Deputy Chief Engineer vs Shauntala Chaturvedi & Ors.

"This appeal, under Section 74 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (for short "Act of 2013"), has been filed against the Award dated 31.03.2023 passed by Principal District Judge, Sheopur (M.P.) in Land Acquisition Case No. MJC/37/2022.

2.

Facts necessary for disposal of this appeal, in short, are that certain lands have been acquired for the purpose of laying down Meter Gauge in place of Narrow Gauge Railway Line. The lands, under the ownership of various persons situated in villages Bardhabujurg, Raipura & Dantarda Khurd, have been acquired. From village Dantarda Khurd around 2.200 hectares, from village Raipura 2.394 hectares and from village Bardhaburjurg about 17.555 hectares, in total 28.689 hectares of land was acquired under the Act of 2013. The Award was passed by Land Acquisition Officer on 08.10.2021. The matter was agitated under Section 64 of the Act of 2013 and Reference Court has applied the factor of "2", whereas according to appellant Reference Court should have applied the factor of "1", as notified by the State Government.

3.

In the present appeal, solitary ground has been raised by appellant that in place of factor of "2", factor of "1" should have been applied. By referring to Section 26 of the Act of 2013, it is submitted by counsel for appellant that guidelines have been provided under the aforesaid Section for determination of market value of land by Collector. It is submitted that as per Section 26(2) of the Act of 2013, the market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the first schedule. By referring to Section 3(e) of the Act of 2013, it is submitted that since the land which has been acquired is situated in the territory of State of Madhya Pradesh, therefore, Section 3(e)(i) would apply and thus it is submitted that notification issued by the State Government providing the factor "1" for multiplier as per Section 26(2) of the Act of 2013, would apply. Thus, it is submitted that Reference Court has wrongly applied the multiplier of "2" by treating the factor as "2" as notified by the Central Government.

4.

Per contra, appeal is vehemently opposed by counsel for claimants. It is submitted that since lands were acquired for the purpose of Union of India, therefore, Section 3(e)(v) would apply and thus, the notification issued by the Central Government would apply according to which multiplier/factor of "2" is applicable.

5.

Heard learned counsel for the parties.

6.

Section 26 of the Act of 2013 reads as under:-

26. Determination of market value of land by Collector.

(1)

The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:-

(a)

the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or

(b)

the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or

(c)

consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher:

Provided that the date for determination of market value shall be the date on which the notification has been issued under section 11.

Explanation 1. - The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made.

Explanation 2. - For determining the average sale price referred to in Explanation 1, one-half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account.

Explanation 3. - While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the provisions of this Act on an earlier occasion in the district shall not be taken into consideration.

Explanation 4. - While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opinion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value.

(2)

The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule.

(3)

Where the market value under sub-section (1) or sub-section (2) cannot be determined for the reason that-

(a)

the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or

(b)

the registered sale deeds or agreements to sell as mentioned in clause (a) of sub-section (1) for similar land are not available for the immediately preceding three years; or

(c)

the market value has not been specified under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority, the State Government concerned shall specify the floor price or minimum price per unit area of the said land based on the price calculated in the manner specified in sub-section (1) in respect of similar types of land situated in the immediate adjoining areas:

Provided that in a case where the Requiring Body offers its shares to the owners of the lands (whose lands have been acquired) as a part compensation, for acquisition of land, such shares in no case shall exceed twenty-five per cent. of the value so calculated under sub-section (1) or sub-section (2) or sub-section (3) as the case may be:

Provided further that the Requiring Body shall in no case compel any owner of the land (whose land has been acquired) to take its shares, the value of which is deductible in the value of the land calculated under sub-section (1):

Provided also that the Collector shall, before initiation of any land acquisition proceedings in any area, take all necessary steps to revise and update the market value of the land on the basis of the prevalent market rate in that area:

Provided also that the appropriate Government shall ensure that the market value determined for acquisition of any land or property of an educational institution established and administered by a religious or linguistic minority shall be such as would not restrict or abrogate the right to establish and administer educational institutions of their choice.

Section 3(e) of the Act of 2013 reads as under:

3. Definitions.

- In this Act, unless the context otherwise requires,-

(a)

to (d) xxx xxx xxx

(e)

"appropriate Government" means,-

(i)

in relation to acquisition of land situated within the territory of, a State, the State Government;

(ii)

in relation to acquisition of land situated within a Union territory (except Puducherry), the Central Government;

(iii)

in relation to acquisition of land situated within the Union territory of Puducherry, the Government of Union territory of Puducherry;

(iv)

in relation to acquisition of land for public purpose in more than one State, the Central Government, in consultation with the concerned State Governments or Union territories; and

(v)

in relation to the acquisition of land for the purpose of the Union as may be specified by notification, the Central Government:

Provided that in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such District shall be deemed to be the appropriate Government;

7.

