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Jigarbhai Amratbhai Patel vs State Of Guarat on 19 September, 2019

C/SCA/9864/2018 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 9864 of 2018
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 9864 of 2018
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 9864 of 2018
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 9864 of 2018
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 4 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 9864 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15392 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15398 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15399 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15400 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15401 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15402 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15404 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15406 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15407 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15408 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15409 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15410 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15411 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15412 of 2018
With

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R/SPECIAL CIVIL APPLICATION NO. 15413 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15414 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15416 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15417 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15418 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15419 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15420 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15421 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15422 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15423 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15424 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15426 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15427 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15428 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15435 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15436 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15961 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15962 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15963 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15964 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15965 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15967 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15968 of 2018

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With
R/SPECIAL CIVIL APPLICATION NO. 15969 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15970 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17161 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17164 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17167 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17186 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17187 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17192 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17193 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17196 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17201 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17204 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17207 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17209 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17653 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17654 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17655 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17656 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17657 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20458 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 1784 of 2019

FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR. JUSTICE ANANT S. DAVE sd/-
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV sd/-

1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy of the NO
judgment ?

4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?

JIGARBHAI AMRATBHAI PATEL
Versus
STATE OF GUARAT

Appearance:

MR MIHIR JOSHI, SENIOR COUNSEL, MR AJ YAGNIK, ADVOCATE AND
MR MC BHATT, ADVOCATE for the Petitioner(s)
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA VISHEN,
AGP for the Respondent(s) No. 1,3
MR DEVANG VYAS(2794) for the Respondent(s) No. 5
MR RAMNANDAN SINGH(1126) for the Respondent(s) No. 6
MS ARCHANA U AMIN(2462) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 4

CORAM: HONOURABLE MR. JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV

Date : 19/09/2019

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE ANANT S. DAVE
HONOURABLE MR. JUSTICE BIREN VAISHNAV)

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The respondent National High Speed Railway
Corporation Limited (NHSRCL), a Special Purpose Vehicle
formed by the Ministry of Railways has undertaken
construction and implementation of the Mumbai – Ahmedabad
High Speed Rail Project (Bullet Train) which is expected to
cover 508 kms between Mumbai and Ahmedabad. The
petitioners before us are agriculturists who have challenged
the acquisition of their lands for the aforesaid project.

The petitioners have inter alia challenged the
validity of Section 10A of The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement [Gujarat Amendment] Act, 2016 enacted by the
Legislature of the State, inter alia, providing for exemption
from Chapter-II and Chapter-III of The Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.

Apart from the aforesaid challenge to the
legality and validity of the provisions of The Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement [Gujarat Amendment] Act,
2016, the petitioners have also prayed for declaring the
preliminary notification dated 09.04.2018 issued under sub-
section (1) of Section 11 of The Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 on the ground of it being violative of
fundamental rights, illegal, arbitrary, violative of Articles 14,
19, 21 and 300A of the Constitution of India and hence
unconstitutional.

With this preface, we proceed to pen down
our views on the entire controversy in question which has
been heard and decided pursuant to lengthy and exhaustive

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arguments by learned advocates for both the sides and
voluminous materials on records.

PART – I

1. Since all these petitions arise out of common questions
of facts and law, they are being considered and decided by
this common judgement. The petitions so filed are seeking
the following prayers (For the sake of brevity and
convenience, we reproduce the prayers sought for in Special
Civil Application No. 9864 of 2018):-

“A. Be pleased to declare the preliminary
notification issued under Section 11(1) of the Right
to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
(Gujarat) Act, 2013 by the respondent State and
annexed to the present petition at ANNEXURE-A as
being in contravention of Section 26 of the Right to
Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013, and thus is illegal, arbitrary, violative of
Articles 14, 19, 21 and 300A of the Constitution of
India and hence unconstitutional And Be Further
Pleased to quash and set aside the preliminary
notification dated 9th April 2018 issued under
Section 11(1) of the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 by the
respondent State and annexed to the present
petition at ANNEXURE-A.

B. Be pleased to direct respondent Special Land
Acquisition Officer/Collector, District Bhavnagar to
immediately initiate the revision and updation of
the market value for the District Surat following
the mandate of Section 26 of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,

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2013 r/w the provisions of the Bombay Stamp Act,
1958 and not to permit/restrain the respondent
Special Land Acquisition Officer /Collector from
initiating/proceeding further for land acquisition
proceedings for the Mumbai Ahmedabad High
Speed Rail Project until the process of revision and
updation of market value is complete as per the
statutory norms and rules and following the
mandate of Section 26 of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013.

C. Be pleased to hold that the preliminary
notification issued by the respondent State of
Gujarat under Section 11(1) annexed to the present
petition at ANNEXURE-A is not issued by the
appropriate government as defined in Section 3(e)

(iv) of the Act of 2013, for the project of Mumbai-
Ahmedabad High Speed Rail Project to establish
bullet train and hence are de hors the jurisdiction
and without any power and authority and hence
illegal and unconstitutional and Be Further
pleased to quash and set aside the same.

D. Be pleased to hold and declare that Section 10A
read with Section 2(1) of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
[Gujarat Amendment] Act, 2016 is ultra vires the
constitution including Article 254(2) and therefore
violative of fundamental rights and hence
unconstitutional.

E. Be pleased to hold and declare that notification
issued by respondent State under Section 10(A)
read with Section 2(1) of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
[Gujarat Amendment] Act, 2016 and annexed to the
present petition at ANNEXURE-G is
unconstitutional and violative of fundamental rights
and Be Further pleased to quash and set aside the
same.

EE. Your Lordships be pleased to hold and declare

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that notification issued under Article 258(1) dated
08.10.2018 by the respondent Union of India is
illegal, violative of fundamental rights, bad in law
and hence unconstitutional and be further pleased
to quash and set aside the same.

EEE. In the alternative, Your Lordships be pleased
to hold and declare that notification issued under
Article 258(1) dated 08.10.2018 by the respondent
Union of India is illegal, violative of fundamental
rights, bad in law to the extent that it gives
retrospective effect and legalizes and validates all
actions, decisions and notifications issued by the
respondent State till 08.10.2018 pursuant to the
process of land acquisition for the project of
Mumbai-Ahmedabad High Speed Rail.

F. During the pendency and/or final hearing of the
present petition be pleased to stay operation of
Section 10A read with Section 2(1) of the Right to
Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
[Gujarat Amendment] Act, 2016 with regard to the
project of Mumbai-Ahmedabad High Speed Rail
Project and particularly in the notification issued by
the respondent State dated 06.02.2018 and
annexed to the present petition at ANNEXURE-G
exempting the project of Mumbai-Ahmedabad High
Speed Rail Project from the provisions of the
Chapter II and III of the Principal Act.

G. During the pendency and final disposal of the
present petition be pleased to stay the preliminary
notification dated 9th April, 2018 issued by the
respondent Revenue Department, State of Gujarat
under Section 11(1) of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013 and annexed to the present petition at
ANNEXURE-A.

H. During the pendency and final disposal of the
present petition by pleased to direct respondent
Special Land Acquisition Officer /Collector, District
Surat to immediately initiate the revision and
updation of the market value for the District Surat

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following the mandate of Section 26 of the Right to
Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013 r/w the provisions of the Bombay Stamp Act,
1958.

I. During pendency and final disposal of the present
petition be pleased to restrain respondent Special
Land Acquisition Officer/ Collector, District Surat
from initiating/proceeding further for land
acquisition proceedings for the Mumbai
Ahmedabad High Speed Rail Project until the
process of revision and updation of market value is
complete as per the statutory norms and rules and
following the mandate of Section 26 of the Right to
Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013.

J. During the pendency and/or final disposal of the
present petition be pleased to stay the notification
issued under Section 10A read with Section 2(1) of
the Amendment Act of 2013 and annexed to the
present petition at ANNEXURE-G.

JJ. During the pendency and/or final disposal of the
present petition, Your Lordships be pleased to hold
and declare that notification issued under Article
258(1) dated 08.10.2018 by the respondent Union
of India is illegal, violative of fundamental rights,
bad in law and hence unconstitutional and be
further pleased to quash and set aside the same.

