Bombay High Court
Roshanbi Aziz Motiwala Thr Poa Mr. ... vs The Union Of India Thr The Secretary ... on 25 October, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:42749-DB
WP.15282.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15282 OF 2022
Roshanbi Aziz Motiwala
Through POA Mr. Iliyas Aziz Motiwala ... Petitioner
Versus
1. The Union of India through
the Secretary, Ministry of Road Transport and
Highways & Ors. ...Respondents
WITH
WRIT PETITION NO. 15284 OF 2022
Chandrashekhar Basalingappa Barbade
Decd. through L.Rs. Vaibhav C. Barbade ... Petitioner
Versus
1. The Union of India through
the Secretary, Ministry of Road Transport and
Highways & Ors. ...Respondents
WITH
WRIT PETITION NO. 15283 OF 2022
Shantinagar Zopadpattidharak Sangh
Thru. its President & Ors. ... Petitioners
Versus
1. The Union of India through
the Secretary, Ministry of Road Transport and
Highways & Ors. ...Respondents
WITH
WRIT PETITION NO.12214 OF 2024
Suresh Baburao Madhekar
(since deceased) through L.Rs.
S.S. Madhekar ... Petitioners
Versus
1. The Competent Authority for NHAI and Special
Land Acquisition & Ors. ...Respondents
Digitally
signed by
AARTI
AARTI GAJANAN
GAJANAN
PALKAR
PALKAR
Date:
2024.10.25
WITH
16:11:13
+0530
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WRIT PETITION NO.12215 OF 2024
1. Balu Santu Allati & Ors. ... Petitioners
Versus
1. The Competent Authority for NHAI and Special
Land Acquisition & Anr. ...Respondents
WITH
WRIT PETITION NO. 1172 OF 2024
Narayan Sakharam Vishwasrao & Ors. ... Petitioners
Versus
1. The Competent Authority for NHAI and Special
Land Acquisition Officer No.13 & Ors. ....Respondents
Dr. Ramdas Sabban aw. Ms. Arundhati Sabban, Mr. Pravin Sabban, Mr.
Shrikant Kompelli, for Petitioners.
Mr. Kedar Dighe, Addl. G.P. a/w. Ms. P.N. Diwan, AGP for
State/Respondent No.2 in WP/12214/2024, WP/12215/2024,
WP/12284/2024 & for Respondent No.1 in WP/1172/2024.
Mr. Ashutosh Misra, for Respondent No.1-UOI in WP-15284-2022,
WP-15283-2022 and WP-15282-2022.
Ms. Riya Jariwal a/w. Mr. Adesh Jadhav i/b Mr. Sagar Ladda for
Respondent Nos. 1 & 3 in WP/12284/2024, WP/12215-2024, WP-
12214-2024, for Respondent No.2 in WP/1172-2024 for Respondent
Nos.2 & 4 in WP/15284/2022, WP/15283/2022 & WP/15282/2022.
CORAM : G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
RESERVED ON : SEPTEMBER 29, 2024
PRONOUNCED ON : OCTOBER 25, 2024
Page 2 of 18
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JUDGMENT:
(Per, Somasekhar Sundaresan J.)
1. Rule. Rule made returnable forthwith. Learned Counsel for
the Respondents waive service. By consent of the parties, heard finally.
2. This is a batch of Writ Petitions that involve a singular and
common question of law - whether, and how, the provisions of the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 ("2013 Act") would apply to
determination of compensation, provision of rehabilitation and
resettlement and making available infrastructure amenities in cases of
land acquisition under the National Highways Act, 1956 ("NH Act").
3. The case of the Petitioners is that while the law is clear that
the entitlements to rehabilitation and resettlement under the Second
Schedule of the 2013 Act would be available over and above the
monetary compensation under the First Schedule of the 2013 Act even
to cases of land acquisition under the NH Act, their grievance is that
their requests for entitlements under the Second Schedule have been
rejected in a mechanical manner, purporting to reply on a Manual of
Guidelines, instead of an objective application of the substantive
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provisions of the relevant schedules of the 2013 Act to the facts relating
to the Petitioners requests.
4. The case of the Petitioners is that the determination of
compensation under the First Schedule, the rehabilitation and
resettlement under the Second Schedule and provision of infrastructure
amenities under the Third Schedule of the 2013 Act would apply
entirely to cases of land acquisition under the NH Act. Consequently,
they submit, the Competent Authority under the NH Act has to apply his
mind consciously to the facts of each case of acquisition under the NH
Act and examine the circumstances of each project and determine the
entitlement under the schedules to the 2013 Act. At the heart of the
Petitioners' claim is a Notification issued by the Ministry of Road
Transport and Highways, Government of India bearing Reference No.
