Shanta Talwar & Anr vs Union Of India & Ors

Shanta Talwar & Anr. .... Appellants

Versus

Union of India & Ors. .... Respondents

WITH

CIVIL APPEAL NO. 3199 OF 2008

WITH

CIVIL APPEAL NO. 3200 OF 2008

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Since all these appeals involve identical issues, we

propose to dispose of all these appeals by this common

judgment and order.

2. All these appeals are directed against the judgments and

orders passed by the High Court of Delhi, whereby the

High Court has dismissed the Writ Petitions filed by the

appellants herein. The Writ Petition Nos. WP(C) 8440-

43/2003; 2329/04 and 2786/04 filed by Pawan Singh &

Ors.; Shanta Talwar and Diwan Chand, respectively,

were dismissed by the Division Bench of the Delhi High

Court by its common judgment and order dated

07.04.2004, whereas, the Writ Petition (Civil) No. 716/08

filed by Neera Jain and Writ Petition (Civil) No. 573/08,

in which Veena Kapuria was the second Petitioner, were

dismissed by a common judgment and order dated

11.04.2008 passed by another Division Bench of the

High Court of Delhi.

3. For the sake of brevity and convenience we propose to

take the facts of the case in the Writ Petitions filed by

Pawan Singh & Ors.; Shanta Talwar and Diwan Chand

challenging the acquisition proceedings of their lands for

the construction of Prem Nagar Station, which is a part

of Mass Rapid Transit System [for short `MRTS'], which is

a project undertaken by the Delhi Metro Rail Corporation

[for short `DMRC']. The aforesaid land was sought to be

acquired by issuing a notification under Section 4 of the

Land Acquisition Act, 1894 [for short `the LA Act'] on

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16.10.2003, but by the aforesaid notification, urgency

provision under Section 17(1) read with Section 17(4) of

the LA Act was also invoked dispensing with the enquiry

inviting objections under Section 5-A of the LA Act, which

was followed by issuance of Declaration under Section 6

and notice under Section 9 on 11.11.2003. There is no

dispute with regard to the fact that the possession of the

land was also taken by the DMRC on 24.12.2003 and

thereafter construction of the metro station was started,

which also stand completed as of now. An award was

passed in respect of the aforesaid land by the Land

Acquisition Collector on 17.09.2004. Smt. Shanta Talwar

and other appellants received the compensation as fixed

by the Collector.

4. The Parliament of India, in the year 1978 had also

enacted another legislation, namely, the Metro Railways

(Construction of Works) Act, 1978 [for short `the Metro

Railways Act'] which also contains the provisions for

acquisition of land required for specific purpose, namely,

for the construction of Metro Railways or other works

connected therewith, like: -

3 (a) make or construct in, upon, across, under or

over any lands, buildings, streets, roads, railways

or tramways or any rivers, canals, brooks,

streams or other waters or any drains, water-

pipes, gas-pipes, electric lines or telegraph lines,

such temporary or permanent inclined planes,

arches, tunnels, culverts, embankments,

aqueducts, bridges, ways or passages, as the

metro railway administration thinks proper;

(b) alter the course of any rivers, canals, brooks,

streams or water-courses for the purpose of

constructing tunnels, passages or other works

over or under them and divert or alter as well

temporarily as permanently, the course of any

rivers, cannals, brooks, streams or water-courses

or any drains, water-pipes, gas-pipes, electric

lines or telegraph lines or raise or sink the level

thereof in order the more conveniently to carry

them over or under, as the metro railway

administration thinks proper;

(c) make drains or conduits into, through or under,

any lands adjoining the metro railway for the

purpose of conveying water from or to the metro

railway;

(d) erect or construct such houses, warehouses,

offices and other buildings and such yards,

stations, engines, machinery, apparatus and

other works and conveniences, as the metro

railways administration thinks proper;

(e) alter, repair or discontinue such buildings, works

and conveniences as aforesaid or any of them,

and substitute others in their stead;

(f) draw, make or conduct such maps, plans,

surveys or tests, as the metro railway

administration thinks property;

(g) do all other acts necessary for making,

maintaining, altering or repairing and using the

metro railway;

4 However, in the said Writ Petitions filed by Pawan

Singh & Ors.; Shanta Talwar and Diwan Chand, the lands

were acquired by the State Government under the LA Act

for the establishment of Prem Nagar MRTS Station at the

request of DMRC and not under the Metro Railways Act.

5. Two Civil Appeals are also filed against the dismissal of

two other Writ Petitions, viz., the Writ Petition (Civil) No.

716/08 filed by Neera Jain and Writ Petition (Civil) No.

573/08, in which Veena Kapuria was the second

Petitioner, which were registered as Civil Appeal Nos.