JJJ. During the pendency and/or final disposal of the
present petition, Your Lordships be pleased to hold
and declare that notification issued under Article
258(1) dated 08.10.2018 by the respondent Union
of India is illegal, violative of fundamental rights,
bad in law to the extent that it gives retrospective
effect and legalizes and validates all actions,
decisions and notifications issued by the
respondent State till 08.10.2018 pursuant to the
process of land acquisition for the project of
Mumbai-Ahmedabad High Speed Rail.

K. To pass any other and further reliefs that may be

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deemed fit and proper and in the interest of Justice
and Equity.”

2. The background of facts under which these petitions are
filed are as under:

2.1 The petitioners are holders of lands situated within
various parts of South Gujarat. Their lands are sought to be
acquired for implementation of the vanity “Mumbai-
Ahmedabad High Speed Bullet Train Project”. It is their case
that in 2016/2017, the Central Government laid the
foundation stone for the ‘Bullet Train’ as popularly known,
between Ahmedabad and Mumbai. The Mumbai Ahmedabad
High Speed Rail Project (for short ‘MAHSR’ Project), as it is
known, is being carried out by the Government of India in
collaboration with the Government of Japan. The financial
assistance for the Mumbai-Ahmedabad High Speed Rail
Project is being offered by the Government of Japan in the
form of a loan with an interest rate of 0.1 per cent with
deferred schedule and payments.

2.2 For the implementation of the said project, Japan
International Cooperation Agency (JICA) prepared a feasibility
report. A special purpose vehicle, National High Speed
Railway Corporation Limited is formed by the Ministry of
Railways for the construction and implementation of the
project. The project is expected to cover 508 kms between
Ahmedabad to Mumbai. It will commence from Ahmedabad
and pass through Anand, Vadodara, Bharuch, Surat, Valsad
and Vapi districts of Gujarat.

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2.3 The Government of Gujarat, through the Revenue
Department started the land acquisition process by issuing a
preliminary notification under Section 11(1) of the Act of 2013
on 09.04.2018, declaring its intention to acquire the land in
the concerned areas. A notice under Rule 13(1) of the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Gujarat) Rules, 2017 was
issued which according to some of the petitioners, was never
sent but was lying at the Panchayat Office. Such notice was
dated 24.05.2018.

2.4 The petitioners of Special Civil Application No. 17653 of
2018 are tenants/occupants of individual shops at Kadak
Bazar in Vaodadara. It is their case that they are occupying
such premises for 40 years. Lands at Kadak Bazar are sought
to be acquired for establishment of a Terminal in support of
and to be connected to the bullet train station at Vadodara.
According to the petitioners, the Vadodara Municipal
Corporation has passed a resolution on 31.07.2018 to sell the
land at Kadak Bazar to the National High Speed Rail
Corporation Ltd. The petitioners being “affected families”
have sought to challenge these acquisitions on similar
grounds.

2.5 According to the averments made in the petition being
Special Civil Application No. 9864 of 2018, Section 26 of the
Act of 2013 provides for criteria for assessing and
determining the market value of land which is :

I. Market value as specified in the Bombay Stamp Act for
registration of sale deeds or agreements;

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II. The average of the sale price for similar type of land in
the nearest village (one half of the total number of sale
deeds or agreements on the higher side);

III. Consented amount of compensation for acquisition
of land for a private company or a public private
partnership project whichever is higher.

2.6 According to the petitioners, the proviso to Section 26
presupposes 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, meaning
thereby that the Collector, before initiating any land
acquisition proceedings, in any area, necessarily has to
update and revise the market value of the land as per the
prevalent rate in that area.

2.7 It is the case of the petitioners that Section 2(na) of the
Gujarat Stamp Act defines ‘Market Value’. The market value
has to be revised and updated by formulating a sound
scientific valuation process. According to the petitioners the
Annual Statement of Rates/Jantri (ASR in short) of the year
2011 which is being taken as a base for determining the
market value of properties is neither scientifically determined
nor reliable. As per the mandate of Section 26 of the Act of
2013, before initiating the land acquisition process, the
market value has to be revised and updated, meaning thereby
that as per the Gujarat Stamps Act, 1958, the Annual
Statement of Rates/Jantri has to be revised and updated and
more particularly, the same has to be done in conformation
with sound scientific valuation process.

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2.8 The petitioners further proceeded to state that in the
State of Gujarat the market value of the land is determined on
the basis of the Jantri or circle rates which is determined by
the Land Revenue Department by the Government of Gujarat
and published vide a resolution. That before initiation of any
land acquisition proceedings, the Collector has to necessarily
take steps to update and revise the market value of the
respective area where land is to be acquired and it is
incumbent on the Collector to update and revise the same.

2.9 The mandate therefore is that the market value of the
land is to be decided on the basis of Jantri which has to be
revised and updated so as to update and revise the market
value. The petitioners’ case in the present petitions is that the
respondent Collector before initiating the acquisition process
under the Act of 2013 has not revised and updated the market
value of the land on the basis of the prevalent market rate in
that area. Thus, despite of the legislative mandate of revising
and updating the market value before initiation of land
acquisition process not having been fulfilled, the preliminary
notification under Section 11(1) of the Act of 2013 has been
issued and the land acquisition process has been commenced.

2.10 The entire land acquisition process has therefore been
carried out and commenced in complete derogation of the
mandate of Section 26 without revising and updating the
Jantri rates. The Jantri in the State of Gujarat was last revised
in the year 2011 and hence the Jantri or Circle Rates used as
ready recliner by the respondent Competent Authority are of
the year 2011. It is the case of the petitioners that after the

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resolution of 18.04.2011 declaring the Jantri rates, there has
been no revision of such rates and therefore there is no
consequential revision of market value. Without such revision
of market value prior to the issuance of the preliminary
notification, the notification under Section 11(1) and notices
under Rule 13(1) are illegal and arbitrary. The non-revision of
such jantri rates, according to the petitioners have a
cascading effect on clause (b) of Section 26 and explanation
thereof as the average sale price referred to in clause (b) shall
be determined taking into account the sale deeds registered
for similar type of area in the nearby village or vicinity during
the immediately preceding three years. Thus the logical
corollary that follows is that the revision of market value and
updation of market value by the Collector is to be undertaken
before the initiation of land acquisition proceedings under the
Act. Since the market value has not been revised and updated
by the respondent Collector and yet without following the
legislative mandate and giving it a go by the land acquisition
process for the project of bullet train having been initiated is
illegal, arbitrary, violative of Articles 14, 19 and 21 of the
Constitution of India and hence unconstitutional.

2.11 Various paragraphs of the Comptroller and Auditor
General’s report have been adverted to pointing out that non-
revision of Jantri rates or ASR has caused non-revision of
market value and as a result the object of enhanced
compensation as envisaged under the Act of 2013 is defeated.

2.12 The other limb of challenge to the acquisition
proceedings are in context of the definition of the term
“appropriate government” as defined under Section 3(e) of

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the Act of 2013. The said section reads as under:

(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;

2.13 As per the definition of “appropriate government” and
particularly clause (iv) of sub-section (e) of Section 3 of the
Act of 2013, it has been specifically stated that if the
acquisition of land for public purpose is required for a project
in more than one state, appropriate government is

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Central Government and not the State Government. Since the
land is sought to be acquired in more than one State, the
appropriate government would be the Central Government
and not the State Government. Hence, the preliminary
notification issued under Section 11(1) is de hors the
jurisdiction.

2.14 Further, as set out in the petition, it is the case of the
petitioners that the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 was enacted to ensure a more
participative, informed and a transparent process. The
progressive pillars of the legislation included Social Impact
Assessment and Consent Clause.

2.15 The petitions then further chart out the bringing out of
Gujarat Amendment Act of 2016 which received the assent of
the President on 08.08.2016. By such Amending Act, the
principal Act of 2013 came to be amended by the State of
Gujarat, inter alia, completely doing away with the Social
Impact Assessment and Consent Clause/s, the object and
reason for the same being that Gujarat is an industrially
progressive and more and more investment is coming to the
state and hence the state government aims to provide all basic
facilities and infrastructure to the entrepreneurs. Since it has
been experienced that after coming into force of the said act
which has very stringent provisions for acquiring the land,
land acquisition has become a very lengthy and difficult
proposition. It is therefore considered necessary to make the
procedural part of the land acquisition smooth and easy
without interfering with the rights of the persons whatsoever

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whose lands are acquired.