NH-11011/30/2015-LA dated December 28, 2017 ("2017
Notification"), which makes it clear that matters of land acquisition for
purposes of national highways are squarely covered by the 2013 Act.
5. Before delving into the contents of 2017 Notification, it
would be relevant to examine an Order dated August 28, 2015 titled
Right to Fair Compensation and Transparency in Land Acquisition,
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Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015
("2015 Order"), which is an important milestone in the journey of the
law governing the application of the 2013 Act to the acquisitions under
the NH Act.
6. A brief overview of the journey of the legislative intervention
in the form of the schedules of the 2013 Act into the operation of the
NH Act, would be in order. Section 105(1) of the 2013 Act provides
that the 2013 Act would not apply to the enactments relating to land
acquisition specified in the Fourth Schedule, subject however, to Section
105(3). The NH Act is one of the enactments listed in the Fourth
Schedule. Section 105(3) provides that within one year from the date
of commencement of the 2013 Act, the Central Government shall direct
that any of the provisions of the Act relevant to the first three Schedules
of the 2013 Act, being beneficial to the affected family, shall apply to
cases of land acquisition under the enactments listed in the Fourth
Schedule, with such exceptions and modifications as the direction may
contain, but without reducing the compensation or dilution of the
provisions of 2013 Act relating to compensation, rehabilitation and
resettlement.
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7. Meanwhile, the 2013 Act was amended by the RCTLARR
(Amendment) Ordinance 2014, ("First Ordinance") promulgated with
effect from January 1, 2015 extending the provisions of the 2013 Act in
relation to computation of compensation as per the First Schedule,
rehabilitation and resettlement as per the Second Schedule, and the
provision of infrastructure amenities as per the Third Schedule to the
enactments listed in the Fourth Schedule. The substance of the First
Ordinance was extended by two more ordinances promulgated in 2015.
Eventually, without Parliament having passed an amendment to the
2013 Act, the second extension in the form of the third ordinance was
scheduled to lapse on August 31, 2015. Such lapsing would have
resulted in an abrupt cessation of benefits of enhanced compensation,
rehabilitation and resettlement to land acquisition under the
enactments listed in the Fourth Schedule. Therefore, in exercise of
powers under Section 113 of the 2013 Act, which empowered the
Central Government to remove difficulties, the 2015 Order was passed.
Orders under Section 113 of the 2013 Act may contain directions
consistent with the 2013 Act that are necessary or expedient to remove
difficulties.
8. Consequently, the 2015 Order explicitly sought to address
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the consequences of the ordinance being scheduled to lapse, by
extending the beneficial advantage that would be available under the
2013 Act and to ensure uniformity of treatment to landowners across
legislation where land was being acquired. Consequently, with effect
from September 1, 2015, the 2015 Order explicitly provided that the
provisions of the First Schedule, Second Schedule and Third Schedule
would apply to all cases of land acquisition under the enactments
specified in the Fourth Schedule, thereby firmly bringing the NH Act
within the scope of the benefits that ought to be provided to landowners
who would lose their land in acquisition proceedings.
9. Lest there be any doubt about the actual impact of the 2015
Order and the ordinances that preceded it, the 2017 Notification also
squarely dealt with the subject. The following extracts, starting with
the very opening paragraph of the 2017 Notification are noteworthy:-
"I am directed to say that the land required for National Highway Projects is acquired under the
provisions contained in Section 3 of the National Highways (NH) Act, 1956. Pursuant to the
enactment of the RFCTLARR Act of 2013 and its coming into force with effect from 01.01.2014,
certain provisions of the 2013 Act became applicable to the other related Acts mentioned in the
Fourth Schedule, including the NH Act, 1956 with effect from 01.01.2015 in terms of Section 105(3)
of the RCTLARR Act, 2013.
4.3 It is clear from a reading of the above that requisite action in compliance of Section 105(3) was
taken within one year's time with the promulgation of Ordinance No.9 of 2014 dated 31.12.2014.
This position continued with the issuance of two Ordinances in 2015, which was thereafter followed
by the 'Removal of Difficulties Order" without any break in time. As such, operation of the
provisions of RFCLARR Act, 2013, which came into effect from 01.01.2014, has been given effect in
respect of the enactment specified in the Fourth Schedule (including the NH Act, 1956) with effect
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from 01.01.2015, in compliance of sub-section (3) of Section 105 of the RFCTLARR Act, 2013.