3200/08 and 3199/08, respectively. The said cases

involved lands which were acquired by issuing a

notification dated 10.08.2007 under Section 4 of the LA

Act. Declaration was also issued in the said cases under

Section 6 by issuing a notification on 01.11.2007

followed by the notice under Section 9 issued on

01.11.2007. Not only possession of the said land was

taken but also award was passed on 30.10.2010. The

records disclose that some of the appellants in the said

cases have also received the compensation.

5 6. Be that as it may, in all these appeals possession of land

in question has already been taken and the purpose for

which the land was acquired has also been completed/

achieved.

7. Contentions raised by all the appellants herein are that

in view of the provisions of the Metro Railways Act, which

is applicable to the city of Delhi, the land for the purpose

of construction of Metro Railway could and should only

be acquired under the provisions of the said Act and not

under the provisions of the LA Act. Counsel appearing for

the appellants reinforced their arguments by contending

inter alia that no acquisition on behalf of the Metro

Railways could be made under the general law, i.e., LA

Act, as a special legislation called the Metro Railways

(Construction of Works) Act, 1978 was enacted by the

Parliament with the specific purpose and object of speedy

and adequate acquisition of land by the Central

Government. It was contended that in view of the

enactment and aforesaid special Act of 1978, which is a

complete and self-contained code providing for

acquisition of land solely for the purposes of Metro

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Railways, applicability of the LA Act for the purpose of

Metro Railways should be deemed to be impliedly

repealed.

8. It was further contended by the counsel appearing for the

appellants that the Metro Railways Act, which is a

specific law on the subject, having specifically excluded

incorporation of any law in the nature of Section 17(1)

and 17(4) of the LA Act, which provides for dispensation

of the enquiry as envisaged under Section 5-A of the LA

Act, the respondents acted illegally and without

jurisdiction in taking resort to the said urgency

provisions of the LA Act for the purpose of acquisition of

land of the appellants, particularly, when there is no

such provision in the Metro Railways Act for dispensation

of such enquiry and providing for an opportunity of

raising objections by the appellants with regard to very

act of acquisiton.

9. The aforesaid submission of the counsel appearing for

the appellants were countered by the counsel appearing

for the respondents contending inter alia that despite the

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fact that there is an Act called Metro Railways Act in

operation, yet the respondents are not denuded of the

power of invoking the provisions of the LA Act which

empowers the respondents to acquire land for the public

purpose, i.e., construction of MRTS projects in the cases

at hand. In support of the said contention counsel

appearing for the respondents relied upon the decisions

of this Court in the case of Rajinder Kishan Gupta and

Anr. V. Union of India and Ors. reported at (2010) 9

SCC 46 and also on the decision of this Court in S.S.

Darshan v. State of Karnataka and Ors. reported at

(1996) 7 SCC 302.

10. We heard the learned counsel appearing for the parties

who have elaborately taken us through the entire

records.

11. In view of the ever increasing demand of urban

population in Delhi, the existing service transport

facilities were found to be inadequate and, therefore, a

decision was taken by the Government for having a Mass

Rapid Transit System. To undertake the said project

8

DMRC was incorporated as a company under the Indian

Companies Act. Thereafter, for the purpose of operation

and maintenance of the Metro Railways in Delhi, an

Ordinance was promulgated in 2002 by the President of

India called `the Delhi Metro Railway (Operation and

Maintenance) Ordinance, 2002' which was replaced by

an Act of Parliament, viz., Delhi Metro Railway (Operation

and Maintenance) Act, 2002, in the same year. However,

the fact remains that despite the enactment of the

aforesaid two Acts of 1978 and 2002 whenever any land

was required for the purpose of MRTS project, the same

was acquired by the Land Acquisition authority from time

to time under the Land Acquisition Act and the said

acquired land was put at the disposal of the DMRC. In

fact, in accordance with the project and planning

undertaken for the said purpose, whenever a particular

piece of land at a particular place was required by the

DMRC, it had send a requisition to the land acquiring

authority and on such request being made the land was

acquired and put at the disposal of the DMRC. It is

admitted fact that every time the machinery under the LA

9

Act was put into motion, the provisions of the Metro

Railways Act have never been invoked and the

acquisitions in the present cases are no exception.

12. It is not in dispute that in Delhi land can be acquired by

the Government, for public purpose, under the provisions

of LA Act. The appellants are candid in accepting the

importance of the MRTS project for the people of Delhi

and also the fact that every time the machinery under the

LA Act is put into motion, the provisions of Metro

Railways Act have never been invoked.

