Railway Corridor Virodh Kishan Sangh v. Union Of India, Gujarat High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
State of Gujarat v. Dashrathlal Fakirbhai Mukhi (1975)	Right to be heard beyond strict time limits for objections in land acquisition; principles of natural justice.	Supported petitioners' contention that objections filed beyond 30 days could be heard; however, this decision was later held per incuriam by a Full Bench.
Janata Dal v. H.S Chowdhary, AIR 1993 SC 892	Definition and principles of Public Interest Litigation (PIL).	Used to analyze maintainability of the petition as a PIL, emphasizing bona fide public interest and not private grievance.
Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16	Requirement of independent and unfettered judgment by statutory authorities; rule against abdication of power.	Applied to hold that the competent authority abdicated power by relying solely on acquiring body’s recommendations, invalidating the order.
Om Prakash v. State of Uttar Pradesh, (1998) 6 SCC 1	Importance of inquiry and hearing under Section 5-A of Land Acquisition Act; connection with fundamental rights.	Emphasized necessity of proper hearing and fair inquiry in land acquisition matters, supporting the need for effective hearing under Section 20(D).
Union of India v. Mukesh Hans, (2004) 8 SCC 14	Substantive right to object under Section 5-A of Land Acquisition Act; hearing is not a mere formality.	Supported the principle that objections must be given meaningful consideration, reinforcing petitioners’ argument.
Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627	Requirement of proper application of mind and consideration of relevant factors in public purpose determination.	Applied to stress that the competent authority must apply mind properly in deciding objections.
Mohindar Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405	Validity of statutory orders judged by reasons stated therein; cannot be supplemented by later affidavits.	Held that the competent authority’s order must be supported by reasons on record and cannot be justified by affidavits filed later.
Union of India v. Kushala Shetty, (2011) 12 SCC 69	Public purpose and acquisition under Railways Act; judicial interference limited.	Relied on by respondents to assert that acquisition for public purpose should not be lightly interfered with.
Girias Investment Pvt. Ltd. v. State of Karnataka, (2008) 7 SCC 53	Balancing individual property rights and public interest in acquisition.	Reiterated that acquisition for public benefit should not be quashed without extraordinary reasons.
Himmat Vallabhbhai Patel v. Chief Engineer (Project) Gujarat Energy Transmission, LPA No. 882 of 2011	Authority’s power to use private land for public purpose under Electricity Act and Indian Telegraph Act.	Supported respondents’ submission that suitability of land is a matter for authority, not court.
Cholan Roadways Ltd. v. V.G Thirugnanasambandam, (2005) 3 SCC 232	Judicial review of quasi-judicial decisions requires correct question and relevant considerations.	Applied to emphasize that competent authority must consider objections properly and not misdirect itself.
Anirudhsinh Karansinji Jadeja v. State of Gujarat, AIR 1995 SC 2390	Rule against abdication of power by statutory authorities.	Used to hold that competent authority’s delegation of decision-making to acquiring body was unlawful abdication.

CAV JUDGEMNT

(PER: HONOURABLE MR. JUSTICE J.B PARDIWALA)

1. By way of this petition, under Article 226 of the Constitution of India, in the nature of a Public Interest Litigation, the petitioner no. 1, a voluntary organization constituted by farmers affected by acquisition of land for the purpose of Dedicated freight Corridor Railway has redressed serious grievances as regards the manner, the mode and the method adopted by the authorities in so far as the proceedings of acquisition under the Railways Act, 1989, is concerned.

2. The case made out by the petitioners in this petition may be summarized as under:-

2.1 The ministry of railway pursuant to the announcement to establish eastern and western Dedicated freight Corridors linking the four metropolitan cities of Delhi, Mumbai, Chennai and Howra commonly known as Golden Quadrilateral in two diagonals initiated action to establish the Dedicated freight Corridors (for short “DFC”) and for the purpose of construction, operation and maintenance of DFC established the Dedicated freight Corridors Corporation of India Limited (For Short “DFCCIl”).

2.2 The Central Government with a view to acquire the land for this special project introduced an amendment in the Railway Act, 1989, by enacting the Railways (Amendment) Act, 2008, by which the special procedure came to be incorporated for the acquisition of the land by inserting Section 20(A) to 20(P) in the Railways Act. The amendment Act has come into force with effect from 31.01.2008

2.3 Initially by issuing different notifications under Section 20(A) of the Railways Act, the intention to acquire various parcels of agriculture land was declared and accordingly, the objections were invited against the acquisition. According to the original proposal, the DFC railway track was proposed to be laid down on an independent route and far away from the existing Ahmedabad-Delhi Railway Line as a result of which various parcels of agriculture lands were required to be acquired.

2.4 It is the case of the petitioners that notifications dated 10.02.2009, 13.02.2009 and 05.03.2009 were issued for acquisition of various parcels of land at Kalol, Kadi, Mesana and few other places situated in the Sanand Taluka. Not only notifications under Sections 20(A) of the Railways Act were issued but, thereafter, final notifications under Section 20(A) of the Railways Act dated 05.02.2010, 06.02.2010, 26.02.2010 and 05.03.2010 were also issued.

2.5 According to the petitioners, lands, which are proposed to be now acquired for which the present petition has been filed were not covered in the earlier notifications referred to above.

2.6 Pursuant to the notifications, which were issued way back in the Year-2010, referred to above, objections were raised by number of farmers and the whole issue had become political in nature, as a result of which a policy decision was taken by the Ministry of Railway to construct DFC line parallel to the existing Ahmedabad-Delhi Railway Line.

2.7 According to the petitioners, based on their information, it was proposed and decided to lay-down DFC line parallel to existing line from New Dehli-Ahmedabad Sabarmati Railway Station. It is their case that according to the policy decision if the DFC line is laid parallel to the existing line up to Sabarmati Railway Station then in that case the acquisition of various agriculture lands would not be required.

2.8 However, the respondent authorities instead of continuing to lay the DFC line parallel to the existing line upto Sabarmati Railway Station have changed the alignment from Village:Pansar and have diverted the alignment which has led to the necessity of acquiring fertile agriculture lands of 26 villages.

2.9 The petitioners, having learnt about the change of the alignment, objected to the diversion of DFC line from Village: Pansar. The petitioners and other farmers had personally approached the respondent nos. 4 to 6 and had requested them to lay the DFC line parallel to the existing line up to Sabarmati Railway Station according to the policy decision which was taken first in point of time in respect instead of laying through Pansar.

2.10 Despite the above, a notification under Section 20(A) of the Railways Act, 1989, came to be issued to acquire various parcels of land of 10 villages viz. Ramnagar, Piyaj, Borisana, Kalol, Pratappura, Chatral, Ola, Ishand, Vadaswami and Pansar of Kalol Taluka.

2.11 In response to the notification issued under Section 20(A) of the Railway Act, 1989, number of objections were submitted by various farmers individually and also through the village Panchayat and the Petitioner No. 1-Organization. It is also the case of the petitioners that the Union Minister for mines (Minister of State) vide its letter dated 05.09.2011, had recommended to the minister of Railways to consider the original proposal to lay the DFC Line parallel to the main line as approved by the then Railway Minister.

2.12 On 22.07.2011, a notification under Section 20(A) of the Railway Act, 1989, was published stating that the Central Government was satisfied that the land of the District Gandhinagar as described in the schedule was required for execution of special railway project Western Dedicated freight Corridors and accordingly, declared its intention to acquire the parcels of land as described in the schedule to the notification.