4.4. Following the notification of the aforesaid Ordinance, the Ministry of Road Transport &
Highways issued a letter dated 29.04.2015 whereby the select provisions of RFCTLARR Act, 2013
were made applicable to the NH Act, 1956 with effect from 01.01.2015. A conjoint reading of the
aforesaid shows that the Ordinance (Amendment) remained in force till 31 st August, 2015. 'Removal
of Difficulties Order' was issued by the Department of Land Resources on 28 th August, 2015, which
took effect from 01.09.2015. However, since the date of application of the selected relevant
provisions of the RFCTLARR Act, 2013 to the NH Act, 1956 was 01.01.2015 in terms of the
Ordinance (Amendment) No.9 of 2014, remains an unambiguous and accepted position that the
provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013, relating to the determination of compensation in accordance with the
First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and
infrastructure amenities in accordance with the Third Schedule have been made applicable to all
cases of land acquisition under the NH Act, 1956, i.e. the enactment specified at Sr.No.7 in the
Fourth Schedule to the RFCTLARR Act, with effect from 01.01.2015."
[Emphasis Supplied]
10. It will be seen from the plain reading of the foregoing that
even the 2017 Notification evidently acknowledges that the position
obtaining from the First Ordinance, came to be protected and has been
available right from that date. It further records that the said benefits
of the three Schedules to the 2013 Act would have lapsed on August 31,
2015, but on August 28, 2015, in exercise of the powers under Section
113 of the 2013 Act, the 2015 Order came to be passed keeping such
entitlements intact. The 2017 Notification essentially compiled the
various Office Memorandum, Circulars, Guidelines, Orders and
Clarifications in two Annexures. Stating that the entire issue was
examined afresh in consultation with the Learned Attorney General of
India, the Ministry of Road Transport & Highways issued
comprehensively revised guidelines in supersession of the various
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contents of the guidelines issued until then.
11. In this process, the 2017 Notification describes in significant
detail, the contents of each of the three ordinances which explicitly
made the subject matter of determining compensation, provision of
rehabilitation and resettlement and provision of infrastructural
amenities in accordance with the first three Schedules of the 2013 Act,
in the case of all land acquisition under the NH Act.
12. Various operational clarifications were set out in the 2017
Notification but they are not relevant for purposes of adjudicating this
batch of Petitions. The 2017 Notification also made clear that the
benefits flowing from the aforesaid three schedules are the subject
matter of the benefits that ought to flow to cases of land acquisition
under the NH Act and not the application of other provisions such as
Section 24 of the 2013 Act, which provides for lapse of acquisition
should compensation not be paid and possession not be taken. 1
13. Purely for convenience, in this judgment, the facts referred to
are taken from Writ Petition No.15282 of 2022 (Roshanbi Aziz
Motiwala Vs. Union of India & Ors .). In the facts of that case, the
The law on interpreting Section 24 of the 2013 Act was declared in the case of Indore Development
Authority V/s. Manoharlal & Ors., (2020) 8 SCC 129.
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preliminary acquisition notification under Section 3-A of the NH Act
was published on July 9, 2013 in respect of acquisition of land for
purposes of the Pune-Solapur National Highway No. 9. The Competent
Authority under the NH Act passed an Order under Section 3-G
determining the compensation payable for the acquisition vide orders
dated May 8, 2015 and July 15, 2017. The main order came to be
passed on May 8, 2015 while on July 15, 2017, a supplementary order
came to be passed. The Petitioners' primary claim is for rehabilitation
and resettlement benefits under the Second Schedule and infrastructure
amenities under the Third Schedule of the 2013 Act, in addition to the
compensation they have received under the First Schedule. They
submit that 26 project affected and displaced families have been
referred to in the schedule to the compensation order passed under
Section 3-G of the NH Act.
14. Towards this end, an application asking for benefits under
the Second Schedule of the 2013 Act came to be filed on June 26, 2019.
Such benefits not being given to the Petitioners, Writ Petition No.2637
of 2021 came to be filed before this Court and a Division Bench
directed, by an order dated September 16, 2021, the Competent
Authority under the NH Act to decide such application expeditiously
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and within a period of four months.
15. On March 23, 2022 the Competent Authority rejected the
application dated September 28, 2021 that had been made by the
Petitioners pursuant to this Court's order.