2.16 It is dismantling and more particularly the irrational,
arbitrary and excessive delegation to the executive i.e. the
State Government to exempt any project, in the name of
public interest, from the provisions of Chapter II and III of the
principal act i.e. Social Impact Assessment and Consent
Clause which is under challenge.

2.17 It is the case of the petitioners that prior to the
preliminary notification under Section 11(1) dated
08.04.2018, the State Government had issued a notification
dated 06.02.2018 under Section 10A read with Section 2(1) of
the Amended Act 2013 by way of Gujarat Amendment Act of
2016 thereby exempting the project of Mumbai-Ahmedabad
High Speed Rail Project from the provisions of Chapter II
and Chapter III of the Principal Act of 2013.

2.18 According to the pleadings in the petition, the very heart
and spirit of the Principal Act were completely done away
with. The notification dated 06.02.2018 and the provisions of
Section 10A read with Section 2(1) of the Gujarat Amendment
Act of 2016, according to the petitioners suffer from vice of
arbitrariness and excessive delegation. Challenge to this Act
of 2016 is also made in context of Section 107 of the Act of
2013.

2.19 Pleadings succinctly dealing with respect to the
challenge with regard to Article 254 of the Constitution of
India read thus:

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“…the granting of assent by the President under
Article 254(2) of the Constitution of India is not
exercise of legislative power of the President as
contemplated under Article 123 but is part of
legislative procedure. The words “reserved for
consideration” used in Article 254(2) cannot be an
empty/idle formality but would require serious
consideration on the material placed before the
President. The President is required to examine if
compelling reasons to sanction such a significant
deviation exist. It is always open for the Court to
review whether the procedure which requires
thorough reflection and conscious application of
mind by the President was observed or not.”

2.20 The petitioners, pending the hearing, have had to amend
the petitions. This has been so because the Union of India,
Ministry of Railways issued a notification under Article 258(1)
of the Constitution of India. The notification is also under
challenge, as by such notification, the executive
power/function of the Central Government as an appropriate
government under the Act of 2013 for acquisition has been
delegated in the State Government. It is the case of the
petitioners that the notification has been given retrospective
effect in order to validate and justify all actions of the State of
Gujarat. According to the petitioners, this exercise is an
evidence/admission that according to Section 3(e)(iv) it is the
Central Government which is the appropriate government.
Challenge is also on the ground that executive functions
cannot be delegated with retrospective effect. Pleading with
regard to such challenge as averred in paras 4.52 and 4.53
read as under:

“4.52. Moreover, any illegal or unlawful action of
exercising power, in the present case, exercise of
power by respondent State of Gujarat conferring

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itself the power of appropriate government under
the Act of 2013 and thereby issuing notification on
06.02.2018 under Section 10A read with 2(1) of the
Act of 2013, prior to issuance of notification dated
8th October, 2018 being without jurisdiction,
authority and power and therefore being illegal and
unlawful from very inception can never be legalized
and validated by invoking deeming fiction under
the Doctrine of Retrospective or retroactive action.
That which is illegal and unlawful from very
inception can never be legalized and validated by
deeming fiction even by exercising power under the
Constitution of India.

4.53. The second important aspect is whether such
delegation of executive function of respondent
Central Government to the respondent State
Government can allow and permit respondent State
Government to acquire land not under the Central
unamended legislation of the Act of 2013 but under
the amended State legislation by the respondent
State of Gujarat that has come into effect from 12th
August, 2016. It is stated and submitted that by
the impugned notification the respondent State of
Gujarat with retrospective effect by way of
delegation is entrusted with the executive function
to acquire land for Mumbai-Ahmedabad High
Speed Rail Project and therefore it steps into the
shoes of respondent Central Government. However
because acquisition of land for Mumbai-Ahmedabad
High Speed Rail Project being a multi-state project
and that is why Central Government is the
appropriate government to acquire land and hence
even under delegated power the respondent-State
of Gujarat has to acquire land under the
unamended Central legislation of 2013 by initiating
the process of acquisition afresh. The ongoing
acquisition cannot go further as it is taking place in
accordance with the state amendment of the
central legislation. In other words, in order to
acquire land for the project of Mumbai-Ahmedabad
High Speed Rail the state of Gujarat has to
implement provisions as envisaged in Chapter II
and III of the Act of 2013.”

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2.21 It is the case of the petitioners that as per the Act of
2013, if the Central Government is the appropriate
government then despite the delegation to acquire lands, it is
the Central Government which has to follow the provisions of
Chapters II and III of the Act of 2013 and therefore the
notification issued by the State Government under Section
10A read with Section 2(1) of the Gujarat Amendment Act,
2016 exempting the project from the provisions of Chapters II
and III of the Act of 2013 is unconstitutional and hence bad in
law. The notification of 08.10.2018, according to the
petitioners also suffers from the vice of arbitrariness as it
denies to the residents within the State of Gujarat the benefits
of compensation, rehabilitation under the Central Act which
would be available to the residents of Dadra and Nagar Haveli
for the same purpose. Based on these pleadings in the
petitions, the prayers are reproduced hereinabove, are sought
by the petitioners.

3. In addition to filing a reply in Special Civil Application
No. 9864 of 2015, the State has filed an extensive reply
dealing with each of the contentions raised. Such reply has
been filed in Special Civil Application No. 17653 of 2018. It
will therefore be appropriate to just take an overall view of
how the contentions are answered, before we go into the
submissions made by the learned Advocate General on behalf
of the State of Gujarat. Reference is made to the reply filed
by Keshavlal Dhulabhai Upadhyay, Deputy Secretary Revenue
Department dated 10.12.2018.

3.1 The preface to the setting up the project has been
explained in paragraph no. 4.1 of the reply, which reads as

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under:

“4.1 It was after the visit of the Indian delegation
led by the Hon’ble Prime Minister of our country to
Japan that a need for construction of High Speed
Train was realized in the larger public interest,
which led to the announcement in the month of
May 2013 for carrying out a joint feasibility study
on Mumbai-Ahmedabad Rail Project to be co-
financed by Government of India and Japan through
its governmental agency i.e. Japan International
Cooperation Agency (“JICA” for short) which is
chartered with assisting economical and social
growth in developing countries and promotion of
International Cooperation. As a result of the
aforesaid study, JICA submitted its Joint Feasibility
Report in the month of July 2015 wherein, after
having considered various options, a particular
route for the said Mumbai-Ahmedabad High-Speed
Rail Project (‘the Project’ for short) came to be
decided along with the estimated cost thereof to
the tune of Rs.98,000 Crores.”

3.2 Reference is made to the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Amendment Ordinance), 2014 followed by
issuance of another Ordinance on 30.05.2015 which contained
various provisions including Section 10A empowering the
appropriate government to exempt certain projects from the
application of provisions of Chapters II and III of the Central
Act of 2013. This was done in exercise of powers flowing from
Entry 42 of the Concurrent List.

3.3 The chronology of events thereafter have been
expressed in paragraphs no. 4.3 to 4.15 of the reply which
read as under:

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“4.3 Thereafter during the period from August
2015 to December 2015 various developments took
place wherein the Government of Japan offered
assistance package for the Project followed by
formation of an Empowered Committee on
Innovative Collaboration under the Chairmanship
of Vice-Chairman, Niti Ayog, which put up a
proposal of the Project followed by its Report
recommending the implementation of the Project
with Japanese financial and technical assistance.
Ultimately it was in the month of December 2015,
that a Memorandum of Cooperation was signed
between the Government of Japan and Government
of India for implementation of the Project providing
inter-alia for transfer of Technology, Make in India
for High Speed Rail trains and establishing of
Training Institute for High Speed Rail.

4.4 With a view to facilitating speedy
implementation and execution of the said Project,
on 12.02.2016, the Government of India and
participating State Governments formed a company
called ‘National High-Speed Rail Corporation Ltd.’
i.e. the Respondent No.3 (‘the Corporation’ for
short) with a main object to be pursued viz. to plan,
design, develop, build, commission, maintain,
operate and finance High-Speed Rail Services
between the State of Maharashtra and State of
Gujarat. This was followed by formation of
different committees / working groups like Joint
Committee, Working Group, Technical Group, etc.
During the period from March 2016 to December
2016, several rounds of meetings of the said
different committees and working groups viz. (i)
Joint Committee, (ii) Working Group, (iii) Technical
Group, etc. took place for finalizing the detailed
plans for implementation and execution of the
Project.

