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2023 DIGILAW 397 (CHH)

Mulchand, S/o Bidesi v. State of Chhattisgarh

2023-08-10

RADHAKISHAN AGRAWAL, SANJAY K.AGRAWAL

body2023
ORDER : Sanjay K. Agrawal, J. 1. Since common question of fact and law is involved in both the writ appeals, they have been clubbed together, heard together and are being disposed of by this common order. 2. These two writ appeals are directed against the impugned common order dated 14-3-2022 passed by the learned Single Judge in W.P.(C)Nos.3018/2020 & 2995/2020, by which the writ petitions filed by the writ appellants herein have been disposed of granting liberty to them to avail the remedy under sub-section (6) of Section 20F of the Railways Act, 1989 (for short, ‘the Act of 1989’) by making separate representations before respondents No.2 & 3 and respondent No.5 on the point of amount of compensation determined and also on the point of their entitlement for benefits under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, ‘the Act of 2013’). 3. The aforesaid challenge has been made on the following factual backdrop: - 4. The writ petitioners’ lands were settled for acquisition under the provisions of the Act of 1989 and ultimately, award was passed on 14-2-2020 & 17-2-2020 with a delay of 20 days, however, the delay was condoned and thereafter, possession of subject land has been taken from them. The writ petitioners have filed writ petitions for setting aside the awards dated 14-2-2020 & 17-2-2020 and restore the possession of lands to them and in alternative, to grant relief of employment and benefit of the Second Schedule & the Third Schedule of the Act of 2013, which the learned Single Judge did not entertain and held that delay in passing the award has been rightly condoned by the competent authority and granted liberty to avail the remedy under subsection (6) of Section 20F of the Act of 1989 and to make separate representations before respondents No.2 & 3 and respondent No.5 claiming the amount of compensation and also regarding entitlement for benefits under the provisions of the Act of 2013, which is sought to be challenged in these writ appeals. 5. Mr. 5. Mr. T.K. Jha, learned counsel appearing for the writ appellants in both the writ appeals, would submit that the learned Single Judge is absolutely unjustified in holding that the first proviso to subsection (2) of Section 20F of the Act of 1989 has rightly been invoked by the Railway administration, as each day’s delay has not been condoned and finding has been recorded that due to unavoidable circumstances and for the reasons recorded in writing, the award has been passed after the period of one year from the date of publication of declaration and as such, the land acquisition proceeding has lapsed and further, the benefits arising out of the Act of 2013 i.e. the Second Schedule & the Third Schedule, ought to have been granted by the learned Single Judge, as such, the writ appeals deserve to be allowed. 6. Mr. Sudeep Verma, learned State Counsel, however, supports the impugned order as also the awards and submit that the awards have rightly been passed condoning the 20 days’ delay in passing the award and liberty has already reserved in favour of the writ petitioners/appellants herein to invoke the provision contained in sub-section (6) of Section 20F of the Act of 1989 and to file representations claiming relief of the Second Schedule & the Third Schedule of the Act of 2013 and also employment in lieu of acquisition, as such, the writ appeals deserve to be dismissed. 7. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection. 8. For sake of convenience, pleadings made in W.A.No.171/2022 arising out of W.P.(C)No.2995/2020 (Bhukhiabai and others v. State of Chhattisgarh and others) will be referred herein. 9. Admittedly, in the case of the present appellants, award was passed by the competent authority on 14-2-2020 and it has been recorded in paragraph 11 of the award that notification was published in the Official Gazette on 21-1-2019, whereas award has been passed on 14-2-2020, as such, there is delay of 20 days in passing the award. 9. Admittedly, in the case of the present appellants, award was passed by the competent authority on 14-2-2020 and it has been recorded in paragraph 11 of the award that notification was published in the Official Gazette on 21-1-2019, whereas award has been passed on 14-2-2020, as such, there is delay of 20 days in passing the award. The reason assigned for delay in passing the award recorded by the competent authority Collector is that on account of the intervening Vidhan Sabha, Lok Sabha and local elections, the award could not be passed within the period of one year from the date of publication as contemplated under Section 20F(2) of the Act of 1989. At this stage, it would be appropriate to notice Section 20(F)(2) and the proviso appended to it, which states as under: - “20F. Determination of amount payable at compensation.—(1) xxx xxx xxx (2) The competent authority shall make an award under this section within a period of one year from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that the competent authority may, after the expiry of the period of limitation, if he is satisfied that the delay has been caused due to unavoidable circumstances, and for the reasons to be recorded in writing, he may make the award within an extended period of six months: xxx xxx xxx” 10. A focused glance of sub-section (2) of Section 20F of the Act of 1989 and the proviso appended to it would show that one year period from the date of publication of declaration has been prescribed to the competent authority to pass the award and if no award is passed within that period, the entire proceedings for the acquisition of the land shall lapse. However, the proviso appended to sub-section (2) of Section 20F would show that it has been provided that the competent authority, if satisfied that the delay has been caused due to unavoidable circumstances, and for the reasons to be recorded in writing, may pass the award within an extended period of six months. 