16. It is a challenge to such rejection of benefits by the
Competent Authority that forms subject matter of these Petitions. All
the other Petitions have had a similar journey with a variation in the
number of project affected persons and their families. All but two of the
petitions relate to the same National Highway No. 9, with variation in
the dates of the events described above. Writ Petition No. 12215 of
2024 and Writ Petition No. 1172 of 2024 relate to National Highway
No. 50 connecting Pune and Nashik. Such variations do not have a
bearing on the adjudication of the issues emerging from these Petitions.
17. It is seen from the record that the Competent Authority has
expressed a clear view that only payment of compensation for land
acquisition under the NH Act would be covered by the provisions of the
First Schedule of the 2013 Act. It has been ruled that there is no
element of interest payment as provided under the 2013 Act that would
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be applicable to acquisitions under the NH Act. Likewise, the
Competent Authority has ruled that a Manual of Guidelines on land
acquisition for national highways has been published and according to
the said guidelines, the family of the landowner would not be entitled
to any benefits as contemplated in the 2013 Act. So also, the
Competent Authority has explicitly ruled that there is no question of
rehabilitation being provided to the affected families of the landowners
in addition to the payment of compensation.
18. The Manual of Guidelines came to be published in December
2018. Such a manual itself purports to only play the role of an enabling
guide to officials involved in land acquisition for national highways.
The Manual of Guidelines itself points out that the document was
merely aimed at providing clarity on issues covered by the 2017
Notification. There is nothing in it that gives it the character of an
instrument of law that would somehow override or supersede or render
inapplicable the legal position obtaining from the 2013 Act read with
the 2015 Order issued under Section 113 of the 2013 Act, and the 2017
Notification.
19. In fact, in the preface scripted by the author of the Manual,
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Mr. Y.S. Malik, Secretary, Road Transport and Highways has stated the
following :-
"Land Acquisition constitutes the first basic requirement for capacity addition of an existing road
notified as a National Highway or development of a Green-field National Highway. The introduction
of RFCTLARR Act, 2013 and application of its select provisions (First, Second and Third Schedules)
with effect from 01.01.2015 for acquisition of land under the National Highways Act, 1956 has
added an altogether new dimension for compensation to the landowners.
As per the information gathered from the National Highways Authority of India (NHAI), the average
cost of land acquisition was about Rs. 80.00 Lakh per Hectare before 01.01.2015, which has now
gone up to about Rs. 3.60 crore per Hectare. Out of a total expenditure of Rs. 1,52,000 crore during
the period of last four years (April 2014 to March 2018), the NHAI has spent an amount of Rs.
81,000 crore on the Land Acquisition as against an expenditure of about Rs. 41,000 crore on the
Civil Works.
Introduction of an altogether new regime for determination of compensation for acquisition of land
under the RFCTLARR Act of 2013 and its application to the NH Act, 1956, led to a number of
ambiguities and lack of clarity in the initial stages. The sheer size and scale of expenditure on Land
Acquisition for construction and development of National Highways led to a lot of concerns.
Notification and application of Multiplication Factor, method of calculation of the total
compensation amount, and levy of Administrative Charges for LA for the National Highways by
about 13 states, all varying from state to state, emerged as another set of major concerns.
It was at this stage that the issues were identified through an in-depth analysis and a set of
Comprehensive Policy Guidelines were issued on the subject vide Ministry's letter dated 28.12.2017.
However, a number of issues have been identified requiring further clarity on the subject. Therefore,
need arose for addressing these related issues, with updates and legal opinions, which are being
addressed through this Manual of Guidelines for all concerned, be it the DPR Consultants, the
officers of MoRTH and its project implementing agencies (NHAI, NHIDCL, BRO and the State
PWDs), or the Competent Authorities appointed as such for undertaking the Land Acquisition for NH
projects. I have made an attempt to cover as much of the ground as possible till date. The need for its
further updates cannot be ruled out as we go along. I hope all concerned associated with the process
of Land Acquisition for the National Highways and associated purposes find it useful in undertaking
the process forward in a seamless manner."
[Emphasis Supplied]
20. The Manual indeed explains what displacement would mean
and what resettlement and rehabilitation would mean. In our opinion,
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it would be vital on the part of the Competent Authority to explicitly
deal with the relevant Schedules of the 2013 Act, apply them to the
facts of each individual case of acquisition, and state what element of
the rehabilitation and resettlement under the Second Schedule and
provision of infrastructure facilities under the Third Schedule would be
part of the entitlements due, and what part would not lead to any
entitlements. The approach would necessarily have to be that the
ingredients of the Second Schedule and the Third Schedule must be
applied to the facts of each case to then rule on what facets of
rehabilitation and resettlement would be attracted and what facets
would not be attracted, with detailed reasons.
