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2015 DIGILAW 678 (BOM)

Panjabrao v. State of Maharashtra

2015-03-09

A.M.BADAR, B.P.DHARMADHIKARI

body2015
Judgment A.M. Badar, J. 1] Heard. Rule. With consent of parties, heard finally. 2] By this petition, the petitioner is challenging notifications dated 19.3.2014 and 13.8.2014 issued by the Deputy Secretary to the Government of Maharashtra, Revenue and Forest Department and is praying for declaring them ultra-vires Section 26 read with First Schedule to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for sake of brevity “Act of 2013”) and for quashing those notifications, as well as notice dated 6.8.2012, issued under Section 9(3)(4) of the Land Acquisition Act, 1894 (For sake of brevity “Act of 1894”). The petitioner is further praying for directing respondents to calculate market value of his land proposed to be acquired for construction of water storage tank at village Patoda by applying multiplier of two. 3] Facts in brief, are thus :- Respondent/State Government has decided to construct a storage tank at village Patoda in Taluka Mantha of District Jalna. For construction of this storage tank, respondent Irrigation Department of the State proposed to acquire 200 Hectares of land from 204 agriculturists of village Patoda. It is case of the petitioner that village Patoda is situated in remote rural area of Mantha Taluka, which is not an urban area as there is a Gram Panchayat. Taluka Mantha is not governed by the Maharashtra Municipalities, Nagar Panchayats and Industrial Townships Act, 1966. Nearby town Partur is 30 Kms. away from Patoda, whereas, District place Jalna is situated at a distance of 75 Kms. from village Patoda. According to the petitioner, notification under Section 4 of the Act of 1894 was published in the official Gazette on 19.5.2011, notifying Gat No. 85 admeasuring 1.91 Hectares belonging to the petitioner for acquisition for the purpose of construction of the storage tank. This notification came to be followed by service of individual notice to the petitioner under Section 4(1) of the Act of 1894. Respondent State then issued a notification under Section 9(3)(4) of the Act of 1894 for acquiring 1.91 Hectares land from Gat No. 85 of village Patoda, owned by the petitioner. However, before passing the award under Section 11 of the Act of 1894, the Act of 2013 came into force w.e.f. 1.1.2014. Respondent State then issued a notification under Section 9(3)(4) of the Act of 1894 for acquiring 1.91 Hectares land from Gat No. 85 of village Patoda, owned by the petitioner. However, before passing the award under Section 11 of the Act of 1894, the Act of 2013 came into force w.e.f. 1.1.2014. Section 24 of the Act of 2013, has an effect of saving the land acquisition proceedings initiated under the Act of 1894 and Section 24(a) thereof, provides that where no award under Section 11 of the Act of 1894 has been made, then, all provisions of Act of 2013 relating to determination of compensation shall apply. 4] As per provision of Section 26(1) of the Act of 2013, the Collector has to determine the market value of the land proposed to be acquired by adopting the criteria prescribed therein. Sub-section (2) of Section 26 of the Act of 2013, provides that market value so calculated by the Collector as per the provisions of Sub-section (1) of Section 26 shall be multiplied by Factor to be specified in the First Schedule. It is appropriate to reproduce the provisions of clause (a) of sub-section (1) to Section 24, as well as subsection (2) of Section 26, for ready reference. “Sec. 24(1)............................................................ (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; (b) ...... (c) ......” “Sec. 26(1)............................................................ (a) ...... (b) ...... (c) ......” (2) The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule. ..............” 5] The First schedule to the Act of 2013 provides for package of compensation for land owners. This schedule provides for components which constitute the minimum compensation package to be given to those whose land is acquired. Clause (1) of First Schedule provides that a person whose land is acquired is required to be paid market value of land as determined under Section 26 of the Act of 2013. Clause (2) of First Schedule deals with the Factor by which the market value is to be multiplied in the case of rural areas. Clause (1) of First Schedule provides that a person whose land is acquired is required to be paid market value of land as determined under Section 26 of the Act of 2013. Clause (2) of First Schedule deals with the Factor by which the market value is to be multiplied in the case of rural areas. For ready reference, it is apposite to reproduce clause (2) of First Schedule which reads thus :- “THE FIRST SCHEDULE [See section 30(2)] COMPENSATION FOR LAND OWNERS The following components shall constitute the minimum compensation package to be given to those whose land is acquired and to tenants referred to in clause (c) of section 3 in a proportion to be decided by the appropriate Government. Serial number Component of compensation package in respect of land acquired under the Act Manner of determination of value Date of determination of value 1 2 3 4 1. - - - 2. Factor by which the market value is to be multiplied in the case of rural areas 1.00 (one) to 2.00 (Two) based on the distance of project from urban area, as may be notified by the appropriate Government 6] At this juncture, it is worthwhile to note that vide notification dated 27th August, 2014, the State Government in exercise of powers conferred by sub-section (1) and (2) of Section 109 of the Act of 2013, has framed the rules called, “The right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, Resettlement (Maharashtra Rules) 2014.” (For sake of brevity “The Maharashtra Rules of 2014”). For better understanding of the matter, it is necessary to quote Rule 2(k), (m), (p) and (v) of the said Rules, which defines the terms, “Local Bodies” “Municipal Corporation” “Rural Area” and “Urban Area”. They read thus :- “Rule 2(k) - “local bodies” means and includes rural local bodies and urban local authorities constituted or established under the respective Acts. Rule 2(m) - “Municipal Corporation” means a Municipal Corporation constituted or deemed to have been constituted under the provisions of the Mumbai Municipal Corporation Act (III of 1988. LIX of 1949) and the Maharashtra Municipal Corporation Act, respectively. Rule 2(p) - “rural area” means any area in the State except the areas covered by any urban local body or a cantonment board established or constituted under any law for the time being in force. LIX of 1949) and the Maharashtra Municipal Corporation Act, respectively. Rule 2(p) - “rural area” means any area in the State except the areas covered by any urban local body or a cantonment board established or constituted under any law for the time being in force. Rule 2(v) - “urban area” means any area in the State covered by any urban local body or a cantonment board established or constituted under any law for the time being in force.” 