2.13 As provided under Section 20(D) of the Act, the objections had to be submitted within a period of 30 days from the date of publication of the notification under Sub-Section (1) of Section 20(A) and accordingly, the objections were lodged on 5th August, 2011 and 9 August, 2011, by various farmers individually as well as through the Petitioner No. 1 Organization.

2.14 On 7 September, 2011, the competent authority forwarded the objections to the acquiring body for the purpose of obtaining the remarks on the objections.

2.15 On 14.09.2011, a public notice was issued by the acquiring body of a public meeting to Study and understand the environment and social impact in so far as the implementation of the project was concerned. The public at large was accordingly, invited to give their opinion, suggestions and their response for planning and execution of the project.

2.16 On 26.09.2011 i.e on the date of the meeting, representation was handed over to the representative of the competent authority stating that extensive objections had been lodged earlier assigning cogent reasons as to why the parcels of land should not be acquired.

2.17 On 30.09.2011, the representations which were received from the farmers at the time of public consultation meeting held on 26.09.2011, were forwarded by the competent authority to the acquiring body. The acquiring body vide its letter dated 14.12.2011, communicated its remarks to the competent authority as regards the objections which were raised by the farmers against the notification issued under Section 20(A) of the Act. Thereafter, notice dated 09.12.2011, 02.01.2012 and 05.01.2012 was issued by the competent authority for hearing of the objections as raised by the farmers.

2.18 The competent authority gave hearing to the affected farmers on 17.01.2012, 19.01.2012 and 20.01.2012 During the course of the hearing of objections on 17, 19 and 20 January, 2012, the objections in writing were also handed over by the affected farmers to the competent authority.

2.19 On 25.01.2012, the competent authority forwarded the written submissions and objections of the farmers to the acquiring body requesting the acquiring body to read its point wise reply directly to the farmers.

2.20 The acquiring body vide letter dated 04.12.2012, informed the competent authority that according to the provisions of the Railways Act, only such objections which are lodged before the competent authority within 30 days of the Publication of Section 20(A) notification could be considered. The acquiring body also informed the competent authority that the issues regarding representations to the senior authorities were not relevant at the stage of deciding objections raised under Sections 20(D) of the Act and accordingly, asked the competent authority to reject the objections.

2.21 Finally the competent authority passed an order under Section 20(2)(d) of the Railways Act, 1989, overruling all the objections which were raised by the farmers for acquisition of the land for the purpose of Western Dedicated freight Corridors.

2.22 Feeling dissatisfied with the order passed by the competent authority in exercise of its power under Section 20(D) of the Act, the petitioners have preferred this petition challenging the legality, validity and propriety of the said order.

3. Stance of the respondent nos. 1 to 5:-

3.1 The petitioner no. 1 is a voluntary organization and is not a registered body incorporated or constituted by or under any law, and therefore, the petition at the instance and behest of such an unregistered voluntary organization is not maintainable and deserves to be dismissed.

3.2 The petitioner nos. 2, 3, 4 and 5 are the persons whose land is sought to be acquired by due process of law, and therefore, the grievances ventilated by such petitioners could not be termed as a Public Interest Litigation.

3.3 In view of the definition of the term Public Interest Litigation as defined under Rule 2(1) of the High Court of Gujarat (Practice and Procedure of PIL) Rules, 2010, the litigation undertaken by the petitioners for the purpose of redressing their personal grievance could not be considered as genuine or substantial.

3.4 The Indian Railways' quadrilateral linking the four metropolitan cities of Delhi, Mumbai, Chennai and Hawra, commonly known as the Golden Quadrilateral: and its two diagonals (Dehli-Chennai and Mumbai-Howarah), adding up to a total route length of 10, 122 k.m (16% of total IR route km) carries more than 55% of revenue earning freight traffic of IR. The existing trunk routes of Howrah-Delhi on the Eastern Corridor and Mumbai-Delhi on the Western Corridor are highly saturated, with line capacity utilization varying between 115% and 150%.

3.5 In future, the Indian Economy is expected to grow at an average of 8 to 10%. Transport requirement in the country, being primarily a deprived demand, is slated to increase by 10 to 12% in the medium and long term range. The highly saturated trunk routes of Indian Railways will not be able to cater for the future rail freight transportation demands of the economy. The surging power needs heavy coal movement, booming infrastructure construction and the growing international trade has led to the conception of the Dedicated Freight Corridors along the Eastern and Western Routes.

3.6 The seeds for the project were sown as early as in April, 2005, wherein the Hon'ble Prime Ministers of India and Japan made a joint declaration for feasibility and possible funding of the dedicated rail freight corridors. The Hon'ble Minister for Railways, in April, 2005, announced in the parliament the need and planning for the project. Immediately thereafter, RITES was entrusted with the feasibility study of both eastern and western corridors. In May 2005, the Committee on Infrastructure (COI) constituted a Task Force, chaired by Shri. Anwarul Huda, Member Planning Commission to prepare a concept paper on Delhi-Mumbai (Western) and Delhi-Hawrah (Eastern) dedicated freight corridor projects, and to suggest a new organizational structure for planning, financing, construction and operation of these corridors. RITES, in January, 2006, submitted the Feasibility Study Report of both the corridors to Ministry of Railways. Almost simultaneously, the cabinet approved the report of the Task Force of COI, which directed that a SPV should be set up to construct and operate the DFC. Cabinet Committee on Economic Affairs (CCEA) gave “in principle” approval to the Feasibility Study Report asking the MOR to go ahead with Preliminary Engineering-cum-Traffic Survey (PETS) for the two corridors, firm up the cost of the project and work out the financing options. In consonance with the recommendation of the Task Force of COI, a SPV, named “Dedicated Freight Corridors of India Limited (DFCCIL)” was incorporated under Companies Act on 30 October, 2006. Subsequently, RITES submitted the PETS Report to Ministry of Railways in October, 2007, based on which the project was approved.

3.7 Dedicated Freight Corridor Corporation of India (DFCCIL) is a Special Purpose Vehicle set up under the administrative control of Ministry of Railways to undertake planning and development, mobilization of financial resources and construction, maintenance and operation of the Dedicated Freight Corridors. DFCCIL was incorporated on 30 October, 2006, under the Indian Companies Act, 1956.

3.8 In the first phase, DFCILL would 1 be constructing two corridors-the Western DFC and Eastern DFC-spanning a total length of about 3300 route km. The Eastern Corridor, starting from Ludhiana in Punjab would pass through the State of Haryana, Uttar Pradesh, Bihar and terminate at Dankuni in West Bengal. The Western Corridor would traverse the distance from Dadri to Mumbai, passing through the State of Delhi, Haryana, Rajasthan, Gujarat and Maharashtra. The total estimated cost of the project is Rs. 77,630 Crores. The segregation of freight and passenger corridors would result in decongestion of existing Indian Railway lines due to transfer of freight trains of DFC. This will enable running of more passenger trains on existing railway routes.

3.9 As a dedicated agency to make the vision into reality the DFCCIL's mission is:-

• To build a corridor with appropriate technology that enables Indian railways to regain its market share of freight transport by creating additional capacity and guaranteeing efficient, reliable, safe and cheaper options for mobility to its customers.

• To set up Multimodal logistic parks along the DFC to provide complete transport solution to customers.

• To support the Government's initiatives toward ecological sustainability by encouraging users to adopt railways as the most environment friendly mode for their transport requirements.