4.5 On 31.03.2016, Gujarat State Legislature
passed the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
and Resettlement (Gujarat amendment) Bill, 2016.

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4.6 Pertinently, in view of the provisions of the
said Bill being repugnant to the provisions of
Central Act of 2013 as an existing law falling under
Entry 42 of the Concurrent List, the aforesaid Bill
was reserved by the Hon’ble Governor for the kind
consideration of the Hon’ble the President under
Article 254(2) of the Constitution of India and
ultimately, the assent came to be accorded by the
Hon’ble President on 08.08.2016 to the aforesaid
Bill whereupon, the said Bill got culminated into
the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and
Resettlement (Gujarat amendment) Act, 2016 (“the
State Amendment Act of 2016” for short). A
copy of the Statement of its Objects and Reasons
(“the SOR” for short) of the said Bill as well as a
copy of the said State Amendment Act of 2016 are
annexed herewith and collectively marked as
Annexure-II (colly.).

4.7 On 12.01.2017, a Memorandum of
Understanding came to be arrived at between the
Government of Gujarat through Gujarat
Infrastructure Development Board on one hand and
the Corporation on the other. As per the said
Memorandum of Understanding, for efficient
implementation / development of the Project, it was
agreed that the Government of Gujarat will
facilitate the acquisition of the land for the Project.
For ready reference, a copy of the aforesaid
Memorandum of Understanding dated 12.01.2017
is annexed hereto and marked as Annexure-III.

4.8 Thereafter, the Government of India, Ministry
of Railways, Railway Board, addressed a
communication dated 31.03.2017 to the Chief
Secretary, Government of Gujarat, stating, inter-
alia, that since the Project is monitored by a Joint
Committee under the Vice-Chairman, Niti Ayog,
Delhi and owing to adherence to the strict time
lines, the State Government may nominate in each
District, a Dedicated Land Acquisition Officer along
with required support staff with a view to seeing
that the land acquisition process can be initiated as

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soon as the land plan is submitted. Similar
communication dated 31.03.2017 was also
addressed to the Chief Secretary, Government of
Maharashtra and copies of the said two
communications, both dated 31.03.2017 of the
Government of India, Ministry of Railways (Railway
Board) addressed to the Governments of Gujarat
and Maharashtra are annexed hereto and
collectively marked as Annexure-IV (colly.).

4.9 Apropos the aforesaid communication dated
31.03.2017, the State Government, passed an
Order dated 25.04.2017 with a copy endorsed to
the Executive Director / PPP Railway Board, New
Delhi, appointing Land Acquisition Officers for land
acquisition for 8 Districts as indicated in the said
letter, by designating them as ‘Competent
Authority for Land Acquisition’ for the project. A
copy of the said order dated 25.04.2017 passed by
the State Government is annexed hereto and
marked as Annexure-V.

4.10 On 14.09.2017, the Hon’ble Prime Minister
and his Japanese counterpart Mr. Shinzo Abe laid
foundation stone in the city of Ahmedabad for the
country’s first 508 kms. High Speed Rail Project
between Mumbai and Ahmedabad. Thereafter, on
17.09.2017, loan agreements came to be signed
between JICA on one hand and Government of India
on the other in Delhi, providing Japanese ODA
loans of 85.974 billion yen to be repaid in 50 years
with 15 years grace, with interest at the rate of
0.1%.

4.11 On 09.10.2017, the Corporation addressed a
letter, inter-alia, requesting the Chief Secretary of
the State Government that the Corporation is
planning to submit Land Acquisition Papers to the
respective Land Acquisition Officers progressively
with an expectation that all the papers for the land
acquisition would be submitted to the concerned
Government Authorities during the month, more
particularly in view of the project being linear in
nature, whose success largely depends upon timely

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acquisition inasmuch as the Project has been
desired to be delivered in August 2022. It was
further proposed in the said letter to constitute a
High Power Committee under the Chairmanship of
the Chief Secretary which may review the progress
of land acquisition and other related matters. For
ready reference, a copy of the said letter dated
09.10.2017 of the Corporation addressed to the
Chief Secretary, Government of Gujarat is annexed
hereto and marked as Annexure-VI.

4.12 The State Government thereafter, in its Roads
Buildings Department constituted a High Power
Committee on 22.12.2017 for various issues, viz.
for land acquisition, forest environment, power
supply, utility shifting for implementation of the
Project. Pertinently, vide a communication dated
02.02.2018 addressed to all the concerned
authorities by the State Government, the State
Government, inter alia, informed about the
convening of the first meeting of the said
Committee under the Chairmanship of the Chief
Secretary of the Government of Gujarat, along with
various Central as well as the State Authorities on
16.02.2018 to discuss the issues relating to the
project including the issue relating to the land
acquisition, as per the agenda attached therewith.
After the said meeting the minutes thereof were
sent to all the authorities vide a communication
dated 20.03.2018. For ready reference, a copy of
the said communication dated 02.02.2018 along
with the agenda items is annexed hereto and
marked as Annexure-VII, whereas a copy of the
communication dated 20.03.2018 addressed to all
the authorities conveying the minutes of the said
meeting for information and further action is
annexed hereto and marked as Annexure-VIII.

4.13 I respectfully say that in the month of
February 2018, the Under Secretary, Revenue
Department of the State Government issued
various taluka / village-wise notifications in
exercise of the powers conferred under Section 10A
of the State Amendment Act of 2016, exempting the
lands specified in the said notifications to be
acquired for the project in question, from the

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application of the provisions of Chapter-II and
Chapter-III of the Central Act of 2013.

4.14 As a result of series of meetings having been
convened as aforesaid, in the months of April and
May 2018, the State Government at the behest of
the Central Government issued various taluka /
village-wise notifications under sub-section (1) of
Section 11 of the Central Act of 2013 declaring that
the lands mentioned in the schedule annexed to the
said notifications are required for the designated
public purpose, i.e. the Project in question.

4.15 The above referred notifications came to be
followed by issuance of Presidential Notification
dated 08.10.2018 under Article 258 of the
Constitution of India, entrusting to the State
Government, the executive function relating to the
land acquisition in question while ratifying all the
actions taken by the State Government in relation
to the acquisition of land within the territory of the
State as if the same have been taken for and on
behalf of the Central Government. A copy of the
aforesaid Presidential Notification dated
08.10.2018 is annexed herewith and marked as
Annexure-IX.”

3.4 The important highlights of the project have been set out
in paragraph no. 5 of the reply which highlights are as under:

“5. Before proceeding further, I may set out
hereunder the important highlights of the Project in
question.

(a) Total length of Mumbai – Ahmedabad
High Speed Train Corridor is going to
be around 508 kms, out of which a
portion of 350.53 kms is going to be in
the State of Gujarat, 2 kms in Union
Territory of Dadra Nagar Haveli, and
155.64 kms in the State of

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Maharashtra.

(b) Pertinently, most of the portion of the
aforesaid corridor is going to be
elevated, except 21 kms (approx) which
would be underground tunnel, of which
7 kms will be under sea.

(c) It is for the purpose of having the said
elevated corridor, that requirement of
land is of a patch having width of 17.5
mtrs for the train track at all places
other than Station and Depot areas.

(d) There will be one parallel road having
width of 4 mtrs, which would be
constructed all along the track (except
on bridges, tunnels and special
occasions) within the patch of 17.5 mtrs,
which would be available for the local
public for the usage. Within a range of 5
mtrs, from the edge of the said patch of
17.5 mtrs on both the sides, people will
be at liberty to construct after having
intimated to the Corporation and after
having taken requisite permission of
concerned developmental authorities.

(e) One of the main objectives of the project
in question is to reduce traffic pollution
and to strengthen intraregional
connectivity and to enhance wide –
ranging economical development of the
target areas.