7] Undisputedly, Respondent No.5, Revenue and Forest Department of the State has issued a notification on 19.3.2014 (Exhibit D) in terms of clause (2) of the First Schedule to the Act of 2013, prescribing therein that when the land to be acquired is situated in the rural area, the market value of the land shall be multiplied by Factor 1 (one). Thereafter, during pendency of the instant petition, respondent No.5 Revenue and Forest Department of the State has issued another notification on 13.8.2014 (Exhibit E) in terms of clause (2) of the First Schedule by exercising the powers conferred by Section 26(2) of the Act of 2013 and thereby, amended the notification dated 19.3.2014 with effect from the date of issuance of this second notification dated 13.8.2014. The multiplier Factor 1(one) as provided by earlier notification dated 19.3.2014, then came to be substituted by multiplier Factor 1, 1.05 and 1.10 by this subsequent notification dated 13.8.2014. Relevant portion of this subsequent notification dated 13.8.2014 needs reproduction and reads thus :- “REVENUE AND FORESTS DEPARTMENT Madam Cama Road, Hutatma Rajguru Chowk, Mantralaya Mumbai 400 032, dated the 13th August, 2014. NOTIFICATION RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LANC ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 No.LQN12/2013/C.R.190/A2(Part 15) – Whereas, sub-section (1) of Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) (hereinafter referred to as “the said Act”), the Collector has to determine the market value of the land to be acquired; And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ Now, therefore, in exercise of the powers conferred under subsection (1) and (2) of Section 26 read with First Schedule of the Said Act, and of all other powers enabling it in this behalf, the Government of Maharashtra hereby amends the said Notification with effect from the 13th August, 2014 as follows: In the said Notification, in paragraph 5, for the words and figure “shall be multiplied by the factor 1 (one)” the following shall be substituted, namely : “the multiplier factor 1.00 (one) shall gradually rise in case of rural areas as e move away from urban location (from nearest Municipal Corporation area) to rural areas as follows: Sr. No. (1) Radial distance from urban area (from nearest Municipal Corporation area) (Km.) Multiplier factor in case of rural areas. 1 0-10 1.00 2 10-25 1.05 3 Above 25 1.10 By order and in the name of the Governor of Maharashtra, (S.K. GAWADE) Deputy Secretary to Government” 8] On the backdrop of this undisputed factual and legal position, Miss Talekar, learned counsel for the petitioner vehemently argued that respondent State has willfully refused the exercise the discretion conferred under Section 26(2) as well as clause (2) of the First Schedule to the Act of 2013, by earlier notifying the Factor as 1 and subsequently, by substituting the same by Factor 1, 1.05 and 1.10. By this act on the part of the respondent/State the desire of the Legislature as expressed in Section 26(2) and the First Schedule of the Act of 2013 is not implemented by the appropriate Government. 9] According to Miss Talekar, as a piece of subordinate legislation, impugned notifications ought to have been in conformity with the provisions of the Act of 2013 and by applying Factor 1, 1.05 and 1.10, as prescribed by the impugned notification, the petitioner would get very meager compensation. According to learned counsel, the purpose of providing multiplier ranging from 1 to 2 is frustrated by issuing the impugned notification by the respondent/State. 10] Miss Talekar, learned counsel for petitioner further argued that when the Legislature mandated determination of multiplier Factor ranging from 1 to 2, the same cannot be curtailed to 1.10 as done by respondent/State by issuing impugned notification dated 13.8.2014 (Exhibit E). 10] Miss Talekar, learned counsel for petitioner further argued that when the Legislature mandated determination of multiplier Factor ranging from 1 to 2, the same cannot be curtailed to 1.10 as done by respondent/State by issuing impugned notification dated 13.8.2014 (Exhibit E). According to him, depending upon the distance between the land from rural area proposed to be acquired and the urban area, the multiplier was required to be prescribed from the range given i.e. from 1 (One) to 2 (Two). Miss Talekar further argued that in terms of the provisions of Section 106 of the Act of 2013, even the Central Government cannot amend or alter any schedule to the Act of 2013 in order to reduce compensation or for violating the provisions of the Act of 2013 relating to compensation. In his submission, by issuing the impugned notification, respondent/State has virtually amended/altered clause (2) of the First Schedule to the Act of 2013, by prescribing factor by which the market value is to be multiplied in rural area. By relying on judgment of the Honourable Apex Court in M/s. Ujagar Prints and others Vs. Union of India reported in (1989)3 SCC 488 and M/s. Pharmacuiticals Ltd. Vs. State of Maharashtra reported in (1989) 4 SCC 376, Miss Talekar, learned counsel submitted that, the Schedule to the Act is part and parcel of the statute and State being an appropriate Government could not have prescribed maximum multiplier of 1.10 only. 11] Miss Talekar learned counsel further argued that Section 107 of the Act of 2013 empowers the State Legislature to enact any law, more beneficial than Act of 2013 in order to confer higher compensation than what is payable under the Act of 2013. As such, according to him, the State Legislature could have provided multiplier of more than 2 but could not have fixed the multiplier to 1.10. In submission of the learned counsel for the petitioner, the last Factor ought to have been 2 depending upon the distance from urban area of the project for which the land in Rural area is to be acquired. 