• Reduce unit cost of transportation by speeding up freight train operations and higher productivity.

• Increase rail share in freight market by providing customised logistic services.

• Segregate freight infrastructure for focused approach on both passenger and freight business of railways.

• Create additional rail infrastructure to cater to high levels of transport demand.

• Introduction of time tabled freight services and guaranteed transit time.

3.10 The DFC project is the largest infrastructure project undertaken by Ministry of Railways since independence. Looking to the importance of the project to the infrastructure needs of the country, DFC project has been enlisted as Iconic/flagship project of India. The progress of DFC project is being monitored by:

• Cabinet Committee on Infrastructure (CCI) chaired by Hon'ble Prime Minister.

• High Power Committee under the Chairmanship of Principal Secretary to Prime Minister.

• Standing High Power Committee of Railway Board.

• Monthly progress report to Planning Commission by Ministry of Railways.

3.11 In addition to the efficiency improvement and other operational benefits, the DFCs would contribute to substantial energy savings and bring in significant reductions of Green House Gas (GHG) emissions. In a study carried out under the initiative of the United Nations Environment program (UNEP) shows that by Year-2046-47, the Western DFC project is expected to reduce annual CO2 emissions by nearly 81% as compared to the level emissions in the absence of the DFC. The study shows that in Year 2046-47, the annual CO2 emissions would be 12.332 million tons in without DFC scenario. In contrast to this, annual CO2 emissions in Year 2046-47 with Western DFC scenario would be 2.33 million tons.

3.12 The DFCCIL is governed by various international conventions. One of that international practice is FIDIC conditions which stipulates the standards of international contracting. In addition to above, the DFCCIL is also adopting SHE (Safely, Health and Environment) Manual based on various international standards like the one “OSHA” Occupational Safety Hazards Administrations of U.S.A Further to it, United Nations Environment program has already conducted a detailed case study on Green Initiatives like reduction of CHGs.

3.13 The Western Dedicated Freight Corridor (WDFC) project covers distance of 1499 Km. of double line electric (2 × 25 KV) track from JNPT (Mumbai) to Dadri via Vadodara-Ahmedabad-Palanpur-Phulera-Rewari. In addition, a single line connection of 32 km. long from proposed Pirthala Junction Station (near Asaoti on Delhi-Mathura line) to Tughlakabad is also proposed to be provided. The Western DFC project is passing through states of Maharashtra, Gujarat, Rajasthan, NCR and Uttar Pradesh. The estimated cost of Western DFC project is Rs. 38,503 Crores. The Western DFC project is funded by Japan International Cooperation Agency (JICA). Based on the funding schedule, the western DFC Project has been divided into two phases; viz. Phase-I from Rewari to Vadodara (930 km.) and Phase-II from Dadri to Rewari and Vadodara to JNPT (569 km.). The target date for completion of Western DFC is March, 2017.

STATUS OF LAND ACQUISITION OF REWARI-VADODARA (PHASE-I) SECTION OF WESTERN DFC

Section Total scope Land acquired so far Length (in Area (In Ha) Length (In Area (in Ha) km)

Rewari 930.24 3607.74 792.66 3122.68

Vadodara

(Entire

Section)

Reweri - 794.55 3211.3 788.66 3074.64

Iqbalgarh and Wama) -

Vadodara (i.e

excluding

Wamaj -

Iqbalgarh

Wamaj - 13.95 396.44 4 48.04 Iqbalgarh

Wamaj - 13.95 82.29 Nil Nil

Pansar (10

Villages)

4. The land acquisition of Rewari-Vadodara (Phase-I) Section of Western Dedicated Freight Corridor Project as shown in the aforesaid Tabular form clearly states that the land of the said Dedicated Freight Corridor track is 930.24 kms. The land acquired for the said project is for a total length of 788.66 kms. in length and only 13.95 kms. length remains to be acquired i.e to say a length between Wamaj-Pansar covering 10 Villages and for that 13.95 kms. length of tract total area of the land covered under acquisition is only 82.29 hectares. Therefore, the said length of 13.95 kms. comprising in total area of 82.29 Hectares is in the form of a layer line where the acquisition of the land would not any manner cause any serious prejudice to the farmers of the said 10 villages whose total land under acquisition is 82.29 hectares.

5. The DFC alignment map would clearly show that the alignment has been kept parallel to the existing track, and that too of a thin layer. It is evident from the map of DFC alignment that the area in question has been maintained so as to avoid causing damage to larger section of society including immovable properties and the area under inhabitation, whereas the DFC alignment has been kept and maintained parallel to the existing track based on export's report.

6. The DFC in question is a larger infrastructure project undertaken by the Ministry of Railways since Independence and looking of the importance of the Project to Country's infrastructure development and to meet increasing transportation demand, DFC Project has been declared as iconic project by the Government of India. The land for special Railway Project Western DFC is being acquired by DFCCIL on behalf of Ministry of Railways under the provisions of Railways (Amendment) Act, 2008.

7. The granting of any relief to the petitioners would cause serious prejudice and would adversely affect the larger public interest, as stated hereinabove. The petition, therefore, deserves to be dismissed.

8. The petitioners have not produced any policy decision of the Railway Ministry, to suggest that it was decided to take the DFC alignment parallel with existing railway line upto the Sabarmati Railway Station, as alleged. The original DFC alignment was on Detour from Sanajali (Nr. Ankleshwar) to Iqbalgadh. The Ministry of Railway had directed DFCCIL to examine the feasibility of providing DFC alignment parallel to the existing railway line between Kalol-Siddhpur. A detailed survey was carried out and at the end of it, the DFC alignment was shifted from Detour running Parallel from Pansar (North of Kalol) to Iqabalgadh-North of Siddhpur-Palanpur, which has substantially reduced the acquisition of private agricultural land from about 1065 hectares to about 600 hectares. Since it was not possible to extend the parallel DFC alignment further it was shifted towards Kalol, Sabarmati and Ahmedabad for technical reason. The revised DFC Alignment from Iqbalgadh to Pansar-North of Kalol Station is connected with original Detour alignment which is through Baroda side at Vamaj connecting Detour line between Vamaj to Pansar. The Said revised DFC alignment between Kalol-Iqbalgadh has been approved by the Ministry of Railways vide its letter dated 16.05.2011

9. There is no change of alignment by the second respondent as alleged by the petitioners. The revised alignment between Kalol-Iqbalgadh has been approved by the Ministry of Railways. The objections raised and submitted consequence upon issuance of the notification under Section 20-A have been decided by the competent authority. So far as the representation which was submitted during the public consultation meeting held at Kalol on 26.09.2011 is concerned, the same had been forwarded by the competent authority vide his letter dated 30.09.2011 Thus, the grievance of the petitioners that the competent authority has exhibited his inability to decide the objections has no substance. Both things are different. Forwarding of representation submitted during public consultation meeting held at Kalol, by no stretch of imagination, could be said to constitute inability to decide the representation and/or objections as alleged. The competent authority after giving personal hearing to the objectors who had submitted their objection consequent upon the notification under Section 20-A within specified time limit were decided by the competent authority in accordance with the provisions contained therein. Thus, the due procedure prescribed and provided under the Railways (Amendment) Act, 2008, for acquisition has been followed and the land in question is sought to be acquired in accordance with the law in public interest. The petitioners have no case for invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

10. Stance of the respondent no. 6-Competent Authority and Special Land Acquisition Officer, Gandhinagar.

10.1 The Notification under Section 20-A was issued by the Central Government in the Official Gazette on 02.07.2011 and the same was published in the news papers on 22.07.2011, indicating that the said notification under Section 20-A was issued, whereby any person desirous to file their objections regarding the same could file objections within 30 days of such publication before the competent authority as prescribed under Section 20D(1) of the Act, 2008.