The only controversy involved in the present case is that which is the "appropriate Government", whether State Government or Central Government?

8.

The undisputed fact is that the entire land is situated within the State of Madhya Pradesh and entire land has been acquired for the benefit of Railways which is Union of India. It is clear from Section 3(e)(i) that if the land is situated within the territory of the State of Madhya Pradesh, then notification issued by the State Government would apply. However, in the present case, although the land is situated within the State of Madhya Pradesh but it has been acquired for the purposes of Union. Therefore, as per Section 3(e)(v) of Act of 2013, notification issued by the Central Government would apply. It is not the case of appellant that Central Government has not notified the multiplier of "2". Furthermore, Division Bench of this Court in the case of Badrilal Dhakad and Others Versus Union of India and Others reported in 2022 SCC Online MP 280 has held as under:-

16.

As per the definition under section 2(b) of the Act of 2013 the State Government would be the appropriate Government in relation to the acquisition of land situated within the territory of State. The Central Government would be the appropriate government in relation of acquisition of land situated within Union territory except for Pondichery and in relation to acquisition of land for the public purpose in more than one State, the Central Government shall consult with the concerned State Government or the Union territory and under section 2(e)(v) of the Act of 2013 in relation to the acquisition of land for the purpose of the Union, as may be specified by notification, the appropriate Government would be the Central Government. Since the land of the petitioners is situated within the State Government, therefore, the respondents are treating State Government as appropriate Government and applying the notification dated 29.9.2014 under section 26(2) of Act of 2013 which gave a cause of action to the petitioners to challenge the validity of the said notification but if it is held that in this acquisition the appropriate Government is the Central Government then the notification issued by the Central Government dated 9.2.2016 would apply in which the multiplier is 2.00 (two) for the rural area. As per 1st Schedule, the following components provided in the table shall constitute the minimum compensation package to be given to the landowners whose land is acquired. Serial no. 2 is the factor by which the market value is to be multiplied in the case of rural areas and for which the appropriate government is required to notify the factor based on the distance of the project from the urban area. The Central Government has issued a notification prescribing the factor 2.00(two) whereas State of M.P. by way of impugned notification dated 29.9.2014 has fixed the multiplier 1.00(one) but the NHAI which is the instrumentality of the Central Government, therefore, by virtue of 2(e)(v) of Act of 2013 the Central Government shall be the appropriate Government, hence the notification dated 9.2.2016 issued by the Central Government would apply. In such a situation, the validity of the notification issued by the State Government is not required to be examined or adjudicated because the same is not applicable in the case of the petitioners. Since the petitioners have already preferred appeals before the Arbitrator u/s 3G(5), therefore, it is for the Arbitrator to consider and decide the multiplier in view of the findings given hereinabove instead of setting aside the award and remanding the matter to the competent authority.

9.

Under these circumstances, this Court is of considered opinion that Reference Court did not commit any mistake by applying the multiplier of "2" as notified by the Central Government. No other argument is advanced by counsel for appellant.

10.

It is not out of place to mention here that the claimants have also filed appeals for enhancement of compensation amount. Since the question of factor is covered in all the appeals and the claimants are satisfied with the factor of "2' which has been applied by Reference Court and this Court has also come to a conclusion that factor of "2" would apply for multiplier as provided under Section 26(2) of Act of 2013, therefore, by keeping the question of determination of market value, as provided under Section 26(1) of the Act of 2013 as challenged by the claimants, open, the Award dated 31.03.2023 passed by Principal District Judge, Sheopur (M.P.) in Land Acquisition Case No. MJC/37/2022 is hereby affirmed so far as it relates to application of factor "2" for multiplier as required under Section 26(2) of the Act of 2013.

11.

With aforesaid observations, appeal fails and is hereby dismissed."

"15.

The petitioners have challenged the validity of the notification dated 29.9.2014 issued by the Government of M.P. because the same has been applied in their cases for the calculation of the compensation. It is not in dispute that the Central Government has appointed Sub Divisional Officer (Revenue) as ‘the competent authority for hearing the objection under section 3C of the NH Act of 1956. The Central Government has acquired the land of petitioners and others for NHAI for the construction of the national highway. Under section 3A of the NH Act if the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. The competent authority appointed by the Central Government shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. The national highway is a central Government project undertaken by the NHAI for which the land situated in the State of M.P. has been acquired, meaning thereby for the project of central Government land situated in the State of M.P. are being acquired. In such a situation who would be the appropriate Government under section 2(e) of the Act of 2013. If the central Government is appropriate then all the notifications issued by the Central Government would apply in multiplier factor 2(two), hence in that situation the petitioners have not required to challenge the validity of the notification dated 9.2.2016 issued by the State Government because the same would not apply.

