TaxTMI 
TaxTMI 
2019 (8) TMI 1463
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....e 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 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 da....
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....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 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 ....
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....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 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. I....
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....s 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 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 ....
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....hin 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 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 d....
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....ay 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 thereof to the competent authority or any person duly authorised by it in thi....
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....e objections by an order. c) Sub¬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 authori....
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....ed that so far as the averment regarding reply dated 05.09.2013 under RTI application is 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 hand&no....
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....ection 5¬A of the Land Acquisition Act, 1894 confers a valuable right on the land¬owners. Having regard to the provisions contained in Article 300¬A of the Constitution, 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 p....
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....of mind to the objections raised by the land¬owners. In the present case, there has been a complete dereliction of duty by the Competent Authority in passing a reasoned order on the objections raised by the Appellants. 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 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; ....
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....c 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 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. Fur....
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....nistrative power. (e) Reasons reassure that discretion has been exercised by the decision¬maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi¬judicial 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 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 judicia....
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....h 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. In Bachhittar Singh v. State of Punjab (AIR 1963 SC 395), a Constitution Bench held that merely writing something on the file does not amount to an order. For a file¬noting 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. 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) ....
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....n empty formality and a farcical exercise, if the order on the objections precedes the grant of personal hearing. This would be clearly contrary to the provisions of Section 20D(2) of the Act. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. Nazir Ahmad v. King Emperor, (1875) LR 1 Ch D 426 followed in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322; State of U.P. v. Singhara Singh, AIR 1964 SC 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. 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. T....
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....he larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action. In Savitri Devi v. State of U.P. & Ors., (2015) 7 SCC 21) 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 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 lan....