(f) There will be going to be two types of
trains, out of which, one would be
covering the distance between
Ahmedabad – Mumbai in about 2 hours

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with 4 stations and another within 3
hours with 12 stations, in such a fashion
that there will be 35 pairs of such
trains which would be running between
two destinations and would be available
at the interval of every 30 minutes
during the normal hours and every 20
minutes during the peak hours.

(g) Total area of land to be acquired under
the State of Gujarat for the project is in
the order of about 966 hectares, out of
which 753 hectares represent private
owned land, 89 hectares of land belong
to the State and State Authorities, 124
hectares belong to Indian Railways and
0.7 hectares is the forest land.

(h) Pursuant to the requirement of JICA, an
independent agency called M/s Arcadis
was short listed by the Corporation with
the concurrence of JICA to carryout
district wise impact survey under the
supervision of JICA, which was
accordingly carried out during the
period from December, 2017 to July,
2018, followed by submission of
“Resettlement Action Plan – Mumbai –

Ahmedabad High Speed Railway
Project” dated 10.08.2018, wherefrom,
the following information can be
gathered:

(i) Total project affected household –
13006 (8472 – Guj);

(ii) Total Structures likely to be
affected – 3683 (1904 – Guj).

(i) 2nd Schedule to the Central Act of 2013
deals with various elements of

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rehabilitation and resettlement
entitlements for the affected families.
For the project in question, elements
referred to as Sr. Nos. 4, 5, 6, 7, 8, 10
and 11 are being pressed in services as
per the eligibility criteria of the affected
families. At the time of passing the
Award under section 43 of the Central
Act of 2013 by the administrator i.e.
Acquisition Officer, the provisions of
section 31A of the State amendment Act,
2016 will also be taken into account,
which provides for the grant of lump
sum amount of compensation equivalent
to 50% of the amount of compensation
determined under section 27 as
Rehabilitation and Resettlement Cost.”

4. The challenge raised in the petition are dealt with.
Though at the cost of burdening the records, in order to see
that how each challenge is answered, the same is reproduced
from the State’s reply only briefly:

Reproduction from affidavit-in-reply:

Para 7 : Re: A – Section 10-A of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Re-Settlement (Gujarat Amendment)
Act, 2016 vide which the project of Bullet Train has
been exempted from the provisions of chapter II and III
of the Act of 2013 is ultra-vires the constitution and
hence unconstitutional. (Paras – 1A and 4.7 to 4.19)

7.2 … It is submitted that it is well established position of law
that the delegation bereft of guidelines is known as “excessive
delegation”. In the present case, SOR of the State

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Amendment Act of 2016, alongwith its Section 10A provide
sufficient guidelines as to when the contemplated exemption
may be granted. The said SOR clearly suggests that the land
acquisition under the Central Act of 2013 is lengthy and
difficult process and that it is considered necessary to make
the procedural part of the land acquisition smooth and easy,
without interfering with the rights of the persons whose lands
are acquired. As against this, when the Project in question is
admittedly the infrastructural Project as referred to in Section
10A and being very important to the country as a whole, the
State Authority has been fully justified in issuing various
Notifications in the month of February, 2018 in exercise of the
powers conferred under Section 10A of the State Amendment
Act of 2016, providing requisite exemption.

7.4 The petitioners have given lot of emphasis on the
conduct of Social Impact Assessment as referred to under the
Central Act of 2013 by agitating that the said Social Impact
Assessment is the nucleus of the Central Act of 2013 and the
State Amendment Act of 2016 seeks to destroy the very
nucleus through its Section 10A … the need for conducting
Social Impact Assessment under the provisions of the Central
Act of 2013 is only for the purpose of recommending such
area of acquisition which would ensure – (i) minimum
displacement of people; (ii) minimum disturbance to the
infrastructure and ecological; and (iii) minimum adverse
impact on the individual affected. The project in question
being linear in nature as discussed hereinabove, all the
aforesaid aspects are even otherwise taken care of and hence,
the petitioners are not right when they contend that the State
Amendment Act of 2016 seeks to destroy the Central Act of

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2013, as alleged or otherwise. Thus, exemption from Social
Impact Assessment under the State Amendment Act of 2016
cannot be considered to be in cross purposes with the Central
Act of 2013.

7.5 …the extent of width land required for the Project being
linear in nature, is very minimal i.e. to the extent of only 17.5
metres of width. In view of this, the resultant consequential
impact in terms of displacement would be very meagre as
compared to other large Projects in respect of which,
additional benefits beyond monetary compensation like
rehabilitation and resettlement are required to be provided to
the families affected by involuntary displacement. … Under
the circumstances, it is very much competent on the part of
the State Legislature to provide for Section 10A in the State
Amendment Act of 2016 by guaranteeing additional benefits
in terms of rehabilitation and resettlement cost. In view of
this, it cannot be said that such provision is in cross purpose
with the Objects and Reasons of the Act of 2013 or that the
same seeks to destroy the nucleus of the Act of 2013.

7.7 It is not permissible to the petitioners to contend that
the acquisition in question will cease to be transparent and
fair in nature merely because of the absence of Social Impact
Assessment. Even otherwise, very similar exercise like Social
Impact Assessment carried out by M/s. Arcadis in the State
of Gujarat under the supervision of JICA by undertaking
district-wise impact survey during the period from December
2017 to July 2018, has captured all the details and information
which are ordinarily available as a result of the conduct of the
Social Impact Assessment like (i) estimation of affected

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families and their number of members; (ii) extent of land
acquired, such as agricultural land, private land or common
properties; (iii) issues as regards the land compensation,
livelihood, rehabilitation and resettlement of the population.
In support of this, I set out hereunder the following Charts i.e.
Tables taken from “Resettlement Action Plan – Mumbai –
Ahmedabad High Speed Railway Project” dated 10.8.2018,
submitted by M/s Arcadis as a result of aforesaid exercise
undertaken by it, which are self-explanatory:

(i) Table 1-1 indicating ‘District wise Project Impact’.

Actual Data Estimated Data Percenta
Number
Number Percentage ge of
Private of Land
Area in of total of Land Actual No of
SN District Land Parcel Structur Structure
(Ha) Land Parcel PAH PAH to CPR
(Ha) Surveyed es s
Parcel Survey* PAH Estimate
*
d
1 Ahmedabad 160.59 30.24 541 441 81.52 804 231 928 243 86.64 1
2 Kheda 106.18 96.52 815 765 93.87 771 109 783 121 98.47 9
3 Anand 52.35 48.2 434 433 99.77 898 140 901 143 99.67 4
4 Vadodara 166.94 115.42 1738 1620 93.21 1783 502 1828 505 97.54 9
5 Bharuch 140.33 128.18 921 724 78.61 830 62 1015 72 81.77 4
6 Surat 160.14 139.17 833 394 47.30 458 30 639 130 72.00 0
7 Navsari 87.76 79.53 836 704 84.21 916 288 1045 301 87.66 3
8 Valsad 128.33 107.2 861 851 98.84 2012 542 2046 548 98.34 6
9 Palghar 279.87 188.26 1341 1035 77.18 3498 1551 4396 1581 80.00 1
10 Thane 139.07 78.69 437 318 72.77 915 159 1166 179 78.47 0
11 DNH 8.12 7.26 118 100 84.75 121 68 137 68 88.32 0
12 Mumbai 4.6 3.7 3 3 100.00 0 1 0 1 0.00 0
1022.3
Total 1434.28 8878 7388 83.22 13006 3683 14884 3892 87.38 37
7

(ii) Table 2-1 indicating ‘Distribution of land area by Ownership’.

