TMI Blog2019 (8) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... e land-owners. 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 pre determined disposition. In the present case, it is the admitted position that after the personal hearing took place on 30.07.2011, no decision was passed on the objections submitted by the land-owners, either allowing or disallowing their objections; nor was any communication sent to them - 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. 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 5-A 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 5 A of the 1894 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alhotra, Leave granted. 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. 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 land owners filed written Objections between 06.04.2011 and 07.04.2011 under Section 20D(1) of the Act before the Compete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 ₹ 50,000/ in each of the Special Civil Applications. 3.14. Aggrieved by the aforesaid Judgment, the Appellant Land owners 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 : 5.1. The Objections raised by the Appellants were not decided in accordance with the provisions of Section 20D(2) of the Act. The non compliance 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 land owners, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates Act, 1961(25 of 1961). (3) Any order made by the competent authority under sub section (2) shall be final. 20E. Declaration of acquisition (1) Where no objection under sub section (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 sub-section (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 sub section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (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 sub section (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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty 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 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 sub section (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 thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b section (3) of Section 20D states that an order passed by the Competent Authority under Section 20D (2) shall be final. iii) 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. 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 sub section (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) 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 Section 20A(1), the Notification shall cease to have any effect. vii) 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. 9.1. A reading of the aforesaid statutory provisions shows that the land owner or inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hand written note sent by the Competent Authority to the Chief Project Manager, Dedicated Freight Corridor Corporation of India L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution, the right to raise and file objections has been held to be akin to a fundamental right. Ibid. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627), this Court held that: 6. It is not in dispute that Section 5 A 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 decision making process must not commit any misdirection in law. It is also not in dispute that Section 5 A of the Act confers a valuable important right and having regard to the provisions contained in Article 300 A of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. In Laxmi Devi v. State of Bihar (2015) 10 SCC 241), this Court held that : 9. The importance of Section 5 A 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 putt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). (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 decision making 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview 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 decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi judicial 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 quasi judicial authority is not candid enough about his/her decision making 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 rubber stamp reasons is not to be equated with a valid decision making process. (m) It c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Similarly, in Shanti Sports Club v. Union of India (2009) 15 SCC 705), 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 name of the President or Governor, as the case may be, and are communicated to the affected persons. In Sethi Auto Service Station v. DDA, (2009) 1 SCC 180) 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 decision making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjay Krishan Kaul, (2011) 10 SCC 714; Kunwar Pal Singh v. State of U.P., (2007) 5 SCC 85. The provisions of an expropriatory legislation, which compulsorily deprives a person of his right to property without his consent, must be strictly construed. 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. The Railways Act, 1989 being an expropriatory legislation, its provisions have to be strictly construed. Indore Vikas Pradhikaran v. Pure Industrial Coke Chemicals Ltd., (2007) 8 SCC 705. 11.6. The Competent Authority being a quasi judicial 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 land owner, 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. This is in contradistinction with the provisions of the Land Acquisition Act, 1894. Section 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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