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2014 DIGILAW 2730 (ALL)

JAGDISH SINGH v. UNION OF INDIA

2014-09-05

A.P.SAHI, VIVEK KUMAR BIRLA

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Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Vivek Kumar Birla,J. Heard Sri Anurag Khanna learned counsel for the petitioners. This writ petition has been filed questioning the determination of compensation under the National Highways Act, 1956 on the ground that the petitioners are entitled to the benefits under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The petition was entertained and the following order was passed on? 26.5.2014. Hon'ble Vineet Saran,J. Hon'ble Naheed Ara Moonis,J. By means of this writ petition, the petitioners are not challenging the acquisition of land under the provisions of the National Highways Act, 1956. They are only aggrieved by the compensation which is being given to them as according to the petitioners they would be entitled to the benefit of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for which the learned counsel for the petitioners relies on Sub-section (3) of Section 105 of the said Act. According to the petitioners the Central Government is obliged to issue notification covering the cases of acquisition of land which fall under the National Highways Act to be given the benefit of the Act of 2013. Let a counter affidavit be filed by the respondents. Sri Pranjal Mehrotra has put in appearance on behalf of respondent no. 1, Sri Mohammad Ali and Sri Devendra Kumar has accepted notice on behalf of the respondent no. 2 and the learned Standing Counsel for the respondents no. 3 and 4. They may file counter affidavit within a month. The petitioners shall have two weeks thereafter to file rejoinder affidavit. List immediately thereafter. It is clarified that the learned counsel for the petitioners has stated that the petitioners will not interfere in the construction of road and will not claim possession of the land which had been notified for acquisition which has already been deemed to have vested in the Central Government. Sri Anurag Khanna, learned counsel for the petitioners has also stated that the determination of compensation may be stayed until further orders of this Court as according to the petitioners once compensation is determined, re-determination of such compensation under the provisions of the Act of 2013 shall become meaningless. Sri Anurag Khanna, learned counsel for the petitioners has also stated that the determination of compensation may be stayed until further orders of this Court as according to the petitioners once compensation is determined, re-determination of such compensation under the provisions of the Act of 2013 shall become meaningless. He has further stated that the determination of compensation is for the benefit of the petitioners which the petitioners want to forego untill further order which may be passed by this Court. The said prayer appears to be reasonable. As such, we direct that the determination of compensation under the provisions of the National Highways Act, 1956 shall remain stayed. The names of S/Sri Pranjal Mehrotra, Mohammad Ali and Devendra Kumar shall be shown as counsel for the respondent when the case is listed next. Order Date :- 26.5.2014" It is thus clear that the petitioners are not questioning the acquisition or creating any obstruction in the construction of the Highway. Their only concern is the payment of compensation subject to the provisions of the 2013 Act. Section 105 and its sub-sections of the 2013 Act are extracted hereinunder:- "105. Provisions of this Act not to apply in certain cases or to apply with certain modifications.- (1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule. (2) Subject to sub-section (2) of section 106 the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule. (3) The Central Government shall, by notification, within one year form the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitatoin and resettlement as may be specified in the notification, as the case may be. (4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament." Sri Pranjal Mehrotra submits that as per sub-Section (1) of Section 105 extracted hereinabove, since the National Highways Act, 1956 forms part of the Fourth Schedule, the plea of the petitioners is unacceptable. On the other hand Sri Khanna submits that the statutory exemption is subject to sub-Section (3) thereof and the period of one year with effect from 1.1.2014 has not yet expired and the Central Government can by way of notification issue such directions as may be necessary for the purpose of award of compensation. Having considered the submissions raised, we find that the argument advanced on behalf of the petitioners clearly rests on the foundation that there is a possibility of any notification issued by the Central Government and the period of one year having not expired, the respondents cannot deny the benefit of the 2013 Act. We agree with the aforesaid submission to this extent that in the event, the Central Government issues a notification, the same will have a binding effect on the authorities under the National Highways Act, 1956 in view of the provisions of sub-Section (3) of Section 105 aforesaid that is optional as and when any such notification is issued. Consequently, the respondents shall proceed to determine the compensation after proceeding to consider facts relating to any such notification being issued by the Central Government and taking into account the objections raised by the petitioners in this behalf. It shall be open to the authority to proceed with their constructions as the petitioners themselves have clarified that they shall not hinder the constructions or create any obstruction in the possession of the land as noted in the order dated 26.5.2014. It shall be open to the authority to proceed with their constructions as the petitioners themselves have clarified that they shall not hinder the constructions or create any obstruction in the possession of the land as noted in the order dated 26.5.2014. The writ petition stands disposed of with the said directions. ——————