No Land plots affected (No.) Land area (Ha)
of
District/ UT vill Fo
Go Tota Fores
age Pvt. res IR1 Pvt. Govt. IR Total
vt. l t
s t
S
N

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Ahmedab 106.
1. 16 410 78 0* 53 541 30.24 23.2 0.19 160.59
ad 95
2. Kheda 22 691 122 0* 2 815 96.52 9.22 0.26 0.18 106.18
3. Anand 11 367 67 0* 0 434 48.2 3.91 0.24 0 52.35
142 29.7
4. Vadodara 35 264 0* 52 1738 115.42 21.64 0.1 166.94
2 8
5. Bharuch 27 729 191 0* 1 921 128.18 11.09 1 0.06 140.33
6. Surat 28 641 191 0* 1 833 139.17 20.47 0.38 0.12 160.14
7. Navsari 28 681 154 0* 1 836 79.53 7.72 0.47 0.04 87.76
8. Valsad 30 679 173 9 0 861 107.2 17.66 3.46 0 128.33
0.45
9. Palghar 73 911 336 91 3 1341 188.26 30.51 60.63 279.87
6
1
Thane 22 329 68 37 3 437 78.69 41.7 17.36 1.32 139.07
0.
11 Mumbai
2 2 1 0 0 3 3.7 0.9 0 0 4.6
. Sub
12
DNH 2 101 17 0 0 118 7.26 0.86 0 0 8.12
.
696 166 13 1022.3 188.8 138. 1434.2
Total 296 116 8878 84.09
3 2 7 7 8 906 8
100.
Percentage (%) 78 19 2 1 71 13 6 10 100.00
00

(iii) Table 2-8 indicating ‘District wise Common Property Resources
affected’.

District CPR Area of CPR (sqm)

Total Affected Extent of impact (%)

Ahmedaba Property on No area available
d Gauchar
Pond 157 140 89.17
School 288 72 25
Toilet of school 7 2 28.57
Toilet 21 21 100
Kheda
Pond 200 150 75
Temple 182 182 100
Pond 252 33 13.1
Panchayat plot – 2
NA NA NA
No
Anand Temple 90 81 90
Pond 100 80 80
Pond 200 120 60
School 360 72 20
Vadodara Temple 75.845 75.845 100
Temple 152.625 152.625 100
Temple 20.14 20.14 100
Hanuman temple NA NA
School NA NA
Panchayat land – 3
NA NA
No
Property on gauchar NA NA
land

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Society common
NA NA
Plot
Graveyard – 2 No NA NA

Bharuch Property on NA NA
Government land
Mosque NA NA
Temple 2.7 2.7 100
Navsari
Temple 6.67 6.67 100
School 10000 500 5
Handpump 4 4 100
Water Tank 7.29 7.29 100
Valsad Water Storage Tank 6.384 6.384 100
Panchayat land -2
NA NA
No
Small portion of
NA NA
school
Palghar
Temple 120 120 100

(iv) Table 2-9 indicating ‘Vulnerability Status of Project Affected
Households’.

                  Vulnerable                                         V u ln e ra b ility C a te g o r y
Elderly
Particula person 1
rs D e s titu Orpha
t Landles
Yes No BPL W HH Disable without ST SC c a te g oO th e rs
e n s
depend ry
ent
Ahmedaba 10
565 362 30 68 14 2 1 16 5 316 4 6
d 3
Kheda 240 543 84 38 23 11 2 7 0 18 55 2 0
10
Anand 324 577 120 24 2 20 10 3 5 19 11 2
8
119 10
Vadodara 634 171 41 4 2 7 9 71 130 19 75
4 5
Bharuch 351 665 71 138 20 2 0 5 5 51 37 6 16
Surat 56 584 6 3 1 0 0 0 1 14 29 2 0
11 14
Navsari 504 541 115 11 2 0 24 32 36 17 15
2 0
110 58
Valsad 944 90 158 25 3 1 4 5 60 4 5
2 9
128 311 88
Palghar 99 93 15 5 3 6 4 136 32 6
6 0 7
16
Thane 279 887 36 8 0 0 0 3 19 32 7 8
8
DNH 79 58 1 3 2 0 1 1 0 51 19 1 0
Mumbai 0 0 0 0 0 0 0 0 0 0 0 0 0
526 962 74 10
Total 915 176 31 30 83 83 2097 869 133
2 2 2 5
Percentag 35. 0.5
64.6 14.10 17.39 3.34 0.57 1.58 1.58 39.85 16.52 2.00 2.53
e 4 9

(v) Table 2-10 indicating 'Project Affected Households with breakup

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of Title Holders and Non - Title holders'.

PAH Ownership
District NTH Total
TH
Encroacher Squatter Tenant Others Total
Ahmedabad 284 39 563 21 21 644 928
Kheda 740 12 18 2 11 43 783
Anand 875 5 5 1 15 26 901
Vadodara 1378 296 17 79 58 450 1828
Bharuch 961 21 15 0 18 54 1015
Surat 584 13 17 25 0 55 639
Navsari 988 18 24 3 12 57 1045
Valsad 1621 54 220 148 3 425 2046
Palghar 2048 1197 353 771 27 2348 4396
Thane 717 175 58 182 33 449 1166
DNH 109 0 21 0 7 28 137

It is pertinent to note that in order to achieve minimum
consequential impact in terms of displacement amongst other
things, which is one of the main objectives of Social Impact
Assessment Study, the funding agency has already in advance
decided, inter-alia about the following two main aspects-

(i) Selection of a particular route, and

(ii) Bare-minimum extent of land i.e. patch of land
having width of 17.5 metres only for
accommodating the elevated corridor.

Therefore, the petitioners are not factually correct that no
record has been created to identify the extent lands as well as
number of people from different categories affected by land
acquisition process. I respectfully say that even if such an
exercise at the behest of JICA had not been carried out in the
present case in place of Social Impact Assessment, there
would not have been any illegality, more particularly when the
purpose for which Social Impact Assessment is required to be

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carried out under the Central Act of 2013, is otherwise being
taken care of in view of the project in question being linear in
nature wherein, the resultant consequential impact in terms
of displacement would be very meagre as compared to other
large projects as discussed hereinabove.

7.10 ... the State Amendment Act of 2016 has been assented
to by the Hon'ble the President and hence, the same is
protected by the provisions of Article 254 (2) of the
Constitution of India. In this view of the matter, challenge to
the provisions of the State Amendment Act of 2016 does not
survive and therefore, various grounds in detail raised by the
petitioners in this behalf do not deserve any consideration.

Para 8 : Re: B - Section 31A of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Re-Settlement (Gujarat Amendment)
Act, 2016, is ultra-vires the constitution and hence
unconstitutional. (Paras - 1B and 4.20)

8.2 ... The petitioners cannot quarrel with the exercise of
legislative power of fixing lump sum amount to the tune of
50% of the compensation determined under the Central Act of
2013 and Rehabilitation and Resettlement Cost, under section
31A. Therefore, the petitioners cannot say that instead of
50%, the said benchmark should be 60% or 80% since in that
eventuality, a question may arise as to where to draw a line of
demarcation. In such circumstance, the test, is so long as the
resultant amount of lump sum compensation to be paid as
Rehabilitation and Resettlement Cost arrived at on the basis
of the said benchmark of 50% is not illusory, which is, in fact,

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not so in the instant matter, section 31A of the State
Amendment Act 2016 cannot be questioned on the ground
that the amount so fixed or amount determined on the basis of
the said benchmark is not adequate.

9. Re: C - Initiation of Land Acquisition Process
without revising and updating the market value of the
land/s in question as mandated by section 26 of the Act
of 2013 is illegal and unconstitutional.

9.2 I categorically deny and dispute the aforesaid
interpretation of Section 26 of the Central Act of 2013 on the
part of the petitioners. I further deny that the market value of
the land/s in question in the present case is being derived
exclusively on the basis of Statement of Annual Rates (Jantri)
of the year 2011, while arriving at the market value of the
said lands in the year 2017-2018.

9.4 In furtherance of the above, I respectfully state that
sub-section (1) of Section 26 of the Central Act of 2013, read
with Explanation 1 thereto provide that in assessing and
determining the market value of the land, any of the criteria
as indicated in clause (a), clause (b) or clause (c) may be
adopted. The provision of clause (b) of sub-section (1) of
Section 26 is clear and simple inasmuch as, it provides for one
of the criteria to be adopted by the Collector in assessing and
determining the market value of the land i.e. average sale
price for similar type of land situated in the nearest village or
nearest vicinity area. Thus, sufficient methods are provided
by virtue of several Explanations to sub-section (1) of Section
26 and more particularly Explanation 1 which inter-alia

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provides for taking into account the sale deeds / agreements
to sell registered for similar type of area in the near village or
near vicinity area during immediately preceding three years
of the area year which such acquisition of land is proposed.
Thus, read the provisions of sub-section (1) of Section 26 of
the Central Act of 2013, in its entirety, it becomes clear that
the Central Act of 2013 provides for sufficient guidelines to be
adopted for assessing and determining the market value of
land to be acquired.