10.2 The time limit for filing objections commenced from 22.07.2011 and expired on 21.08.2011 The petitioners had filed their objections on 05.08.2011 and 09.08.2011 which forms the part of the record of the petition from Page No. 269 onwards. The objections as a part of inquiry were sent to all the authorities concerned calling for their remarks as prescribed by the Act. The petitioners, had once again given a representation to the Competent Authority on 26.09.2011 which was clearly after the expiry of the time period of 30 days as prescribed in the Act. The representation dated 26.09.2011 specifically stated that it was regarding the notice to all the Gram Panchayats, but did not say, that the same was pertaining to the objections according to Section 20D(1) of the Act and therefore, it was clear that it was merely a representation and not the objections, as the objections were already submitted by the petitioners on 05.08.2011 and 09.08.2011 On receipt of the representation from the petitioners, the competent authority vide communication dated 30.09.2011 had forwarded the same to the Chief Project Manger, DECCIL, Ahmedabad inter-alia, stating that needful be done so far as the representation dated 26.09.2011 was concerned. It is clear on plain reading of Section 20D(1) that the objections shall be submitted within 30 days of the publication of the item in newspapers which expired on 21.08.2011 before which the petitioner had already submitted their objections and same were considered by the competent authority. Therefore, any communication and representation made by the petitioner on 26.09.2011 was merely representation and not the objections as required under the Act and therefore the competent authority had forwarded the said representation to the Chief Project Manager, DFCCIL, Ahmedabad. Therefore, it could not be said that competent authority had abdicated its power in deciding the objections of the objectors.

11. SUBMISSIONS ON BEAHLF OF THE PETITIONERS:-

11.1 Mr. M.C Bhatt, the learned Senior Counsel appearing for the petitioners vehemently submitted that the action of the respondent-authorities to change the alignment from Village: Pansar instead of continuing to lay the DFC Line parallel to the existing line up to Sabarmati Railway Station is illegal, arbitrary, improper, unjust, unreasonable and contrary to the policy decision which was earlier taken by the highest level of the Ministry of Railways.

11.2 Mr. Bhatt, the learned Senior Counsel submitted that over and above the fact that the change of alignment from Village: Pansar is contrary to the policy decision, the competent authority failed to consider the objections of the farmers and thereby abdicated its power vested in him under Section 20(D) of the Act by mechanically passing the order on the recommendation of the acquiring body. According to Mr. Bhatt, the fact that the competent authority abducted its power is apparent from the communication dated 30.09.2011 by which the competent authority made clear its inability to decide the objections of the farmers on the ground that the same were too technical and thereby requested the officers of the Corporation to take the appropriate decision.

11.3 Mr. Bhatt, also submitted that the competent authority failed to objectively decide the objections relating to the change of alignment but, on the contrary, vide letter dated 30.09.2011, requested the Chief Project Manager of the Corporation to take appropriate decision on the representation of the farmers.

11.4 Mr. Bhatt, vehemently submitted that the hearing given to a affected person under Section 2(D) of the Act must be an effective one and not a mere formality. Section 20(D) of the Act confers a valuable important right, having regard to the provisions contained in Article 300-A of the Constitution of India which has been held to be akin to a fundamental right.

11.5 Mr. Bhatt, also submitted that the stance of the respondents that the objections were not liable to be as they are filed beyound the period of 30 days from the date of issuance of the notification under Section 20(A) of the Act could be termed as untenable in law and contrary to the principle of fair play and natural justice.

11.6 Mr. Bhatt, learned Senior Cousel, in support of his aforesaid contentions relied on a Division Bench decision of this High Court in case of State of Gujarat v. Dashrathlal Fakirbhai Mukhi, reported in 1975 (Guj) 63. In such circumstances, Mr. Bhatt, prayed to allow this petition.

12. SUMISSIONS ON BEHALF OF RESPONDENTS:-

12.1 Mr. P.S Champaneri, the learned Assistant Solicitor General of India appearing on behalf of the respondents submitted that the present petition in the nature of a Public Interest Litigation, is not maintainable as private interest of the petitioners is involved in the matter.

12.2 Mr. P.S Champaneri, the learned Assistant Solicitor General of India vehemently submitted that the suitability of the land sought to be acquired or used for any public purpose or the fixing of the alignment is not adjudged by the Court in exercise of power under Article 226 of the Constitution of India. According to Mr. P.S Champaneri, it is for the appropriate authority to decide as to which particular land or alignment would be more suitable for the public purpose in question.

12.3 Mr. P.S Champaneri, also submitted that the submissions on behalf of the petitioners as regards abdication of power at the end of the competent authority is without any merit. Mr. P.S Champaneri, also submitted that the interference at the end of this Court in the matters of such important public project should be in the rarest of rare cases and the present case is not the one falling in the category of rarest of rare case. According to Mr. Mr. P.S Champaneri, although the rights of a individual whose property is sought to be acquired must be scrupulously respected? but, at the same time, acquisition for the benefit of public at large should not be lightly quashed and extraordinary reasons must exist for doing so.

12.4 Mr. P.S Champaneri, in support of his contentions relied upon the following decisions:-

1. Union of India v. Kushala Shetty, reported in (2011) 12 SCC 69

2. Girias Investment Private Limited v. State of Karnataka, reported in (2008) 7 SCC 53.

3. Shri. Sanyojan Cooperative Housing Society v. Surajben, reported in AIR 1986 GUJARAT 118.

4. Division Bench decision of this Court rendered in the case of Himmat Vallabhbhai Patel v. Chief Engineer (Project) Gujarat Energy Transmission, in Letters Patent Appeal No. 882 of 2011 dated 01.07.2011

13. Having heard the learned counsel for the respective parties and having gone through the materials on record, in our opinion, the following questions fall for our consideration in this petition.

1. Whether the present petition in the form of a Public Interest Litigation (PIL) is maintainable or not?

2. Whether the competent authority vested with the powers to hear the objections of the affected persons under Section 20(D) of the Railways Act, 1989, could be said to have considered and decided the objections objectively?

3. Having regard to the materials on record could it be said that the competent authority under Section 20(D) abdicated its power while considering the objections and thereby, rendered the hearing given to the farmers a mere empty formality?.

13.1 We shall first deal with the question as regards the maintainability of this petition as according to Mr. P.S Champaneri, the learned Assistant Solicitor General of India, the petition in the present form is not maintainable.

Ordinarily, Court would allow a litigation in public interest if it is found:

i. That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

ii. That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

iii. That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

iv. That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;

v. That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

vi. That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

vii. That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

viii. Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

ix. That the person approaching the Court has come with clean hands, clean heart and clean objectives;

That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.

It is also the duty of the Court to ensure that the petitioner has not been setup by others and is nothing but a ‘name lender’.

In the well-known pronouncement of the Supreme Court in the case of the Janata Dal v. H.S Chowdhary, reported in AIR 1993 SC 892, the Supreme Court in detail has explained Public Interest Litigation-Its origin and meaning. In paragraphs 48, 49, 50 and 51, it has been observed as under:-

“48. The question, “what ‘PIL’ means and is?” has been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries, but also by eminent Judges, jurists, activist lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition. Basically the meaning of the words ‘Public Interest’ is defined in the Oxford English Dictionary, 2nd Edition, Vol. XII as “the common well being………also public welfare”.