12] Miss Talekar, learned Counsel, further argued that considering the legislative history, Statement of Objects and Reasons, as well as Preamble to the Act of 2013, impugned notifications are unsustainable. According to him, other States like Rajasthan, Uttar Pradesh, Punjab etc. 12] Miss Talekar, learned Counsel, further argued that considering the legislative history, Statement of Objects and Reasons, as well as Preamble to the Act of 2013, impugned notifications are unsustainable. According to him, other States like Rajasthan, Uttar Pradesh, Punjab etc. have introduced the Land Acquisition Bills in the line of Act of 2013 and provided for Factor ranging from 1.5 to 4.5 by which the market value is to be multiplied. He further argued that the State of Maharashtra has framed Rules under Section 108 and 109 of the Act of 2013 and as per the guidelines prescribed by respondent/State, multiplier of 2.01 is provided for land situated in rural area, whereas, multiplier of 1.01 is provided for the land from urban area. 13] In support of his contention, Miss Talekar, learned counsel for the petitioner has placed on record written submissions which are carefully perused and considered by us. 14] Respondents have opposed the petition by filing 3 affidavits in reply apart from written submissions. We have carefully perused those affidavits as well as written submissions. We have also heard Shri Apte, learned Senior counsel appearing for respondents alongwith Shri S.S. Tope, learned Incharge Government Pleader. 15] According to respondents, Act of 2013 gives discretion to the appropriate Government to provide for a Factor ranging from 1 to 2 and, therefore, impugned notifications are perfectly legal. Respondents further submitted that by increasing the Factor beyond one in rural areas, the land market would be distorted. Rural areas in the State are deficient in public infrastructure like road, electricity, irrigation and hospitals. By increase in factor multiplier beyond one, the budgetary costs of the projects will increase making the State incapable of providing much needed infrastructure in rural areas. 16] According to respondent State, the Government of Maharashtra gave suggestion to Government of India over the draft bill to the effect that multiplier of 3 in rural area, as proposed, will increase the land rehabilitation cost up to 6 times. This suggestion given by the Government of Maharashtra came to be accepted and instead of 3, multiplier factor of 1 to 2 is prescribed in the First Schedule to the Act of 2013. According to respondents, the area distance from the urban area (from nearest municipal area) is considered for fixing the multiplier factor. This suggestion given by the Government of Maharashtra came to be accepted and instead of 3, multiplier factor of 1 to 2 is prescribed in the First Schedule to the Act of 2013. According to respondents, the area distance from the urban area (from nearest municipal area) is considered for fixing the multiplier factor. Respondent/State has contended that there are about 1520 villages in between distance of 1 to 10 Kms. from the nearest municipal area. There are about 2593 villages in between 10 to 25 Kms. from the nearest Municipal Corporation area. Near about 20601 villages are more than 25 kms. away from the nearest Municipal Corporation area. With this, the State contended that if multiplier of 1 is applied then valuation of land acquisition project at village level would be Rs. 1608,95,35,511/- and if multiplier factor of 1 to 1.10 is applied, then, valuation of land acquisition project at award level would be at Rs. 7310,74,36,923/-. Respondent/State submitted that it has framed policy under Section 108 of the Act of 2013 and Rules under Section 109 of the said Act. Shri Apte, learned Senior Counsel, argued that if the multiplication factor is increased beyond the notification dated 13.8.2014, then the cost of undertaking rural infrastructure will increase. Budgetary costs of the state and investment in rural areas would get discouraged. 17] Shri Apte, learned Senior Counsel, further submitted that discretion provided to the appropriate Government by First Schedule is not unguided. Distance of the project from urban areas acts as guideline for exercising such discretion. Same is not curtailed by Section 108 of the Act of 2013. Shri Apte, learned Senior Counsel further argued that Section 106 of the Act of 2013 has no application to the case in hand as the State Government has not amended the First Schedule. 18] Shri Apte further argued that market value of the land is higher in Corporation area as compared to rural area. As one goes away from urban area, the market value of the land decreases and, therefore, the appropriate Government has provided for a gradual increase in multiplication factor for lands located away from the municipal Corporation area. The State Government being the appropriate Government has considered the topography of the State of Maharashtra and the notification dated 13.8.2014 came to be issued on logical and non-discretionary basis. The State Government being the appropriate Government has considered the topography of the State of Maharashtra and the notification dated 13.8.2014 came to be issued on logical and non-discretionary basis. 19] Shri Apte, learned Senior Counsel, argued that price fixation/factor fixation is a legislative activity or a legislative function. He contended that in case of “Union of India Vs. Cynamide India Ltd” referred in the matter of “Pallavi Refractories and others Vs. Singareni Collieries Co. Ltd. (2005) 5 SCC 227, it is held that the mechanics of price fixation are the concern of the Executive and it should be left to the Executive to do so. By placing reliance on G.B. Modi Vs. Ahmedabad Municipality reported in 1971(1) SCC 823 , Shri Apte, learned Senior counsel pointed out that as the upper and lower limits are prescribed by the Statute itself, the notifications cannot be faulted. 20] Shri Apte, further argued that at times, a statute may confer power on the executive to modify the statute through delegated legislation. He submitted that in Devi Das Vs. State Of Punjab, AIR 1967 SC 1895 , law empowering the Executive to levy Sales Tax at the rate not exceeding 2% was held valid. According to him, in the case in hand, discretion to fix Factor between 1% and 2% is insignificant and did not exceed permissible limits. He further argued that direction to adopt factor of 2 is not mandatory. As per submission of the learned senior counsel, there is no fundamental right to compel the State to bring forth a particular legislation or to exercise its discretion in a particular manner as held by the Honourable Supreme Court in the matter Kanhaiya Lal Sethia Vs. Union of India 1997(6) SCC 573 . According to him, policy matters of the State cannot be interfered in exercise of power of judicial review by the Court and, therefore, no mandamus can be issued to compel the Government to exercise discretion in a particular manner. 