11. However, the proviso appended to sub-section (2) of Section 20F would show that it has been provided that the competent authority, if satisfied that the delay has been caused due to unavoidable circumstances, and for the reasons to be recorded in writing, may pass the award within an extended period of six months. 11. Proviso appended to sub-section (2) of Section 20F of the Act of 1989 was considered by the Supreme Court in the matter of Dedicated Freight Corridor Corporation of India v. Subodh Singh and others, 2011 AIR SCW 2252 and it has been held that in view of the inconsistencies and ambiguities in Section 20F of the Act of 1989, it becomes necessary to read the provisions of the section harmoniously and laid down the effect of such harmonious reading by observing as under: - “10. In view of the inconsistencies and ambiguities in section 20F of the Act, (enumerated in para 12 below), it becomes necessary to read the provisions of the section harmoniously. The effect of such harmonious reading will be as under : (a) The award has to be made within one year from the date of publication of the declaration. (b) If the competent authority is satisfied that the award could not be made within a period of one year due to unavoidable circumstances, which are to be recorded in writing, he could make the award within eighteen months. The requirement regarding recording of reasons is not mandatory. (c) The acquisition proceedings will stand eclipsed at the end of one year from the date of publication if no award is made within one year. If no award is made within eighteen months, the proceedings for acquisitions would lapse. (d) If the award is made within eighteen months, the acquisition will emerge out of the eclipse and will not lapse. But additional compensation will become payable for the period beyond one year, as provided in the second proviso to section 20F(2). If the reasons are not recorded or if the reasons are not satisfactory, the additional compensation under the second proviso can be at a rate higher than the minimum of 5% per month stipulated in the second proviso to section 20F(2).” 12. If the reasons are not recorded or if the reasons are not satisfactory, the additional compensation under the second proviso can be at a rate higher than the minimum of 5% per month stipulated in the second proviso to section 20F(2).” 12. In the instant case, the reason assigned by the competent authority that award could not be passed within the period of one year from the date of publication of the notification in the Official Gazette due to election of Lok Sabha, Vidhan Sabha and local panchayat elections, which lead to delay of 20 days in passing the award, appears to be a valid reason for delay in passing the award and the satisfaction recorded by the competent authority Collector for delay in passing the award appears to be in accordance with the proviso to sub-section (2) of Section 20F of the Act of 1989, as nothing has been brought on record on behalf of the writ petitioners/appellants herein to demonstrate that such reason assigned by the competent authority is ex facie illegal and not borne out from the record except taking the ground the reason assigned is not acceptable. As such, the first proviso to sub-section (2) of Section 20F has rightly been invoked by the competent authority for which additional compensation has been paid as provided under the second proviso to sub-section (2) of Section 20F. We do not find any merit in the submission of learned counsel for the appellants that the first proviso to sub-section (2) of Section 20F of the Act of 1989 has illegally and wrongly been invoked by the competent authority. Accordingly, we reject the plea raised on behalf of the appellants herein. 13. The next contention raised is that the appellants herein are entitled for grant of employment and the benefits arising out of the Second Schedule & the Third Schedule of the Act of 2013 and for enhanced compensation, which the learned Single Judge has rightly answered and granted liberty to the appellants herein to invoke sub-section (6) of Section 20F of the Act of 1989. Sub sections (6) & (7) of Section 20F of the Act of 1989 state as under: - “(6) If the amount determined by the competent authority under sub-section (1) or as the case may be sub-section (3) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government in such manner as may be prescribed. (7) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.” 14. Sub-section (6) of Section 20F of the Act of 1989 clearly provides that if the amount determined by the competent authority under sub-section (1) or as the case may be sub-section (3) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government in such manner as may be prescribed, and sub-section (7) lays down that the provisions of the Arbitration and Conciliation Act, 1996 would apply to every arbitration. As such, the learned Single Judge has rightly directed the writ petitioners/appellants herein to invoke sub-section (6) of Section 20F of the Act of 1989 and also rightly directed the writ petitioners to make separate representations before respondents No.2 & 3 and respondent No.5 on the point of amount of compensation determined and also on the point of their entitlement for benefits under the provisions of the Act of 2013. For making representations and to avail the remedy under Section 20F(6) of the Act of 1989 as granted by the learned Single Judge, we hereby grant 45 days’ time from today to the writ petitioners/appellants herein. 15. With the aforesaid observations and directions, both the writ appeals stand dismissed leaving the parties to bear their own cost(s).