13. The Metro Railways (Construction of Works) Act, 1978,

was also made applicable to Delhi, which provides for

acquisition of land required for specific purpose, namely,

for the construction of Metro Railways or other works

connected therewith as mentioned above. Our attention

was drawn to the Statement of Objects and Reasons of

the Metro Railways Act, 1978, which states that the Bill

provides a speedy and adequate procedure for the

acquisition of land, buildings, streets, roads or passage

or the right of user in, or the right in the nature of

10

easement on, such building, land, etc., by the Central

Government to the exclusion of the Land Acquisition Act,

1894. The Preamble of the Metro Railways Act also states

that the Act provides for the construction of works

relating to metro railways in metropolitan cities and for

matters connected therewith. Power to acquire land for

construction of any metro railways or for any other works

connected therewith was vested on the Central

Government under Section 6 of the said Metro Railways

Act. Section 9 of the Act provided for the procedure for

hearing of objections filed by the persons interested in

the land, building, street, road or passage. So far as

declaration of acquisition of land is concerned, the

provision made was Section 10 of the Act and the power

to take possession was vested on the competent authority

appointed by the Central Government as provided for

under Section 11 of the Metro Railways Act. Our specific

attention was drawn to Section 45 of the Metro Railways

Act which was a provision of saving, providing as follows:

-

"Section 45. Saving - Notwithstanding anything

contained in this Act any proceeding, for the

11

acquisition of any land, under the Land Acquisition

Act, 1894 for the purpose of any metro railway,

pending immediately before the commencement of

this Act before any court or other authority shall be

continued and be disposed of under that Act as if

this Act had not come into force."

Section 40 of the Metro Railways Act also provides that the

provision of the said Act or any Rule made or any

notification issued thereunder would have effect

notwithstanding anything inconsistent therewith contained

in any enactment other than the said Act or in any

instrument having effect by virtue of any enactment other

than the said Act.

14. Relying on the Statement of Objects and Reasons, the

Preamble and the abovesaid provisions of the Metro

Railways Act it was contended by the counsel appearing

for the appellants that in view of the incorporation of the

said provisions in the said Act, there was an implied

repeal of the Land Acquisition Act so far as it concerns

construction of Metro Railways or other works connected

therewith.

15. Similar contentions were also raised before the High

Court and the two Division Benches, who heard the

12

matters in question dismissed the said plea holding that

the two Acts are two independent Acts and it is for the

authority to decide as to which Act would be made

applicable in a given case.

16. However, in a situation, where recourse is taken to the

provisions of the LA Act for acquiring a property for

construction of Metro Railways or other works connected

therewith, the provisions mentioned in the LA Act could

and would only be made applicable and no provision of

Metro Railways Act could be taken resort to or making

use of. Similarly when recourse is taken for acquiring

land under the Metro Railways Act, no provision of the

LA Act would or could be made applicable as both the

two Acts contain separate provisions, although they are

similar in some respect.

17. The Metro Railways Act gives the detailed procedure as

to how land for construction of Metro Railways or other

works connected therewith could be acquired. The Act

also lays down the procedure for payment of

compensation. Section 17 of the Metro Railways Act

13

specifically states that nothing in the LA Act would apply

to an acquisition under the Metro Railways Act.

However, in Section 45 a saving clause has been

inserted, providing that any proceeding for the

acquisition of any land under the LA Act for the purpose

of any Metro Railway, pending immediately before the

commencement of this Act before any court or other

authority shall be continued and be disposed of under

that Act as if this Act had not come into force.

18. However, it cannot be said that by inserting the said

provision under Section 40 and Section 45 and also in

view of the Statements of Object and Reasons of the

Metro Railways Act, the applicability of LA Act for the

purpose of acquisition of land for construction of Metro

Railways or other works connected therewith would

stand repealed and could not be taken resort to. There is

no express provision in the Metro Railways Act repealing

applicability of the provisions of the LA Act. So long as

there is no specific repeal of applicability of the LA Act for

the purpose of acquiring land for establishing metro

railways it cannot be presumed that there is an implied

14

repeal as sought to be submitted by the counsel

appearing for the appellants. It also cannot be construed

that the Metro Railways Act is a special Act, of such a

nature, that with the enactment of the said Act the

general law in LA Act would get obliterated and

automatically repealed so far as acquisition of land for

the purpose of Metro Railways is concerned.

19. A similar contention was raised before this Court in the

case of Rajinder Kishan Gupta (supra). The counsel

appearing for the appellants, however, submitted that

although the said contention raised in the said case was

rejected, but, according to them, the said decision needs

reconsideration in view of the aforesaid specific

provisions of the Metro Railways Act.