21] Shri Apte, learned Senior Counsel further argued that in judicial review, Court is not concerned with the economic policy and price fixation is not within the province of the Court. He placed reliance on Shri Sitaram Sugar Company Ltd. Vs. Union of India, 1990(3) SCC 223 . By placing reliance upon Bhavesh D. Parish Vs. 21] Shri Apte, learned Senior Counsel further argued that in judicial review, Court is not concerned with the economic policy and price fixation is not within the province of the Court. He placed reliance on Shri Sitaram Sugar Company Ltd. Vs. Union of India, 1990(3) SCC 223 . By placing reliance upon Bhavesh D. Parish Vs. Union of India, 2000(5) SCC 471 , it is submitted that unless the provision of legislation relating to economic reform is manifestly unjust or glaringly unconstitutional, the Court must show judicial restraint. According to the learned Senior counsel, the court cannot be sit as a court of appeal over the policy decision of the State. Reliance is placed on Tata Cellular vs. Union of India, 1994(6) SCC 651 , to demonstrate that administrative decision can be tested by application of Wednesbury's principle of reasonableness and quashing such decisions may impose heavy administrative burden and lead to increase in un-budgeted expenditure. Shri Apte relied on Peerless General Finance and Investment Company Vs. RBI, 1992(2) SCC 343 , to contend that the Court has to maintain delicate balance between the public interest and individual interest by taking into account the nature of individual right alleged to have been infringed. 22] Shri Apte, learned Senior Counsel further argued that judiciary cannot take over functions of the Legislature or Executive as held by the Honourable Apex Court in the matter of Common Cause vs. Union of India and others (2008) 5 SCC 511 . With these submissions, respondents are praying for dismissal of the petition. 23] We have carefully considered the rival submissions and perused the pleadings of the parties, documents placed on record by them, as well as ruling relied by them. 24] At the outset, it needs to mention that, notification dtd.19.3.2014 (Exh.D) issued by the State in terms of Sec.26(2) r/w First Schedule of the Act of 2013 provides for multiplier factor of 1 for the land situated at rural area. The subsequent such notification dtd. 13.8.2014 (Exh.E) substituted multiplier of 1 by 1, 1.05 and 1.10 as per distance of the land proposed to be acquired from urban area. This amendment of the multiplier factor is brought into force w.e.f. 13.8.2014 as seen from the notification dtd.13.8.2014. The subsequent such notification dtd. 13.8.2014 (Exh.E) substituted multiplier of 1 by 1, 1.05 and 1.10 as per distance of the land proposed to be acquired from urban area. This amendment of the multiplier factor is brought into force w.e.f. 13.8.2014 as seen from the notification dtd.13.8.2014. Let us therefore examine whether multiplier of one or up to 1.10 only can be prescribed for multiplying the market value of the land situated in rural area or whether the welfare statutes provides guideline for provision of multiplier of 2 for the land to be acquired from the remotest rural places and then for scaling it down in case of rural areas nearer to urban area. One will have to see whether respondent state has examined the distance of the land in rural areas from urban area as well as its remoteness from urban areas while fixing the multiplier factor by the impugned notification by following the guideline prescribed by the First Schedule to the Act of 2013. 25] Administrative action of the appropriate Government, in fixing and notifying the factor by which the market value is to be multiplied in case of rural area as 1 (one) vide notification dated 19-3-2014 (Exhibit "D") and subsequently substituting it by 1, 1.05 and 1.10, according to the distance of the project from urban area, vide notification dated 13-8-2014 (Exhibit "E") is impugned in the present petition. Judicial review of administrative decision can be undertaken when such decision is contrary to law or when relevant factors were not considered, when irrelevant factors were considered or when the decision was one which no reasonable person could have taken. The decision is to be tested on touchstone of illegality, procedural irregularity and irrationality. The learned Counsel for the petitioner relied on Vasudeo Singh and others Vs. union of India, reported in (2006) 12 SCC 753, which outlines the grounds available for judicial review of delegated legislation. Violation of constitutional provision or violation of enabling Act are grounds for reviewing such delegated legislation. Judicial review is amenable on three grounds-discrimination, irrelevant and extraneous consideration and malafides. Respondents have relied on decision in Kanhaiya Lal Sethia Vs. union of India, reported in (2006) 12 SCC 753, which outlines the grounds available for judicial review of delegated legislation. Violation of constitutional provision or violation of enabling Act are grounds for reviewing such delegated legislation. Judicial review is amenable on three grounds-discrimination, irrelevant and extraneous consideration and malafides. Respondents have relied on decision in Kanhaiya Lal Sethia Vs. Union of India, reported in 1997 (6) SCC 573 , wherein it is held that unless the policy framed by the State violates the mandate of the Constitution or any statutory provision, the courts should not exercise powers of judicial review to interfere in such policy. For demonstrating limitations for exercising judicial review of administrative decisions and policy, respondents relied on Sitaram Sugar Company Ltd. : U.P. State Sugar Corporation Limited Vs. Union of India, reported in 1990(3) SCC 223 ; Pallavi Refractories Vs. Singareni Colleries Company Ltd. etc., reported in 2005(2) SCC 227 ; and Tata Cellular Vs. Union of India, reported in 1994(6) SCC 651 . Observations of the Hon'ble Apex Court, in paragraphs 46, 47, 48 and 52, in the matter of Sitaram Sugar Company Ltd., (supra) can be quoted with advantage, at this juncture : “(46) Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution. As stated in E.P. Royappa Vs. State of Tamil Nadu "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch". Unguided and unrestricted power is affected by the vice of discrimination : Maneka Gandi Vs. Union of India. The principle of equality enshrined in Article 14 must guide every State action, whether it is be legislative, executive, or quasi-judicial : Ramana Dayaram Shetty Vs. International Airport Authority of India, Ajay Hasia Vs. Khalid Mujib Sehravardi and D.S. Nakara Vs. Union of India. Judgment A.M. Badar, J. 1] Heard. Rule. With consent of parties, heard finally. Union of India. The principle of equality enshrined in Article 14 must guide every State action, whether it is be legislative, executive, or quasi-judicial : Ramana Dayaram Shetty Vs. International Airport Authority of India, Ajay Hasia Vs. Khalid Mujib Sehravardi and D.S. Nakara Vs. Union of India. Judgment A.M. Badar, J. 1] Heard. Rule. With consent of parties, heard finally. 