49. In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), ‘public interest’ is defined thus:

“PUBLIC INTEREST (1) A matter of public or general interest “does not mean that which is interesting as gratifying curiosity or a love of information or-amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected”.

[per Cambell C.J, R. v. Bedfordshire, (1855) 24 LJQB 81 (84)].

50. In Black's Law Dictionary (Sixth Edition), ‘public interest’ is defined as follows:

Public Interest-Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national government………”

51. The expression ‘litigation’ means a legal action including all proceedings therein, initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ‘PIL’ means a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. There is a host of decisions explaining the expression ‘PIL’ in its wider connotation in the present day context in modern society, a few of which we will refer to in the appropriate part of this judgment.”

Applying the aforesaid tests to the facts of the present case, this Court owes a duty to consider as to whose cause the petitioner is promoting when a petition is filed to pursue a Public Interest Litigation? Whose fundamental or other legal rights, if any, have been infringed? Who is to be relieved against any wrong and injury caused to him for which he cannot come to this Court? These are some of the vital questions which are to be answered to test maintainability of any petition which purports to be in ‘Public Interest’ and for a ‘Public Cause’.

14. In the present case, the petitioner no. 1 is a voluntary organization constituted by a class of farmers who are likely to be affected by the acquisition of their parcels of lands for the purpose of Dedicated Freight Corridors Railway Project.

15. Petitioner Nos. 2, 3, 4 and 5 are individuals whose lands are also sought to be acquired for the said project. The materials on record indicates that the acquisition is going to be on a very large scale and huge parcels of land of individual farmers is going to be acquired for the project.

16. In such circumstances, it may not be within the means of each and every farmer, who is going to be affected to approach this Court. It appears that for the said reason they have taken the help of petitioner no. 1-a voluntary organization and the other petitioners have also joined in redressing the grievance as regards the mode, the manner and the method of acquisition.

17. We are very much conscious and mindful of the fact that although the rights of a individual whose property is sought to be acquired must be scrupulously respected, but at the same time the acquisition for the benefit of the public at large is not to be lightly quashed and extra-ordinary reasons must exist for doing so. Having regard to the materials on record, we are of the opinion that there are extra-ordinary reasons warranting our interference to a certain extent in the present case. What are those extra-ordinary reasons shall be assigned by us at a later stage as, we shall first answer the preliminary objection raised by Mr. P.S Champaneri, the as regards the maintainability of the Public Interest Litigation.

18. We may only say that to deprive a farmer of his land is nothing short of depriving him of his bread and butter although he may be compensated in terms of money. The land for any farmer is like his child and his soul would be in his land. It is trite that hearing given to a person must be an effective one and not a mere formality. As held by the Supreme Court in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, reported in (2005) 7 SCC 627 that formation of opinion as regards the public purpose as also suitability thereof must be preceded proper application of mind as regards consideration of relevant factors and rejection of irrelevant. The State in its decision-making process must not commit any misdirection in law which in the present case is writ large on the face of the record. It is also not in dispute that Section 20(D) of the Railways Act, 1989, confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution of India, it has been held to be akin to a fundamental right. When a fundamental right of a class of people like farmers in the present case is shown to have been infringed and by infringement of such a fundamental right of hundred of farmers if their precious land is going to be acquired although for a public project then in such circumstances, the Court must interfere and look into the matter.

19. Where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, and such a person is unable to approach the Court on account of his social or economically disadvantaged position then in such circumstances, some other persons can invoke assistance of the Court for the purpose of provide judicial redress to the person wrong or injured, so that the legal wrong or injury caused to such a person does not go unredressed & justice is done to him. There may be cases like the present one where a public authority may act in violation of a constitutional or statutory obligation or fails to carry-out such obligation, resulting in injury to a public interest. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, or it would be upon to the State or Public Authority to act with impunity beyound the scope of its power or in breach of a public duty owned by it. The Court cannot countenance such a situation where the observations of the law is left at the sweet will of the authority without any redress, if the law is contraband. Therefore, whenever a public wrong or a public injury is caused by an act or omission of the State or Public Authority which is contrary to the constitution or law, any member of the public acting bonafide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. Thus, in the circumstances, we hold that the objection raised on behalf of the respondents as regards the maintainability of this petition deserves to be over ruled. We accordingly hold that this petition in the nature of a public interest litigation is maintainable.

20. The second & the most important question which we need to answer is one with regard to the exercise of powers by the competent authority under Section 20(D) of the Railways Act, 1989. At this stage, it would be profitable to look into the few relevant provisions of the Railways Ac, 1989.

Section 2(7)(A) of the Act defines competent authority which reads as under:-

“competent authority” means any person authorized by the Central Government, by notification, to perform the functions of the competent authority for such area as may be specified in the notification.”

Chapter 4(A) as inserted by Act 11 of 2008 with effect from 31.01.2008 is with respect to land acquisition for a Special Railway Project.

20A. Power to acquire land, etc. - (1) Where the Central Government is satisfied that for a public purpose any land is required for execution of a special railway project, it may, by notification, declare its intention to acquire such land.

(2) Every notification under sub-section (1), shall give a brief description of the land and of the special railway project for which the land is intended to be acquired.

(3) The State Government or the Union territory, as the case may be, shall for the purposes of this section, provide the details of the land records to the competent authority, whenever required.

(4) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which shall be in a vernacular language.

20B. Power to enter for survey, etc. - On the issue of a notification under sub-section (1) of section 20A, it shall be lawful for any person, authorized by the competent authority in this behalf, to -

(a) make any inspection, survey, measurement, valuation or enquiry;

(b) take levels;

(d) set out boundaries and intended lines of work;

(e) mark such levels, boundaries and lines placing marks and cutting trenches; or

(f) do such other acts or things as may be considered necessary by the competent authority.

20C. Evaluation of damages during survey, measurement, etc. - The damages caused while carrying out works on land such as survey, digging or boring sub-soil, marking boundaries or cutting trenches or clearing away any standing crop, fence or forest or doing such other acts or things which may cause damages while acting under section 20B particularly relating to land which is excluded from acquisition proceeding, shall be evaluated and compensation shall be paid to the persons having interest in that land, within six months from the completion of the said works.

20D. Hearing of objections, etc. - (1) Any person interested in the land may, within a period of thirty days from the date of publication of the notification under sub-section (1) of section 20A, object to the acquisition of land for the purpose mentioned in that sub-section.

(2) Every objection under sub-section (1), shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.

Explanation. - For the purposes of this sub-section, “legal practitioner” has the same meaning as in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961)

(3) Any order made by the competent authority under sub-section (2) shall be final.

20E. Declaration of acquisition:- (1) Where no objection under subsection (1) of section 20D has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification, that the land should be acquired for the purpose mentioned in sub-section (1) of section 20A.

(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.

(3) Where in respect of any land, a notification has been published under sub-section (1) of section 20A for its acquisition, but no declaration under sub-section (1) of this section has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:

Provided that in computing the said period of one year, the period during which may action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 20A is stayed by an order of a court shall be excluded.

(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.”

21. In the present case, we are concerned with Section 20(D) of the Act. Section 20(D) is in two parts. The first part states that any person interested in the land may within a period of thirty days from the date of publication of the notification under sub-section (1) of Section 20-A, lodge objections to the acquisition of land and the Second part states that every objection under sub-section (1), shall be made to the competent authority in writing and the competent authority shall give the objector opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, either allow or disallow the objections.