9.6 In the above connection, I further state that the State
Government, in its Revenue Department, has issued two
Government Resolutions, both dated 11.9.2018, inter alia,
clarifying the issues as regards the parameters to be observed
while determining the compensation under the Central Act of
2013. I respectfully say that vide Government Resolution
No.LAQ/2018/1976/GH dated 11.9.2018, the State
Government has resolved that the farmers who are willing to
offer their lands with consent as contained in the Government
Resolution dated 4.4.2018 of the Revenue Department and if
the acquiring body is ready and willing to pay compensation
by adopting 'indexation formula', then in those cases,
indexation formula be applied to the Annual Statement of
Rates, 2011 i.e. 2011 Jantri. Copies of the aforesaid
Government Resolutions, both dated 11.09.2018 are annexed
herewith and collectively marked as Annexure-X (colly.). It
is further respectfully stated that the aforesaid indexation
formula has its roots in "Cost Inflation Index (CII)" notified
by the Central Government for the F.Y. 2018-19 at Rs.280,
with the Base Year 2001-02 (with Cost Inflation Index at
Rs.100) vide notification No. S.O.1790 (E) dated 05.06.2017, a

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copy whereof is annexed herewith and marked as Annexure-
XI. Pertinently, Income Tax Department applies the said
formula relating to indexation for the purpose of determining
long term capital gains, wherein it is likely that the investors
in property stand to gain in most of the cases with the shifting
of the base year from F.Y. 1981-82 to F.Y. 2001-02. It is
further submitted that if the aforesaid Cost Inflation Index
formula is applied to Annual Statement of Rates, the farmers
will be getting compensation approximately 50-60% on higher
side.

9.7 In order to appreciate the aforesaid aspect of the matter,

I may refer to hereunder, a hypothetical example for better

understanding:

Suppose, the total Jantri of the parcel of land is
Rs.10,00,000/- in the Financial Year 2011-12, then
in that case, its present day i.e. 2018-2019 value i.e.
Compensation amount can be worked out as under:

  Indexation of FY 2018-                                    Rs.280
19 (A) (which value was taken as
Rs.100 in the year 2001-
02)
Indexation of FY 2011- Rs.184
12 (B) (which value was taken as
Rs.100 in the year 2001-
02)
Jantri Value of FY Rs.10,00,000/-
2011-12 (C)
Compensation to be
awarded 10,00,000 x 280
(C X A B) Rs.15,21,739/-
180
Percentage Increase 52.17%

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9.8 It is worthwhile to mention at this stage that, much
larger proportion of land owners whose lands are proposed to
be acquired, have offered their lands by consent for the
reason that there is a provision of indexation and additional
payment of 25% extra on land value for land owners offering
the land by way of consent. In order to appreciate this aspect
of the matter, I crave leave to annex herewith and collectively
mark as Annexure-XII (colly.), two charts viz. (i) A chart
containing details of some of the land owners of Village:

Chansad, Taluka: Padra, District: Vadodara where, they had
volunteered to allow the acquisition of their lands by way of
consent whereupon, 80% of the compensation amount has
already been paid to them pending the declaration of award,
and (ii) A chart containing details of some of the land of
Village: Geratpur, Taluka: Daskroi, District: Ahmedabad
where, they had volunteered to allow the acquisition of their
lands by way of consent whereupon 80% of the compensation
amount has already been paid to them pending the
declaration of award.

9.9 For a better understanding, I may take the instance of a
land owner called Patel Dineshbhai Parshottambhai in the
first chart referred to above at Sr. No.1, having land bearing
Survey No.1476, admeasuring about 972 sq.mtrs., whose
Jantri value is 935/- per sq.mtrs. where, while applying
indexation formula, the market value comes to the tune of Rs
1422.79 per sq.mtr. and ultimately, after considering the
payment of 25% extra + application of factor 2 (i.e.
Rs.1422.79 x 2 2845.58) + 100% solatium, totaling to the
tune of Rs.6048.86 per sq.mtr. which works out to total
amount of Rs.58,77,547.92. If indexation formula had not

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been applied and 25% extra payment had not been made, the
said value could have come to the tune of Rs.36,35,280, giving
rise to a difference of Rs.22,52,267. Similarly, in the second
chart against prevailing Jantri rate of Rs.900/- per sq.mtr. of
land, average sale price for similar type of land situated in the
nearest vicinity area comes to the tune of Rs.1466/- per
sq.mtr. and while applying indexation formula, the said rate
has come to the tune of Rs.1369.62 per sq.mtr. of
compensation. Pertinently, the major difference between the
said two charts lies in the fact that in the former chart, it was
the Jantri rate of the land which was higher as compared to
average sale price, whereas in the later chart, it is the
average sale price of similar type of land which was higher
than the Jantri rate.

10. Re: D - Violation of provisions of Gujarat Stamp
Act, 1958 read with Gujarat Stamp (Determination of
Market Value of Property) Rules, 1984 as amended by
the notification dated 21st March, 2016. (Paras - 1D and
4.35 to 4.37)

10.1 Petitioners' grievance against the alleged violation of the
provisions of the Gujarat Stamp Act, 1958 ("the Stamp Act"
for short) read with Gujarat Stamp (Determination of Market
Value of Property) Rules, 1984 ("the Rules" for short) as
amended by Notification dated 21.03.2016 is absolutely
misconceived, erroneous and besides the controversy sought
to be raised in the captioned writ petition.

10.2 It is true that as per the new Rule 5 of the Rules, Annual
Statement of Rates showing average rates of lands etc

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situated at every Taluka, Municipal Corporation or local body
area, would be prepared and submitted for approval of the
Revenue Department latest by 31st October in each year. The
said Rule 5 also provides for an eventuality as to what should
be done if exercise relating to such preparation and approval
is not undertaken. In that view of the matter, even otherwise,
whilst assuming without admitting that the aforesaid exercise
as required by Rule 5 of the Rules is not undertaken, then in
that case also, as discussed hereinabove in paras 8 to 8.7, it is
very much possible to determine the true market value of the
lands in question. Under the circumstances, I categorically
deny that non-revision of the market value is illegal in terms
of section 26 of the Central Act of 2013 as well as in terms of
section 32A of the Stamp Act, as alleged or otherwise. So far
as section 32A of the Stamp Act is concerned, it provides for
determination of market value of property which is the subject
matter of conveyance, etc, according to which, when any
instrument or conveyance, etc. is produced before the
authority for registration, and if registering authority has
reason to believe that the consideration set forth therein does
not approximate to the market value of the property, then in
that case, same is to be referred to the Collector of the
District where the property is situated for determining the
true market value of such property and the appropriate duty
payable on the instrument. It is not understandable as to
how non-revision of the market value by the State would be
violative of the provisions of section 32A of the Stamp Act.

11. Re: E - The Gujarat Amendment Act, 2016 is ultra-
vires the Constitution including Article 254(2) of the
Constitution of India. (Paras - 1-E, 4.38, 4.39)

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11.1 Adverting to the challenge of the petitioners against the
validity of the assent to the Bill of 2016 by the Hon'ble
President, I may set out hereunder in the chronological
manner, the factual narration as regards the passing of the
Bill by the Gujarat Legislative Assembly followed by
submission thereof for the kind consideration of H.E. the
Governor and the aspect of reserving the Bill of 2016 for the
consideration of the Hon'ble the President in view of some of
the provisions thereof being repugnant to the provisions of
the Central Act of 2013.

 SN          Date                            Particulars
o.

(1) 31.03.20 The Right to Fair Compensation and
16 Transparency in Land Acquisition,

Rehabilitation and Resettlement (Gujarat
Amendment) Bill, 2016 came to be
passed in the Legislative Assembly.

(2) 26.04.20 The Legislative Parliamentary Affairs
16 Department of the State Government
addressed a communication to the
Principal Secretary to the Hon'ble the
Governor, forwarding therewith the copy
of the aforesaid Bill by inter alia
informing that the provisions of the Bill of
2016 are repugnant to the provisions of
the Act of 2013, which is an existing law
falling under Entry 42 in the concurrent
list, it is, therefore, necessary to reserve
the Bill of 2016 for the kind consideration
of the Hon'ble the President as per
Article 254(2) of the Constitution of India.