2] By this petition, the petitioner is challenging notifications dated 19.3.2014 and 13.8.2014 issued by the Deputy Secretary to the Government of Maharashtra, Revenue and Forest Department and is praying for declaring them ultra-vires Section 26 read with First Schedule to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for sake of brevity “Act of 2013”) and for quashing those notifications, as well as notice dated 6.8.2012, issued under Section 9(3)(4) of the Land Acquisition Act, 1894 (For sake of brevity “Act of 1894”). The petitioner is further praying for directing respondents to calculate market value of his land proposed to be acquired for construction of water storage tank at village Patoda by applying multiplier of two. 3] Facts in brief, are thus :- Respondent/State Government has decided to construct a storage tank at village Patoda in Taluka Mantha of District Jalna. For construction of this storage tank, respondent Irrigation Department of the State proposed to acquire 200 Hectares of land from 204 agriculturists of village Patoda. It is case of the petitioner that village Patoda is situated in remote rural area of Mantha Taluka, which is not an urban area as there is a Gram Panchayat. Taluka Mantha is not governed by the Maharashtra Municipalities, Nagar Panchayats and Industrial Townships Act, 1966. Nearby town Partur is 30 Kms. away from Patoda, whereas, District place Jalna is situated at a distance of 75 Kms. from village Patoda. According to the petitioner, notification under Section 4 of the Act of 1894 was published in the official Gazette on 19.5.2011, notifying Gat No. 85 admeasuring 1.91 Hectares belonging to the petitioner for acquisition for the purpose of construction of the storage tank. This notification came to be followed by service of individual notice to the petitioner under Section 4(1) of the Act of 1894. Respondent State then issued a notification under Section 9(3)(4) of the Act of 1894 for acquiring 1.91 Hectares land from Gat No. 85 of village Patoda, owned by the petitioner. This notification came to be followed by service of individual notice to the petitioner under Section 4(1) of the Act of 1894. Respondent State then issued a notification under Section 9(3)(4) of the Act of 1894 for acquiring 1.91 Hectares land from Gat No. 85 of village Patoda, owned by the petitioner. However, before passing the award under Section 11 of the Act of 1894, the Act of 2013 came into force w.e.f. 1.1.2014. Section 24 of the Act of 2013, has an effect of saving the land acquisition proceedings initiated under the Act of 1894 and Section 24(a) thereof, provides that where no award under Section 11 of the Act of 1894 has been made, then, all provisions of Act of 2013 relating to determination of compensation shall apply. 4] As per provision of Section 26(1) of the Act of 2013, the Collector has to determine the market value of the land proposed to be acquired by adopting the criteria prescribed therein. Sub-section (2) of Section 26 of the Act of 2013, provides that market value so calculated by the Collector as per the provisions of Sub-section (1) of Section 26 shall be multiplied by Factor to be specified in the First Schedule. It is appropriate to reproduce the provisions of clause (a) of sub-section (1) to Section 24, as well as subsection (2) of Section 26, for ready reference. “Sec. 24(1)............................................................ (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; (b) ...... (c) ......” “Sec. 26(1)............................................................ (a) ...... (b) ...... (c) ......” (2) The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule. ..............” 5] The First schedule to the Act of 2013 provides for package of compensation for land owners. This schedule provides for components which constitute the minimum compensation package to be given to those whose land is acquired. Clause (1) of First Schedule provides that a person whose land is acquired is required to be paid market value of land as determined under Section 26 of the Act of 2013. Clause (2) of First Schedule deals with the Factor by which the market value is to be multiplied in the case of rural areas. Clause (1) of First Schedule provides that a person whose land is acquired is required to be paid market value of land as determined under Section 26 of the Act of 2013. Clause (2) of First Schedule deals with the Factor by which the market value is to be multiplied in the case of rural areas. For ready reference, it is apposite to reproduce clause (2) of First Schedule which reads thus :- “THE FIRST SCHEDULE [See section 30(2)] COMPENSATION FOR LAND OWNERS The following components shall constitute the minimum compensation package to be given to those whose land is acquired and to tenants referred to in clause (c) of section 3 in a proportion to be decided by the appropriate Government. Serial number Component of compensation package in respect of land acquired under the Act Manner of determination of value Date of determination of value 1 2 3 4 1. - - - 2. Factor by which the market value is to be multiplied in the case of rural areas 1.00 (one) to 2.00 (Two) based on the distance of project from urban area, as may be notified by the appropriate Government 6] At this juncture, it is worthwhile to note that vide notification dated 27th August, 2014, the State Government in exercise of powers conferred by sub-section (1) and (2) of Section 109 of the Act of 2013, has framed the rules called, “The right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, Resettlement (Maharashtra Rules) 2014.” (For sake of brevity “The Maharashtra Rules of 2014”). For better understanding of the matter, it is necessary to quote Rule 2(k), (m), (p) and (v) of the said Rules, which defines the terms, “Local Bodies” “Municipal Corporation” “Rural Area” and “Urban Area”. They read thus :- “Rule 2(k) - “local bodies” means and includes rural local bodies and urban local authorities constituted or established under the respective Acts. Rule 2(m) - “Municipal Corporation” means a Municipal Corporation constituted or deemed to have been constituted under the provisions of the Mumbai Municipal Corporation Act (III of 1988. LIX of 1949) and the Maharashtra Municipal Corporation Act, respectively. Rule 2(p) - “rural area” means any area in the State except the areas covered by any urban local body or a cantonment board established or constituted under any law for the time being in force. LIX of 1949) and the Maharashtra Municipal Corporation Act, respectively. Rule 2(p) - “rural area” means any area in the State except the areas covered by any urban local body or a cantonment board established or constituted under any law for the time being in force. Rule 2(v) - “urban area” means any area in the State covered by any urban local body or a cantonment board established or constituted under any law for the time being in force.” 