22. Clause (3) of Section 20(D) states that the order made by the competent authority under subsection (2) shall be final. The importance of the order passed by the competent authority under Section 20(D) of the Act gets reflected from the provisions of Section 20(A) of the Act. On plain reading of Section 20(A), it is evident that on submission of the report by the competent authority and on receipt of such report, the Central Government shall declare by notification that the land should be acquired for the purpose mentioned in Sub-Section (1) of Section 20(A). Thus, it is very clear that the report which is prepared by the competent authority is final and based on such report, the Central Government will proceed to issue the notification. Once the report or order is passed by the competent authority under Section 20(D), there is no further scope of any inquiry as to whether report should be accepted or not? The notification of declaration of acquisition under Section 20(A) is based solely on the order passed under Section 20(D) of the Act. This is where Section 20(D) of the Act differs dehors from Section 5(A) of the Land Acquisition Act. There is a reason why we should look into the provisions of the Section 5(A) of the Land Acquisition Act, which is almost para-materia with Section 20(D) of the Railways Act accept on one very important aspect. Section 5(A) of the Land Acquisition Act reads as under:-

“5-A. Hearing of objections- (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, (within thirty days from the date of publication of the notification), object to the acquisition of the land or any land in the locality, as the case may be.

(2) Every objection under sub-section (1) shall be made to the Collector in writing and the Collector shall give the objector an opportunity of being heard (in person or by any person authorized by him in this behalf) or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, (either make a report in respect of the land which has been notified under Section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government). The decision of the (appropriate Government) on the objections shall be final.

(3) For the purposes of this Section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.“

23. A plain reading of Section 5(A) would suggest that the report of the Collector as regards the objections is not final but, such a report would be placed before the appropriate Government containing his recommendation or objections together with the record of the proceedings for the decisions of that Government. The decision of the appropriate government on the objections would be final. Thus, the report of the Collector under Section 5(A) is not binding to the appropriate Government and the appropriate Government may agree or may not agree with the report. So far as Section 20(D) of the Railways Act, 1989, is concerned, there is no scope to look into the legality or validity of the order passed under Section 20(D) at the end of the Central Government. Under Section 20(A) of the Act, the Central Government on receipt of report under Section 20(D) has to declare by notification the acquisition of the land without any further inquiry.

24. Thus, under Section 20(D) of the Act, the responsibility and the duty of the competent authority to hear and decide the objections is of a very high degree as report would be considered as final. In such circumstances, the competent authority owes a duty to give a meaningful hearing to the objectors and decide the same in accordance with law.

25. In the present case, we have noticed something very shocking and unusual. On 30.09.2011, the competent authority addressed a letter to the acquiring body informing that the farmers had oppossed the acquisition of land for the railway corridor project and since the issue was one of policy and very technical in nature, the decision could only be taken by the DFCC i.e the acquiring body. The sum and substance of the letter is that the competent authority was unable to consider and decide the objections as they were too technical in nature, and therefore, the acquiring body was requested to look into objections and do the needful and send an appropriate reply directly to the petitioners dealing with their objections. We would like to quote one of the paragraph of the letter dated 30.09.2011 in this regard.

“As detailed in the aforesaid representation dated 26.09.2011, the affected agriculturists have shown their opposition for acquisition of the land for railway corridor. And the affected agriculturists have also made general representation earlier by submitting application taking the railway corridor line parallel to the present railway line. This issue is regarding policy and technical type and since the decision can only be taken by the D.F.C.C in this respect, any proceedings of whatsoever nature are not required to be initiated from the office regarding the representation of the aforesaid applicants. Therefore, you are requested to do the needful as regards the representation of the affected agriculturists at your end, to send appropriate reply directly to Railway. Virodh Kisan Sangh and to intimate to this office

sd/-

Competent Officer

DFCC. SPL. Land Acquisition Officer,

Gandhinagar.”

26. Yet again while passing the order under Section 20(D)(2) of the Act, the competent authority solely relied on the remarks of the acquiring body wherein the acquiring body informed the competent authority that the objections be rejected considering the fact that acquisition of the land was in public interest. The competent authority has also made a mention in its order that the acquiring body i.e the DFCC had carried out the necessary scrutiny of the representations from the technical pointing of view and thereafter, had informed that the objections were not tenable and must be rejeceted. At this stage, once again we would like to quote some part of the impugned order dated 15.02.2012, passed by the competent authority under Section 20(D) of the Act.

“The hearing of the objections submitted as aforesaid, was fixed on 17.01.2012 During the hearing, the agriculturists have submitted written representations but no evidence in support of written representations was submitted, and after considering all the aforesaid representations, during the hearing, the agriculturists demanded for to cancel/drop the acquisition proceedings.

The representations made during the above hearing was sent to Chief Project Manager, DFCC, Ahmedabad, vide letter dated 25.01.2012 with a request to take action as per the rules on the representation and to directly give suitable reply to the farmers under advice this office.

The submissions for the objections, as detailed above, have been made wherein the representation regarding not acquiring the land is not acceptable as per law. The Acquiring Body D.F.C.C.I.L has informed regarding the aforesaid objections vide letter no. DFC/ADI/LAQ/GNC/01 dated 04.02.2012 that acquisition of the land for railway is made for the public interest. Therefore, the individual interest cannot stand against public interest. Thus, the objections raised cannot stand as per law. The compensation can be given as per the provisions of law. The exemption from the acquisition proceedings cannot be granted The acquiring body DFCC, carried out necessary scrutiny of the aforesaid representations from technical point of view. The design of project has been finalized following due process as per rules and after considering all the aspects of the project and importance of the project. Thus, the Acquiring Body DFCC has informed that the aforesaid objections are not acceptable as per the law and hence, the same must be rejected.

Thus, considering all the aforesaid aspects, and that the land is being acquired for public purpose of special railway project. Western Dedicated Freight Corridor, which is part of the development process of the country in the public interest Since the land is being acquired for the railway in public interest, exemption from the acquisition cannot be granted. Thus, considering all the aforesaid aspects, in exercise of the powers conferred under sub-section (2) of Section 20(D) of the Act. The order is hereby passed to reject all the aforesaid objections.”

27. Thus, it is apparent that the various objections raised by the farmers were not considered by the competent authority by his own application of mind, but the competent authority acted solely on the basis of communications at the end of the acquiring body. This is a case of abdication of power. According to Section 20(D) of the Act, it is the competent authority alone who is obliged to hear and consider the objections and thereafter, pass order either allowing or disallowing the objections. In the present case by any stretch of imagination, it could not be said that the competent authority applied its mind and considered the objections objectively without being influenced in any manner by the remarks or suggestions of the acquiring body.

28. In the case of Anirudhsinh Karansinji Jadeja v. State of Gujarat, reported in AIR 1995 SC 2390(1), the Supreme Court observed, in Para-12 and 13 as under:-

“12. Reference may be made in this connection to Commr. of Police v. Gordhandas Bhanji, 1952 SCR 135: (AIR 1952 SC 16) in which the action of Commissioner of Police in canceling the permission granted to the respondent for construction of cinema in a Greater Bombay at the behest of the State Government was not upheld, as the concerned rules had conferred this power on the Commissioner, because of which it was stated that the Commissioner was bound to bear his own independent and unfettered judgment and decide the matter for himself, instead of forwarding an order which another authority had purported to pass.

