been deprived of. The
interests of justice persuade us to adopt this course of
action.
15
In Savitri Devi v. State of U.P. & Ors. , this Court held that:
“Thus, we have a scenario where, on the one
hand, invocation of urgency provisions under
Section 17 of the Act and dispensing with the
right to file objection under Section 5A of the Act,
is found to be illegal. On the other hand, we
have a situation where because of delay in
challenging these acquisitions by the land
15
(2015) 7 SCC 21.
39
owners, developments have taken in these
villages and in most of the cases, third party
rights have been created. Faced with this
situation, the High Court going by the spirit
behind the judgment of this Court in Bondu
Ramaswamy and Others (supra) came out with
the solution which is equitable to both sides. We
are, thus, of the view that the High Court
considered the ground realities of the matter and
arrived at a more practical and workable
solution by adequately compensating the land
owners in the form of compensation as well as
allotment of developed Abadi land at a higher
rate i.e. 10% of the land acquired of each of the
land owners against the eligibility and to the
policy to the extent of 5% and 6% of Noida and
Greater Noida land respectively.”
(emphasis supplied)
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.
13. With respect to the remaining 125 kms stretch of land, the
landowners were satisfied with the amount awarded, and
have not approached this Court.
Under these circumstances, despite our finding that the
Respondents have breached the mandatory provisions of the
40
Act, we do not think this is a fit case to set aside the entire
acquisition proceedings.
The relief granted in the present case is confined to the
Appellants herein, and would not become a precedent for
other landowners who have not challenged the acquisition
proceedings before this Court.
The Civil Appeals are allowed in the aforesaid terms. All
pending Applications, if any, are accordingly disposed of.
Ordered accordingly.
.......................................J.
(ABHAY MANOHAR SAPRE)
...…...............………………J.
(INDU MALHOTRA)
New Delhi;
August 13, 2019.
41