7] Undisputedly, Respondent No.5, Revenue and Forest Department of the State has issued a notification on 19.3.2014 (Exhibit D) in terms of clause (2) of the First Schedule to the Act of 2013, prescribing therein that when the land to be acquired is situated in the rural area, the market value of the land shall be multiplied by Factor 1 (one). Thereafter, during pendency of the instant petition, respondent No.5 Revenue and Forest Department of the State has issued another notification on 13.8.2014 (Exhibit E) in terms of clause (2) of the First Schedule by exercising the powers conferred by Section 26(2) of the Act of 2013 and thereby, amended the notification dated 19.3.2014 with effect from the date of issuance of this second notification dated 13.8.2014. The multiplier Factor 1(one) as provided by earlier notification dated 19.3.2014, then came to be substituted by multiplier Factor 1, 1.05 and 1.10 by this subsequent notification dated 13.8.2014. Relevant portion of this subsequent notification dated 13.8.2014 needs reproduction and reads thus :- “REVENUE AND FORESTS DEPARTMENT Madam Cama Road, Hutatma Rajguru Chowk, Mantralaya Mumbai 400 032, dated the 13th August, 2014. NOTIFICATION RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LANC ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 No.LQN12/2013/C.R.190/A2(Part 15) – Whereas, sub-section (1) of Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) (hereinafter referred to as “the said Act”), the Collector has to determine the market value of the land to be acquired; And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ And whereas, ............ Now, therefore, in exercise of the powers conferred under subsection (1) and (2) of Section 26 read with First Schedule of the Said Act, and of all other powers enabling it in this behalf, the Government of Maharashtra hereby amends the said Notification with effect from the 13th August, 2014 as follows: In the said Notification, in paragraph 5, for the words and figure “shall be multiplied by the factor 1 (one)” the following shall be substituted, namely : “the multiplier factor 1.00 (one) shall gradually rise in case of rural areas as e move away from urban location (from nearest Municipal Corporation area) to rural areas as follows: Sr. No. (1) Radial distance from urban area (from nearest Municipal Corporation area) (Km.) Multiplier factor in case of rural areas. 1 0-10 1.00 2 10-25 1.05 3 Above 25 1.10 By order and in the name of the Governor of Maharashtra, (S.K. GAWADE) Deputy Secretary to Government” 8] On the backdrop of this undisputed factual and legal position, Miss Talekar, learned counsel for the petitioner vehemently argued that respondent State has willfully refused the exercise the discretion conferred under Section 26(2) as well as clause (2) of the First Schedule to the Act of 2013, by earlier notifying the Factor as 1 and subsequently, by substituting the same by Factor 1, 1.05 and 1.10. By this act on the part of the respondent/State the desire of the Legislature as expressed in Section 26(2) and the First Schedule of the Act of 2013 is not implemented by the appropriate Government. 9] According to Miss Talekar, as a piece of subordinate legislation, impugned notifications ought to have been in conformity with the provisions of the Act of 2013 and by applying Factor 1, 1.05 and 1.10, as prescribed by the impugned notification, the petitioner would get very meager compensation. According to learned counsel, the purpose of providing multiplier ranging from 1 to 2 is frustrated by issuing the impugned notification by the respondent/State. 10] Miss Talekar, learned counsel for petitioner further argued that when the Legislature mandated determination of multiplier Factor ranging from 1 to 2, the same cannot be curtailed to 1.10 as done by respondent/State by issuing impugned notification dated 13.8.2014 (Exhibit E). 10] Miss Talekar, learned counsel for petitioner further argued that when the Legislature mandated determination of multiplier Factor ranging from 1 to 2, the same cannot be curtailed to 1.10 as done by respondent/State by issuing impugned notification dated 13.8.2014 (Exhibit E). According to him, depending upon the distance between the land from rural area proposed to be acquired and the urban area, the multiplier was required to be prescribed from the range given i.e. from 1 (One) to 2 (Two). Miss Talekar further argued that in terms of the provisions of Section 106 of the Act of 2013, even the Central Government cannot amend or alter any schedule to the Act of 2013 in order to reduce compensation or for violating the provisions of the Act of 2013 relating to compensation. In his submission, by issuing the impugned notification, respondent/State has virtually amended/altered clause (2) of the First Schedule to the Act of 2013, by prescribing factor by which the market value is to be multiplied in rural area. By relying on judgment of the Honourable Apex Court in M/s. Ujagar Prints and others Vs. Union of India reported in (1989)3 SCC 488 and M/s. Pharmacuiticals Ltd. Vs. State of Maharashtra reported in (1989) 4 SCC 376, Miss Talekar, learned counsel submitted that, the Schedule to the Act is part and parcel of the statute and State being an appropriate Government could not have prescribed maximum multiplier of 1.10 only. 11] Miss Talekar learned counsel further argued that Section 107 of the Act of 2013 empowers the State Legislature to enact any law, more beneficial than Act of 2013 in order to confer higher compensation than what is payable under the Act of 2013. As such, according to him, the State Legislature could have provided multiplier of more than 2 but could not have fixed the multiplier to 1.10. In submission of the learned counsel for the petitioner, the last Factor ought to have been 2 depending upon the distance from urban area of the project for which the land in Rural area is to be acquired. 