13. It has been stated by Wade and Forsythe in ‘Administrative Law’, 7 Edition at Pages 358 and 359 under the heading “SURRENDER, ABDICATION, DICTATION and Sub-heading “Power in the wrong hands” as below:-

“Closely akin to delegation, and scarcely distinguishable from it in some case, in any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the Courts in applying this principle that they condemn some administrative arrangements which must seen quite natural and proper to those who make them…”

“Ministers and their departments have several times fallen foul of the same, rule, no doubt equally to their surprise…”.

29. The Supreme Court in the case of Om Prakash v. State of Uttar Pradesh, reported in (1998) 6 SCC 1, while ex-plaining the importance of inquiry under Section 5(A) of the Land Acquisition Act, made the following observations:-

“21. Our attention was also invited by Shri Shanti Bhushan, learned Senior Counsel for the appellants to a decision of a two judge Bench of this Court in the case of State of Pujnab v. Gurdial Singh wherein Krishna Iyer, J. dealing with the question of exercise of emergency powers under Section 17 of the Act observed in Para-16 of the Report that save in real urgency where public interest did not brook even minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14 and 19, burke an inquiry under Section 17 of the Act. Thus, according to the aforesaid decision of this Court, inquiry under Section 5-A is not merely statutory but, also has a flavour of fundamental rights under Articles 14 and 19 of the Constitution though right to property has now no longer remained a fundamental right, at least observation regarding Article 14, vis-a-vis, Section 5-A of the Land Acquisition Act would remain apposite.”

The said decision has been cited with approval in the case of Union of India v. Krishan Lal Arneja, reported in (2004) 8 SCC 453.

30. In the case of Union of India v. Mukesh Hans, reported in (2004) 8 SCC 14, the Hon'ble Apex Court, in Para-35 has held that:-

“35. At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. The object and importance of Section 5-A inquiry was noticed by this Court in the case of Munshi Singh v. Union of India wherein this Court held thus:-

“7. Section 5-A embodied a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity or persuading the authorities concerned that acquisition or the property belonging to that person should not be made. The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A.

Such an opportunity of being heard is necessary to be granted with a view to show that the purpose for which the acquisition proceeding is sought to be made not a public purpose as also the suitability of land therefore.”

31. Even a judicial review on facts in certain situations like the present case may be available. In the case of Cholan Roadways Ltd. v. V.G Thirugnanasambandam, reported in (2005) 3 SCC 232, the Hon'ble Apex Court, in Para-34, has held that:-

“34. It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is ‘preponderance of Probability’ and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out”

32. In Hindustan Petroleum Corporation Limited (Supra), the Hon'ble Supreme Court while laying emphasizes on proper application of mind while considering and deciding the objections observed as under:-

“However, considerations of the objections by the owner of the land and acceptance of the recommendations by the government, it is trite, must precede a proper application of mind on the part of the Government. As and when a person aggrieved questions the decision-making process, the Court in order to satisfy itself as to whether one or more grounds for judicial review exist, may call for the records whereupon such records must be produced.”

33. Mr. P.S Champaneri, the learned Assistant Solicitor General of India appearing on behalf of the respondents tried to salvage the situation by relying on the affidavit in reply of the competent authority to explain as to how the objections were considered and dealt with.

34. It is now well settled that when the order is passed by the statutory authority, the same must be supported either by the reasons stated therein or on the grounds available on record. The statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records.

35. In this context, we may profitably refer to a decision of the Supreme Court, in case of Commissioner of Police v. Gordhandas Banji, reported in AIR 1952 SCR 135 in which the Apex Court held that:-

“We are clear that public orders, publicly made in exercise of a statutory authority cannot be constructed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be constructed objectively with reference to the language used in the order itself.”

36. In Mohindar Singh Gill v. Chief Election Commissioner, reported in (1978) 1 SCC 405, the Hon'ble Apex Court, in Para-8 has held that:-

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.”

37. Thus, having regard to the materials on record, we are convinced that the competent authority in the present case failed to apply its mind independently and was guided solely on the suggestions made by the competent authority body. We do not propose to say for a moment that while deciding the objections, the competent authority should not consider the remarks made by the acquiring body but, in the present case, the objections were conveniently forwarded to the acquiring body for their consideration as the competent authority had made itself very clear that he was not in a position to understand and appreciate the objections.

38. One of the submissions of Mr. M.C Bhatt is that there is no conceivable virtue or merit in affording a hearing within thirty days as prescribed in Act. According to Mr. Bhatt, there is no substance in the contention raised by the respondents that the objections could not have been tendered after the expiry of 3 0 days from the date of notification under Section 20(A) of the Act. According to Mr. Bhatt, the objections were tendered very much within the time period. The objections said to have been lodged after the period of 3 0 days as claimed by the respondents were not objections in substance but, was a representation handed over to the authority during the course of a public consultation meeting and the said representation reiterated the objections, which were earlier raised in terms of Section 20(D) of the Act. According to Mr. Bhatt, assuming for the moment that the objections were not lodged within 3 0 days as prescribed in the Act would not make any difference as no principle or policy underlies the selection of the period. In support of his submission, Mr. Bhatt, relied on two decisions (1) State of Gujarat v. Dashrathlal Fakirbhai Mukhi, reported in AIR 1975 GUJARAT 63 and (2) Sakunthala v. Governmnet of Tamilnadu, reported in AIR 1998 MADRAS 256.

39. In the State of Gujarat (Supra), the Division Bench of this Court was dealing with a matter under the Land Acquisition Act. The issue before the Division Bench was whether a party was entitled to be heard as of right in respect of objections filed after the period of 30 days and if yes, then in when and what circumstances. The Division Bench answered the issue holding that the provision enabling the party whose lands are placed under acquisition to lodge objections is designed for the benefit of such a party and that the essence of the matter was that an opportunity was afforded to them before a decision is taken, and before the notification under Section 6 of the Ac would be issued. The Division Bench proceeded to hold that there was no conceivable virtue or merit in affording a hearing “within” 30 days. It held that it was not as if the period of thirty days was of mystical significance and surrounded by some magic halo. At this stage, we may quote the relevant portion of the reasonings adopted by the Division Bench.

“The party whose lands are placed under acquisition it is true, may not have an unrestricted right to lodge objections beyond the time limit of 30 days embodied in Section 5-A. But that time limit operates as a limitation on the right of the party and not as a limitation on the power of the Collector to hear the objections. Surely, the party whose lands are under acquisition cannot question the power of the Collector to hear the objections on any conceivable rational ground notwithstanding the fact that they have not lodged any such objections? Surely a party cannot be reasonably expected to object to his being dealt with fairly and is being afforded an opportunity to show cause against the proposed acquisiton notwithstanding the expiry of the dead line for filing objections? Even if the rules had not provided for extension of the time limit, under no principle of law, could it have been said that the Collector acted in violation of principles of fair play in affording him such an opportunity. All that the Collector does by extending the time limit of 30 days is to pay homage to the principles of natural justice and no more. He does a good turn to the land owner, not an evil act. Even if the rules are silent, the Court usually read into the relevant provison the principle of fair play and natural justice and insist on compliance with such principles notwithstanding the fact that there is no positive command by the legislature. Is it note, therefore, futile (it certainly is) to canvass that the Collector has no legal jurisdiction or competence to hear the person whose land is proposed to be acquired merely because the time limit for lodging such objections has expired?”