16.

As per the definition under section 2(b) of the Act of 2013 the State Government would be the appropriate Government in relation to the acquisition of land situated within the territory of State. The Central Government would be the appropriate government in relation of acquisition of land situated within Union territory except for Pondichery and in relation to acquisition of land for the public purpose in more than one State, the Central Government shall consult with the concerned State Government or the Union territory and under section 2(e)(v) of the Act of 2013 in relation to the acquisition of land for the purpose of the Union, as may be specified by notification, the appropriate Government would be the Central Government. Since the land of the petitioners is situated within the State Government, therefore, the respondents are treating State Government as appropriate Government and applying the notification dated 29.9.2014 under section 26(2) of Act of 2013 which gave a cause of action to the petitioners to challenge the validity of the said notification but if it is held that in this acquisition the appropriate Government is the Central Government then the notification issued by the Central Government dated 9.2.2016 would apply in which the multiplier is 2.00(two) for the rural area. As per 1st Schedule, the following components provided in the table shall constitute the minimum compensation package to be given to the landowners whose land is acquired. Serial no. 2 is the factor by which the market value is to be multiplied in the case of rural areas and for which the appropriate government is required to notify the factor based on the distance of the project from the urban area. The Central Government has issued a notification prescribing the factor 2.00(two) whereas State of M.P. by way of impugned notification dated 29.9.2014 has fixed the multiplier 1.00(one) but the NHAI which is the instrumentality of the Central Government, therefore, by virtue of 2(e)(v) of Act of 2013 the Central Government shall be the appropriate Government, hence the notification dated 9.2.2016 issued by the Central Government would apply. In such a situation, the validity of the notification issued by the State Government is not required to be examined or adjudicated because the same is not applicable in the case of the petitioners. Since the petitioners have already preferred appeals before the Arbitrator u/s 3G(5), therefore, it is for the Arbitrator to consider and decide the multiplier in view of the findings given hereinabove instead of setting aside the award and remanding the matter to the competent authority."

2.

The present review petitions are filed solely on the ground thatNHAI has failed to bring on record letter F.No. 13013/02/2016-LRD issued on 8.5.2017 (sic 14.12.2017) by the Government of India, Ministry of Rural Development, Department of Land Resources, New Delhi to all the Chief Secretaries/Administrators of all State/Union Territoriesclarifying the position in respect of applicability of multiplying factor provided in First Schedule to the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement. xx xx xx

5.

In exercise of powers u/s. 30(2) of the Act of 2013, the Central Government by way of Notification dated 13.2.2015 (sic 9.2.2016) published in the Gazette of India (Extraordinary) has notified that in the case of therural area the factor multiplier shall be 2 (two). When the factor multiplier for rural area 2 (two) has been notified by the Government of India by way of Gazette Notification for the land situated in a rural area, then the Government of India by way of letter/circular cannot modify the Notification without publishing in the official gazette. It is not the case of the NHAI that the letter dated 9.2.2016 (sic 14.12.2017) has not been passed in the exercise of powers u/s. 30(2) of the Act of 2013. Hence, this letter shall not supersede or dilute the effect of the Notification dated 9.2.2016. Notification dated 9.2.2016 nowhere distinguish that this shall apply only to the land situated in Union Territory. Therefore, the ground on which the review is sought is wholly misconceived.

(e)

“appropriate Government” means,—

(i)

in relation to acquisition of land situated within the territory of, a State, the State Government;

(ii)

in relation to acquisition of land situated within a Union territory (except Puducherry), the Central Government;

(iii)

in relation to acquisition of land situated within the Union territory of Puducherry, the Government of Union territory of Puducherry;

(iv)

in relation to acquisition of land for public purpose in more than one State, the Central Government, in consultation with the concerned State Governments or Union territories; and

(v)

in relation to the acquisition of land for the purpose of the Union as may be specified by notification, the Central Government:

Provided that in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such District shall be deemed to be the appropriate Government;

Bhopal, the 29th September 2014 No. F 16-15(1)-2014-VII-Sec. 2A- In exercise of the powers conferred by the proviso to clause (e) of Section 3 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (No. 30 of 2013), the State Government hereby notifies that the Collector shall be deemed to be the appropriate Government for the purpose of this Act, in respect of a public purpose in a district for an area not exceeding ten thousand hectares. By order and in the name of the Governor of Madhya Pradesh

"26.