12] Miss Talekar, learned Counsel, further argued that considering the legislative history, Statement of Objects and Reasons, as well as Preamble to the Act of 2013, impugned notifications are unsustainable. According to him, other States like Rajasthan, Uttar Pradesh, Punjab etc. 12] Miss Talekar, learned Counsel, further argued that considering the legislative history, Statement of Objects and Reasons, as well as Preamble to the Act of 2013, impugned notifications are unsustainable. According to him, other States like Rajasthan, Uttar Pradesh, Punjab etc. have introduced the Land Acquisition Bills in the line of Act of 2013 and provided for Factor ranging from 1.5 to 4.5 by which the market value is to be multiplied. He further argued that the State of Maharashtra has framed Rules under Section 108 and 109 of the Act of 2013 and as per the guidelines prescribed by respondent/State, multiplier of 2.01 is provided for land situated in rural area, whereas, multiplier of 1.01 is provided for the land from urban area. 13] In support of his contention, Miss Talekar, learned counsel for the petitioner has placed on record written submissions which are carefully perused and considered by us. 14] Respondents have opposed the petition by filing 3 affidavits in reply apart from written submissions. We have carefully perused those affidavits as well as written submissions. We have also heard Shri Apte, learned Senior counsel appearing for respondents alongwith Shri S.S. Tope, learned Incharge Government Pleader. 15] According to respondents, Act of 2013 gives discretion to the appropriate Government to provide for a Factor ranging from 1 to 2 and, therefore, impugned notifications are perfectly legal. Respondents further submitted that by increasing the Factor beyond one in rural areas, the land market would be distorted. Rural areas in the State are deficient in public infrastructure like road, electricity, irrigation and hospitals. By increase in factor multiplier beyond one, the budgetary costs of the projects will increase making the State incapable of providing much needed infrastructure in rural areas. 16] According to respondent State, the Government of Maharashtra gave suggestion to Government of India over the draft bill to the effect that multiplier of 3 in rural area, as proposed, will increase the land rehabilitation cost up to 6 times. This suggestion given by the Government of Maharashtra came to be accepted and instead of 3, multiplier factor of 1 to 2 is prescribed in the First Schedule to the Act of 2013. According to respondents, the area distance from the urban area (from nearest municipal area) is considered for fixing the multiplier factor. This suggestion given by the Government of Maharashtra came to be accepted and instead of 3, multiplier factor of 1 to 2 is prescribed in the First Schedule to the Act of 2013. According to respondents, the area distance from the urban area (from nearest municipal area) is considered for fixing the multiplier factor. Respondent/State has contended that there are about 1520 villages in between distance of 1 to 10 Kms. from the nearest municipal area. There are about 2593 villages in between 10 to 25 Kms. from the nearest Municipal Corporation area. Near about 20601 villages are more than 25 kms. away from the nearest Municipal Corporation area. With this, the State contended that if multiplier of 1 is applied then valuation of land acquisition project at village level would be Rs. 1608,95,35,511/- and if multiplier factor of 1 to 1.10 is applied, then, valuation of land acquisition project at award level would be at Rs. 7310,74,36,923/-. Respondent/State submitted that it has framed policy under Section 108 of the Act of 2013 and Rules under Section 109 of the said Act. Shri Apte, learned Senior Counsel, argued that if the multiplication factor is increased beyond the notification dated 13.8.2014, then the cost of undertaking rural infrastructure will increase. Budgetary costs of the state and investment in rural areas would get discouraged. 17] Shri Apte, learned Senior Counsel, further submitted that discretion provided to the appropriate Government by First Schedule is not unguided. Distance of the project from urban areas acts as guideline for exercising such discretion. Same is not curtailed by Section 108 of the Act of 2013. Shri Apte, learned Senior Counsel further argued that Section 106 of the Act of 2013 has no application to the case in hand as the State Government has not amended the First Schedule. 18] Shri Apte further argued that market value of the land is higher in Corporation area as compared to rural area. As one goes away from urban area, the market value of the land decreases and, therefore, the appropriate Government has provided for a gradual increase in multiplication factor for lands located away from the municipal Corporation area. The State Government being the appropriate Government has considered the topography of the State of Maharashtra and the notification dated 13.8.2014 came to be issued on logical and non-discretionary basis. The State Government being the appropriate Government has considered the topography of the State of Maharashtra and the notification dated 13.8.2014 came to be issued on logical and non-discretionary basis. 19] Shri Apte, learned Senior Counsel, argued that price fixation/factor fixation is a legislative activity or a legislative function. He contended that in case of “Union of India Vs. Cynamide India Ltd” referred in the matter of “Pallavi Refractories and others Vs. Singareni Collieries Co. Ltd. (2005) 5 SCC 227, it is held that the mechanics of price fixation are the concern of the Executive and it should be left to the Executive to do so. By placing reliance on G.B. Modi Vs. Ahmedabad Municipality reported in 1971(1) SCC 823 , Shri Apte, learned Senior counsel pointed out that as the upper and lower limits are prescribed by the Statute itself, the notifications cannot be faulted. 20] Shri Apte, further argued that at times, a statute may confer power on the executive to modify the statute through delegated legislation. He submitted that in Devi Das Vs. State Of Punjab, AIR 1967 SC 1895 , law empowering the Executive to levy Sales Tax at the rate not exceeding 2% was held valid. According to him, in the case in hand, discretion to fix Factor between 1% and 2% is insignificant and did not exceed permissible limits. He further argued that direction to adopt factor of 2 is not mandatory. As per submission of the learned senior counsel, there is no fundamental right to compel the State to bring forth a particular legislation or to exercise its discretion in a particular manner as held by the Honourable Supreme Court in the matter Kanhaiya Lal Sethia Vs. Union of India 1997(6) SCC 573 . According to him, policy matters of the State cannot be interfered in exercise of power of judicial review by the Court and, therefore, no mandamus can be issued to compel the Government to exercise discretion in a particular manner. 