20. We are however unable to agree to and accept the

aforesaid submission for the learned counsel for the

appellants for we do not believe that it was intended by

the legislature to do away with the applicability of the LA

Act for the purpose of acquisition of land for construction

of Metro Railways or other works connected therewith by

15

enacting the Metro Railways Act. The aforesaid Metro

Railways Act was enacted by the legislature, in order to

provide additional provisions for construction of Metro

Railways or other works connected therewith but it was

not made obligatory by the legislature to invoke only the

provisions of the said Metro Railways Act in case of

acquisition of land for construction of Metro Railways or

other works connected therewith. It was left upon to the

discretion of the concerned competent authority to take

recourse to any of the aforesaid provisions making it

clear that if resort is taken to the provisions of LA Act,

the said provisions could only be made applicable and no

provision of the Metro Railways Act would then be

resorted to. Similarly, if provisions of the Metro Railways

Act is taken resort to, then only such provisions would

apply and not the provisions of the LA Act.

21. One of the contentions of the counsel appearing for the

appellants was that the decisions in the case of Nagpur

Improvement Trust v. Vithal Rao and Ors. reported at

(1973) 1 SCC 500 which was relied upon by the High

Court, was referred in the context of the particular State

16

Act wherein reference was made to the LA Act and the

provisions of the LA Act were made applicable for

acquisition of land under that particular State Act also.

22. Wherever a particular State Act incorporates the

provision of the LA Act by way of reference or by way of

incorporation by the legislation, the provisions of the LA

Act automatically become applicable for the purpose of

carrying out the object of the said particular State Act

but wherever such power is not given there is no bar for

taking recourse to any of the Acts which are available on

the subject. There was no bar or prohibition for the

authority to take recourse to the provisions of the LA Act

which is also a self-contained Code and also could be

taken recourse to for the purpose of acquiring land for

public purposes like construction of Metro Railways and

works connected therewith. In all these cases no other

provision except the provisions of the LA Act have been

resorted to and, therefore, the appellants cannot have

any grievance for taking recourse to the said provision.

17 23. Besides, the Metro Railways Act gives power to the

competent authority to acquire land for the purpose of

construction of Metro Railways and works connected

therewith and in the said Act it is also provided that the

possession can be taken immediately after issuance of

the declaration as envisaged under the Act. The mode of

compensation is almost identical with that of Section 23

of the LA Act which lays down the manner for

determination of the compensation to be paid.

24. The only visible and specific distinction is absence of

power of taking immediate possession in case of urgency

as provided for under Sections 17(1) and 17(4) of the LA

Act. As there was urgency for construction of the Metro

Railways in Delhi because of various factors, urgency

clause was invoked in the present case and consequent

thereupon possession was taken and the construction

work of the Metro Railways including construction of the

stations is completed. Award has also been passed

determining the compensation. Therefore, the appellants

herein suffer no prejudice except for the fact that

possession was taken in the instant case on an urgent

18

basis. That plea has also been rendered infructuous in

view of the fact that the entire project is complete.

25. We see no reason to quash the notification issued under

Section 4 of the LA Act so as to postpone the date of

acquisition to a later period thereby allowing the

appellants an opportunity of getting higher

compensation. Instead, we feel it appropriate that the

policy and guidelines issued by the Government of NCT

of Delhi could be best utilized. The aforesaid policy was

issued by the Government of NCT of Delhi on 25.10.2006

by way of a Circular, which provides that the persons of

all categories, affected due to the implementation of Delhi

MRTS projects can be relocated and rehabilitated for

which the Government of India has communicated its

decision on 28.08.2006 intimating that the DMRC has

already relocated the persons affected by Line-III of Metro

Phase-I project and that Delhi Development Authority

should provide necessary number of units for the

rehabilitation of remaining project affected persons.

19 26. Counsel appearing for the DMRC informed us that any

such project affected person could submit their

application in a format prescribed, a copy of which was

placed before us. We are informed that all the appellants

herein have filed their applications in the appropriate

format to the concerned authorities. If the applications

have been filed by the appellants herein in the

appropriate format, those are required to be considered

by the concerned authorities as expeditiously as possible.

If any of the appellants has not filed any such application

in the format prescribed, it shall be open to such

appellants also to file such applications in appropriate

format within three weeks from the date of this order, in

which case, their applications shall also be considered

along with the applications already filed by the other

applicants/appellants and a decision thereon shall be

taken within eight weeks from the date of receipt of such

applications. Needless to say that in case, any of the

appellants is aggrieved by the decisions taken by DMRC

or by the other competent authority, such a decision

20

could be challenged by taking recourse to appropriate

remedy as provided for under the law.

27. With aforesaid observations and directions we, find no

merit in these appeals which are dismissed but giving

right to the appellants herein to take recourse for their

rehabilitation in terms of the circular issued by the

Government of NCT of Delhi, leaving it open to the

competent authority / Government to decide their cases

in accordance with law.

...........................................J

[Dr. Mukundakam Sharma ]

...........................................J

[ Anil R. Dave ]

New Delhi,

April 5, 2011

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