21. From a plain reading of the orders impugned in these
Petitions, it is indeed evident that such an exercise has not been
undertaken. Specifically, portions of the Manual have been quoted in
mechanical application, without an articulation of how the benefits
flowing from the Second Schedule and the Third Schedule would, or
would not be available to the Petitioners. It is a matter of record that
the Petitioners have no grievance about the computation and payment
of compensation in terms of the First Schedule. The core grievance is
essentially about rehabilitation and resettlement benefits that the
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Petitioners seek to enforce as their entitlements under the Second
Schedule, over and above the compensation already paid to them.
22. Specifically, the Petitioners contend that they are indeed
displaced persons and are therefore entitled to provision of housing
owing to displacement under Item 1 of the Second Schedule; choice of
annuity or employment under Item 4 of the Second Schedule;
subsistence grant for affected families under Item 5 including a higher
grant for SC/ST; transportation cost for shifting of families and
belongings under Item 6; one time financial assistance towards cattle
shade or petty shop under Item 7; one-time grant for artisans and small
traders under Item 8; one-time resettlement allowance under Item 10;
and reimbursement of stamp duty and registration fees at actuals.
23. The footnote to the Second Schedule makes it abundantly
clear that such entitlements would be over and above the entitlement to
compensation as provided in the First Schedule. In our opinion, it is
necessary for such specific pleas to be specifically addressed by
reference to the relevant provision and ingredients of the said Second
Schedule and their application to the facts of each case. Such pleas
cannot be summarily disposed of by purported invocation of the
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Manual, without consideration of the legal provisions of the first three
Schedules to the 2013 Act.
24. As seen above, the author of the Manual has himself stated
that the Manual is not conclusive and in fact, further issuance of
guidelines may be necessitated. Such guidelines would only be
developed by experience gained from the grassroots. If the Manual
were to be treated as if it is a substitute for the 2013 Act, instead of
being an aid and guide to that law, there would be no further need for
further guidelines to be issued in future - something that the Manual's
author has recognised upfront.
25. Consequently, in our opinion, it would be incumbent on the
Competent Authorities involved in the acquisitions covered by these
Petitions, to consciously apply their mind to the facts of each case and
apply the provisions of the Second Schedule and the Third Schedule of
the 2013 Act to such facts, and adjudicate and rule on the benefits
being provided. A mechanical and generic reference to the Manual to
simply reject the representations of the Petitioners is neither in
consonance with the requirements of law, nor in line with the directions
issued by this Court when it sent the matter to the Competent
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Authorities asking them to deal with the representations and objections
of the Petitioners.
26. In the light of the above discussion, we are of the clear
opinion that the Petitioner's application for entitlement to rehabilitation
and resettlement over and above the monetary compensation are
required to be decided afresh. However, in so observing, we have not,
and do not intend to have, pronounced upon any elements of merits
and facts involved in any of these Petitions. All contentions on merits of
the case of all the parties are expressly kept open, with a direction to
the Competent Authority to appropriately adjudicate and rule upon
them.
27. Consequently, these Writ Petitions are finally disposed of
with following order:-
(a) The rejections of the objections and representations filed by the
respective Petitioners before the respective Competent
Authorities is hereby quashed and set aside, with a direction that
the representations made by the Petitioners, with particular
regard to the entitlements claimed under the Second Schedule of
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the 2013 Act, and entitlements, if any, under the Third Schedule
of the Act, shall be decided by the Competent Authorities by way
of reasoned orders;
(b) The Petitioners are given liberty to file with the relevant
Competent Authority, specific representations to demonstrate
their claimed entitlements under the Second Schedule and the
Third Schedule, within a period of two weeks from the date on
which this judgment and order is uploaded on this Court's
official website; and
(c) The Competent Authorities shall decide such representations as
expeditiously as possible, and make every endeavour to pass the
reasoned orders as directed, within a period of 12 weeks from
the receipt of the representations.
28. With the issuance of such directions, theses Writ Petitions are
disposed of in the aforesaid terms. Rule is made absolute in the
aforesaid terms. No costs.
[ SOMASEKHAR SUNDARESAN, J.] [ G. S. KULKARNI, J.]
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