21] Shri Apte, learned Senior Counsel further argued that in judicial review, Court is not concerned with the economic policy and price fixation is not within the province of the Court. He placed reliance on Shri Sitaram Sugar Company Ltd. Vs. Union of India, 1990(3) SCC 223 . By placing reliance upon Bhavesh D. Parish Vs. 21] Shri Apte, learned Senior Counsel further argued that in judicial review, Court is not concerned with the economic policy and price fixation is not within the province of the Court. He placed reliance on Shri Sitaram Sugar Company Ltd. Vs. Union of India, 1990(3) SCC 223 . By placing reliance upon Bhavesh D. Parish Vs. Union of India, 2000(5) SCC 471 , it is submitted that unless the provision of legislation relating to economic reform is manifestly unjust or glaringly unconstitutional, the Court must show judicial restraint. According to the learned Senior counsel, the court cannot be sit as a court of appeal over the policy decision of the State. Reliance is placed on Tata Cellular vs. Union of India, 1994(6) SCC 651 , to demonstrate that administrative decision can be tested by application of Wednesbury's principle of reasonableness and quashing such decisions may impose heavy administrative burden and lead to increase in un-budgeted expenditure. Shri Apte relied on Peerless General Finance and Investment Company Vs. RBI, 1992(2) SCC 343 , to contend that the Court has to maintain delicate balance between the public interest and individual interest by taking into account the nature of individual right alleged to have been infringed. 22] Shri Apte, learned Senior Counsel further argued that judiciary cannot take over functions of the Legislature or Executive as held by the Honourable Apex Court in the matter of Common Cause vs. Union of India and others (2008) 5 SCC 511 . With these submissions, respondents are praying for dismissal of the petition. 23] We have carefully considered the rival submissions and perused the pleadings of the parties, documents placed on record by them, as well as ruling relied by them. 24] At the outset, it needs to mention that, notification dtd.19.3.2014 (Exh.D) issued by the State in terms of Sec.26(2) r/w First Schedule of the Act of 2013 provides for multiplier factor of 1 for the land situated at rural area. The subsequent such notification dtd. 13.8.2014 (Exh.E) substituted multiplier of 1 by 1, 1.05 and 1.10 as per distance of the land proposed to be acquired from urban area. This amendment of the multiplier factor is brought into force w.e.f. 13.8.2014 as seen from the notification dtd.13.8.2014. The subsequent such notification dtd. 13.8.2014 (Exh.E) substituted multiplier of 1 by 1, 1.05 and 1.10 as per distance of the land proposed to be acquired from urban area. This amendment of the multiplier factor is brought into force w.e.f. 13.8.2014 as seen from the notification dtd.13.8.2014. Let us therefore examine whether multiplier of one or up to 1.10 only can be prescribed for multiplying the market value of the land situated in rural area or whether the welfare statutes provides guideline for provision of multiplier of 2 for the land to be acquired from the remotest rural places and then for scaling it down in case of rural areas nearer to urban area. One will have to see whether respondent state has examined the distance of the land in rural areas from urban area as well as its remoteness from urban areas while fixing the multiplier factor by the impugned notification by following the guideline prescribed by the First Schedule to the Act of 2013. 25] Administrative action of the appropriate Government, in fixing and notifying the factor by which the market value is to be multiplied in case of rural area as 1 (one) vide notification dated 19-3-2014 (Exhibit "D") and subsequently substituting it by 1, 1.05 and 1.10, according to the distance of the project from urban area, vide notification dated 13-8-2014 (Exhibit "E") is impugned in the present petition. Judicial review of administrative decision can be undertaken when such decision is contrary to law or when relevant factors were not considered, when irrelevant factors were considered or when the decision was one which no reasonable person could have taken. The decision is to be tested on touchstone of illegality, procedural irregularity and irrationality. The learned Counsel for the petitioner relied on Vasudeo Singh and others Vs. union of India, reported in (2006) 12 SCC 753, which outlines the grounds available for judicial review of delegated legislation. Violation of constitutional provision or violation of enabling Act are grounds for reviewing such delegated legislation. Judicial review is amenable on three grounds-discrimination, irrelevant and extraneous consideration and malafides. Respondents have relied on decision in Kanhaiya Lal Sethia Vs. union of India, reported in (2006) 12 SCC 753, which outlines the grounds available for judicial review of delegated legislation. Violation of constitutional provision or violation of enabling Act are grounds for reviewing such delegated legislation. Judicial review is amenable on three grounds-discrimination, irrelevant and extraneous consideration and malafides. Respondents have relied on decision in Kanhaiya Lal Sethia Vs. Union of India, reported in 1997 (6) SCC 573 , wherein it is held that unless the policy framed by the State violates the mandate of the Constitution or any statutory provision, the courts should not exercise powers of judicial review to interfere in such policy. For demonstrating limitations for exercising judicial review of administrative decisions and policy, respondents relied on Sitaram Sugar Company Ltd. : U.P. State Sugar Corporation Limited Vs. Union of India, reported in 1990(3) SCC 223 ; Pallavi Refractories Vs. Singareni Colleries Company Ltd. etc., reported in 2005(2) SCC 227 ; and Tata Cellular Vs. Union of India, reported in 1994(6) SCC 651 . Observations of the Hon'ble Apex Court, in paragraphs 46, 47, 48 and 52, in the matter of Sitaram Sugar Company Ltd., (supra) can be quoted with advantage, at this juncture : “(46) Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution. As stated in E.P. Royappa Vs. State of Tamil Nadu "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch". Unguided and unrestricted power is affected by the vice of discrimination : Maneka Gandi Vs. Union of India. The principle of equality enshrined in Article 14 must guide every State action, whether it is be legislative, executive, or quasi-judicial : Ramana Dayaram Shetty Vs. International Airport Authority of India, Ajay Hasia Vs. Khalid Mujib Sehravardi and D.S. Nakara Vs. Union of India.