TaxTMI 
TaxTMI 
TaxTMI 
2019 (8) TMI 1463
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....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 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 land¬owners 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 land¬owners were asked to remain present with necessary proofs at the time of personal hearing, the date of which would be intimated to them. 3.4. The Competent Authority vide ....
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....ty. 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 a....
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....ection 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 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. 5.5. It was submitted that even though the land¬owners 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....
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....ed 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 self¬contained code for the acquisition of land. 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. ....
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....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 said period of one year, the period during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 20A is stayed by an order of a court shall be excluded. (4) A declaration made by the Central Government under sub¬section (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 market¬value of the land,¬¬ (i) the minimum land value, if any, spec....
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....nding 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 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 sub¬section (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 ca....
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....lication 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 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 h....
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....lication 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 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 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. 11. Section 20D is a mandatory provision which confer....
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....fere 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 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 300¬A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300¬A of the Constitution....
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....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 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) In Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC 792), 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 recommendatio....
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....unds 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. ... 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....
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....hem. 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 cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision¬making not only makes the judges and decision¬makers 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 731¬37] .) (n) Since the requirement to record reasons emanates from the broad doctr....
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....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 the rights of the parties, only when it reaches the final decision¬making authority in the department, gets his approval and the final order is communicated 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....
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....4) 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 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 ....