40. In Sankunthala (Supra), the learned Single Judge of the Madras High Court, P. Sathasivam, J. (as his then was) dealt with the same issue and relied upon the Division Bench decision of this High Court referred to above.

41. In our opinion, this issue of limitation of 30 days does not arise in the facts of the present case as discussed above, however, we may only state that the decision relied upon by Mr. Bhatt, in the case of State of Gujarat (Supra) was held to be per-incuriam by a Full Bench decision of this High Court in the case of Shri. Sanyojan Co-operative Housing Socieyt v. Surajben, reported in AIR 1986 GUJARAT 118, we may quote the relevant portion of the judgment declaring Dashrathlal's Case as per-incuriam:-

“With greatest respect to the learned Judges who decided the case in (1975) 16 Guj LR 137: (AIR 1975 Guj 63), we must say that the decision rendered by them is itself per incuriam for the following reasons:- (i) The learned judges have not noticed the express language of section 5A(1) of the Act which gives a statutory ceiling of 30 days for lodging objections and in not noticing that this ceiling of 30 days time is not for deciding objections; (ii) The learned Judges have completely missed to consider the scope and ambit of section 55 of the Act which provides that any rule framed by appropriate Government for guidance of the authorities under the Act has to be consistent with the Act. If any statutory rule tries to extent the period of limitation for filing objections as envisaged by the Legislature by enacting section 5A (I), the rule would be liable to be struck down as being ultra vires Section 5A at it would be rendered inconsistent with the Act. This aspect of the matter is totally missed by the Division Bench which decided the case in (1975) Guj LR 137: (AIR 1975 Guj 63) (ii) The ratio of the decision in (1975) 16 Guj LR 137: (AIR) 1975 Guj 63) is per incuriam also on the ground that it is rendered without considering the binding decision of the Supreme Court on the point as reported in AIR 1973 Supreme Court 2361 (supra). As these vital aspects of the matter were not at all, before the mind's eyes of the Division Bench which decided the case in (1975) 16 Guj LR 137: ((AIR) 1975 Guj 63), it must be held that the the said decision itself is per incuriam. Even otherwise, the ratio of the said decision flies in the face of the statutory scheme as envisaged by the Act and as pronounced upon by the authoritative pronouncedent of the Supreme Court in AIR 1973 Supreme Court 2361. We must, therefore, hold that the (1975) 16 Guj LR 137: (AIR 1967 5 Guj 63) does not lay down good law and it is, therefore, required to be overruled. It must be kept in view that whether 30 days’ period for filing objections is proper or not or whether there is any sanctity behind that period is a question for the legislature to consider. It is not open to the Court to sit in judment over the legislative decision as reflected by the statutory provision laying down 30 days upper limit for filing objections to section 4 notification. May be, that there may case for extending that period. May be, that there may not be any ‘logos’ and ‘ethos’ in investigating ‘now or never’ significance to this period, but as the period is provided by the legislature itself, it is the privilege of the legislature and no one else to extend that period by making suitable legislative amendment. So far as the court is concerned, d it has got to follow the strict mandate of the statutory provision. Rule making authority equally has no jurisdiction to extend the period of limitation as laid down by the statutory provision and to clothe the Collector with any wider power for extending the period statutorily granted by the legislature. It is also pertinent to note that once section 5A fixes the outer limit of 30 days from the date of issue of the notification under section 4 for lodging objection, the Collector cannot get any power under section 5A to accept and entertain any time barred objections. If he tries to do so, he will be acting ultra vires the statute. No question of paying homage to principles of natural justice is involved in such an ultra vires and, therefore, abortive exercise as, with respects, wrongly assumed by learned Judges in (1975) 16 Guj LR 137: (AIR 1975 Guj 63)“

41. We shall now deal with the decisions relied upon by Mr. P.S Champaneri, the learned Assistant Solicitor of India appearing on behalf of the respondents in support of his submission.

42. The first decision relied upon by Mr. P.S Champaneri is the case of Shri. Sanyojan Cooperative Housing Society (Supra), which we have dealt with in the preceding paragraph. Once again, we state that this decision of the full Bench of this Court would not help the client of Mr. Champaneri as the objections in the present case were lodged within a period of 30 days as prescribed in the Act.

43. In Himmat Vallabhbhai Patel (Supra) the Division Bench of this Court (to which one of us J.B Pardiwala, J) was a party was dealing with a matter under the Electricity Act, 2003. The issue in the said matter was as to whether the authorities were empowered to erect polls in the private land of an individual for electricity lines without obtaining consent of the owner of the land in exercise of powers under Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885. While deciding the said issue, the Court held that the authority under the Electricity Act, 2003, had absolute power to proceed with placing of electric supply lines or electric polls for the transmission of electricity on or over the private lands without first obtaining the consent of the owner subject to the rights of the owner/occupier to the claim compensation if any damage was caused. While deciding this issue, the Court also held that the suitability of the lands sought to be acquired or used for any public purpose could not to be adjudged by the Court in exercise of power under Article 226 of the Constitution of India. Thus, this judgment would also not help the respondents in any manner as we have not said any thing as regards the suitability of the landor alignment. We have decided the whole matter considering the manner, the method and the mode adopted by the competent authority in deciding the objections.

44. In Girias Investment (P) Ltd. (Supra), the Supreme Court took the view that the rights of a individual whose property is sought to be acquired must be scrupulously respected but, at the same time, the acquisition for the benefit of the public at large should not be lightly quashed and extraordinary reasons must exist for doing so. There cannot be any debate on the proposition laid down by the Supreme Court but, in the facts of the present case as we have held that the opportunity of hearing given to the farmers was nothing but, an eyewash and thereby, infringing their fundamental rights, this judgment also would not be of any help to the respondents as in our opinion, the present case is one in which extra-ordinary reasons do exist.

45. In such circumstances, we are left with no other alternative but, to set-aside the order dated 15.02.2012, passed by the competent authority under Section 20(D) of the Act and also the consequent notification dated 04.04.2012 passed under Section 20(E) of the Act, 1989.

46. We are of the opinion that this is a fit case wherein we should direct the competent authority to once again undertake the exercise of considering all the objections raised by the farmers with proper & independent application of mind on each and every aspect including the aspect of alignment and pass a reasoned order afresh.

47. For the foregoing reasons, we set-aside the order dated 15.02.2012, passed by the competent authority under Section 20(D) of the Act and also the consequent notification dated 04.04.2012 issued under Section 20(E) of the Act, 1989. The competent authority is directed to undertake a fresh exercise to consider all the objections raised by the farmers including the objections as regards the alignment and pass a fresh reasoned order without being influenced in any manner by any of the observations made by this Court in this judgment or by any earlier communications at the end of the acquiring body. If necessary the competent authority may once again hear the farmers in person on the same objections which they had raised on 05.08.2011 and 09.08.2011 respectively. The competent authority shall complete this exercise within a period of four weeks from the date of receiving of certified copy of this judgment. Rule is made absolute to the aforesaid extent.

FURTHER ORDER

After this order is passed, Mr. Pankaj Champaneri, the learned Assistant Solicitor General of India prays for stay of the operation of our order, for four weeks.

In view of what has been stated above, we see no reason to stay our order. Prayer is rejected.

Land Acquisition Act.

Writ Petition (Pil) No. 173 of 2012,[On note for speaking to minutes of order dated 22/02/2013 in C/WPPIL/173/2012]

Railway Corridor Virodh Kishan Sangh v. Union Of India

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Railway Corridor Virodh Kishan Sangh v. Union Of India

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