Determination of market value of land by Collector.– (1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:—

(a)

the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or

(b)

the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or

(c)

consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, + whichever is higher:

Provided that the date for determination of market value shall be the date on which the notification has been issued under section 11.

Explanation 1.—The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made.

Explanation 2.—For determining the average sale price referred to in Explanation 1, one-half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account.

Explanation 3.—While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the provisions of this Act on an earlier occasion in the district shall not be taken into consideration.

Explanation 4.—While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opinion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value.

(2)

The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule.

(3)

Where the market value under sub-section (1) or sub-section (2) cannot be determined for the reason that—

(a)

the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or

(b)

the registered sale deeds or agreements to sell as mentioned in clause (a) of sub-section (1) for similar land are not available for the immediately preceding three years; or

(c)

the market value has not been specified under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority, the State Government concerned shall specify the floor price or minimum price per unit area of the said land based on the price calculated in the manner specified in sub-section (1) in respect of similar types of land situated in the immediate adjoining areas:

Provided that in a case where the Requiring Body offers its shares to the owners of the lands (whose lands have been acquired) as a part compensation, for acquisition of land, such shares in no case shall exceed twenty-five per cent, of the value so calculated under sub-section (1) or sub-section (2) or sub-section (3) as the case may be:

Provided further that the Requiring Body shall in no case compel any owner of the land (whose land has been acquired) to take its shares, the value of which is deductible in the value of the land calculated under sub-section (1):

Provided also that the Collector shall, before initiation of any land acquisition proceedings in any area, take all necessary steps to revise and update the market value of the land on the basis of the prevalent market rate in that area:

Provided also that the appropriate Government shall ensure that the market value determined for acquisition of any land or property of an educational institution established and administered by a religious or linguistic minority shall be such as would not restrict or abrogate the right to establish and administer educational institutions of their choice.

27.

Determination of amount of compensation.–The Collector having determined the market value of the land to be acquired shall calculate the total amount of compensation to be paid to the land owner (whose land has been acquired) by including all assets attached to the land.

28. Parameters to be considered by Collector in determination of award.–

In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration—

firstly, the market value as determined under section 26 and the award amount in accordance with the First and Second Schedules;

secondly, the damage sustained by the person interested, by reason of the taking of any standing crops and trees which may be on the land at the time of the Collector's taking possession thereof;

thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;

fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;

fifthly, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change;

sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 19 and the time of the Collector's taking possession of the land; and

seventhly, any other ground which may be in the interest of equity, justice and beneficial to the affected families.

29. Determination of value of things attached to land or building.–(1)

The Collector in determining the market value of the building and other immovable property or assets attached to the land or building which are to be acquired, use the services of a competent engineer or any other specialist in the relevant field, as may be considered necessary by him.

(2)

The Collector for the purpose of determining the value of trees and plants attached to the land acquired, use the services of experienced persons in the field of agriculture, forestry, horticulture, sericulture, or any other field, as may be considered necessary by him.

(3)

The Collector for the purpose of assessing the value of the standing crops damaged during the process of land acquisition, may use the services of experienced persons in the field of agriculture as may be considered necessary by him.

30.

Award of solatium.– (1) The Collector having determined the total compensation to be paid, shall, to arrive at the final award, impose a “Solatium” amount equivalent to one hundred per cent. of the compensation amount. Explanation.—For the removal of doubts it is hereby declared that solatium amount shall be in addition to the compensation payable to any person whose land has been acquired.

(2)

The Collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule.

(3)

In addition to the market value of the land provided under section 26, the Collector shall, in every case, award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the notification of the Social Impact Assessment study under sub-section (2)of section 4, in respect of such land, till the date of the award of the Collector or the date of taking possession of the land, whichever is earlier."

"S.O. 425(E). In exercise of the powers conferred by column no. 3 of serial no. 2 of the First Schedule read with sub-section (2) of section 30 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (No. 30 of 2013), the Central Government, hereby, notifies that in case of rural areas, the factor by which the market value is to be multiplied shall be 2.00 (two)."

(p)

“land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. As per the aforesaid definition, land does not include the assets available or constructed on land. It would only include the things attached to the earth, or permanently fastened to anything attached to earth. Buildings, tubewells, wells, electrical installations, machineries, etc. would not fall within this definition. Building is not "attached" to earth. It is "constructed" on earth. Land location and value increases upon it being in vicinity to urban areas, but value of construction remains the same, whether it is rural, or urban area. The basic purpose of providing multiplication factor is to give appreciation to land value for it being in vicinity of urban areas. This is as per the language of Schedule-I itself, that provides that multiplication value shall depend on distance of project from urban area.