Annexed hereto and marked as

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SN Date Particulars
o.

Annexure-XIII is a copy of the said
communication dated 26.04.2016 along
with its enclosures, addressed by the
Legislative Parliamentary Affairs
Department to the Principal Secretary to
Hon'ble the Governor of Gujarat.

(3) 21.05.20 The office of the Secretary to the Hon'ble
16 the Governor addressed a letter and sent
the Bill of 2016 to the Secretary, Ministry
of Home Affairs, Government of India
inter alia requesting to obtain the assent
of the Hon'ble the President to the Bill of
2016 under reference.

Annexed hereto and marked as
Annexure-XIV is a copy of the said letter
dated 21.05.2016 addressed by the office
of the Principal Secretary to Hon'ble the
Governor of Gujarat to the Secretary,
Ministry of Home Affairs, Government of
India.

(4) 08.08.20 After the receipt of the request by the
16 office of the Hon'ble the Governor for the
assent of the Hon'ble the President to the
Bill of 2016, ultimately the assent came
to be accorded by the Hon'ble the
President to the Bill of 2016.

Annexed hereto and marked as
Annexure-XV is a copy of the assent
accorded by the Hon'ble the President to
the Bill of 2016.

(5) 10.08.20 The Ministry of Home Affairs,
16 Government of India, addressed a letter
returning the authenticated copies of the
Bill with the Hon'ble President's assent

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SN Date Particulars
o.

dated 08.08.2016 signifying thereon
under Article 201 of the Constitution of
India.

(6) 12.08.20 The office of the Secretary, to the
16 Governor of Gujarat in turn, forwarded
the said letter dated 10.08.2016 of
Ministry of Home Affairs returning the
Bill with the President's assent to the
Secretary, Legislative and Parliamentary
Affairs Department.

Annexed hereto and marked as
Annexure-XVI is a copy of the said letter
dated 12.08.2016 addressed by the office
of the Secretary to the Governor of
Gujarat to the Secretary, Legislative
Parliamentary Affairs Department.

(7) 12.08.20 The State Government, in exercise of the
16 powers conferred under Sub-section (2)
of Section 1 of the Amendment Act of
2016, appointed "15.08.2016" as the date
on which the Amendment Act of 2016
shall come into force.

(8) 15.08.20 The State Amendment Act of 2016 came
16 to be implemented.

11.2 In view of what is stated hereinabove, I respectfully state
that as the Bill of 2016 has been accorded the assent by the
Hon'ble the President on 8th of August, 2016, this Hon'ble
Court, in exercise of its powers conferred under Article 226 of
the Constitution of India may not like to judicially review the
validity of such assent. Further, from the contents of the
aforesaid letter dated 26.4.2016, it is clearly discernible that
the Hon'ble President was apprised about the provisions of
the Bill of 2016 being repugnant to the provisions of the

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Central Act of 2013. Ultimately, as aforesaid, the assent came
to be accorded to the Bill of 2016 on 08.08.2016, which was
brought into effect by the State Government vide a
Notification issued in exercise of the powers conferred by the
sub-section (2) of Section 1 of the State Amendment Act,
2016.

12. Re: F - The Gujarat Amendment Act, 2016 is
violative of Section 107 of the Central Act of
2013 (Paras - 1F and 4.38).

12.2 ...the rationale underlying Section 107 of the Central Act
of 2013 has nothing to do with the Social Impact Assessment.
I reiterate that the need for conducting Social Impact
Assessment is only for the purpose of recommending such
area for acquisition which would ensure - (i) minimum
displacement of people, (ii) minimum disturbance to the
infrastructure and ecology, and (iii) minimum adverse impact
on the individual affected. In view of the project in question
being linear in nature, all the aforesaid aspects are even
otherwise taken care of.

12.3 ...mere absence of Social Impact Assessment, more
favourable and beneficial provisions of the State Amendment
Act of 2016 will not go in vain and will be very much operative
independent of SIA. I do not admit that unless SIA is not
done, there is no mechanism to recognise the affected
petitioners, which will in turn take away their right of
compensation and rehabilitation.

13. Re: G - While departing from provision/s of law as

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laid down by the Parliament, it is required and is rather
a relevant consideration that such local condition
prevailed in the particular State so as to call for a
departure from the Central Enactment. (Paras- 1G and
4.39)

13.1 The aforesaid contention of the petitioners is misplaced
and without any basis inasmuch as, if one peruses the SOR of
the State Amendment Act of 2016, it clearly spells that the
amendment has been effected in furtherance of providing the
infrastructure facilities to the public at large. However, the
interest of the persons whose land has been acquired has
been kept intact and the paramount objective is to see that
the rights of the persons are not interfered with. Thus, the
provisions of the State Amendment Act of 2016 aim at
achieving the desired objective and at the same time,
balancing the rights of all the citizens.

13.2 I respectfully say that the essential ingredients of Article
254(2) of the Constitution of India in the matter of seeking
assent of the Hon'ble the President with reference to any
State law are: (i) mentioning of Entry / Entries with respect to
one of the matters enumerated in the Concurrent List; (ii)
stating repugnancy to the provisions of an earlier law made by
the Parliament and the State law and reasons for having such
law; (iii) thereafter, it is required to be reserved for
consideration of the Hon'ble the President; and (iv) receipt of
the assent of the Hon'ble the President.

13.3 Under the circumstances, though local condition may be
one of the factors to be taken into account in a given case in

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the matter of grant of assent by the Hon'ble the President, the
same is not essential factor and the essential factors are only
those which are referred to hereinabove and which are
required to be present in the matter for the grant of assent by
Hon'ble the President.

14. Re: H - The Gujarat State Amendment Act, 2016
was enacted despite of the preceding Ordinances of the
Central Government enacting similar provisions not
having passed the majority test in the Parliament.
(Paras -1H and 4.40)

14.1 The very fact of the Central Government having come
with the Ordinance containing similar provisions is suggestive
of one thing that provision regarding exemption from the
requirement of Chapter II and Chapter III of the Central Act of
2013 was not an abnormal provision that can never be
thought of. Union Parliament as well as the State Legislature,
both are competent to bring such provisions and the Central
Government did try to do the same initially by issuing the
Ordinance dated 30.05.2015, which did not go further, but
ultimately, Gujarat State Legislature passed the Bill relating
to the State Amendment Act of 2016 containing similar
provisions, by virtue of its powers pursuant to the provisions
of Entry 42 of the Concurrent List. Moreover, the State
Amendment Act of 2016 has also been assented to by the
Hon'ble the President, and thus, the same is saved by the
provisions of clause (2) of Article 254 of the Constitution of
India.

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16. Re: J - Section 40(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Gujarat Amendment)
Act, 2016 is ultra vires the Constitution and hence
unconstitutional. (Paras - 1J and 4.44 to 4.47)

16.1 Pertinently, petitioners' challenge against section 40(2)
of the State Act of 2016 is academic in nature, since the same
deals with the special powers in case of urgency to acquire
land and the same has not been invoked in the present case.

16.2 Without prejudice to what is mentioned above, I
respectfully say that the grounds raised while challenging the
validity of section 40(2) of the State Act of 2016 are as vague
as they can be. In fact, it is well settled proposition of the law
that while challenging any of the provision, the party
aggrieved is obliged to set out the grounds with utmost
precision supported by the sufferance. However, the
grievance raised by the petitioners in the captioned writ
petition, has even remotely no connection with the provisions
of section 40(2) of the State Amendment Act of 2016 and on
this ground alone, the challenge to the validity of section
40(2), deserves to be rejected at the threshold. Even
otherwise, if one peruses the language of section 40(2), it
speaks about special powers in case of urgency to acquire
land in certain cases and that the appropriate Government
has been clothed with the powers to give direction to the
Collector for taking possession of any land needed for public
purpose. Pertinently, the State legislature derives its
competence to enact law vide Entry 42 of Concurrent List and

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thus, the appropriate Government, by virtue of the provisions
of sub-section 2 of Section 40 has to comply with the direction
given by the Central Government to the State Government as
the case may be. Thus, the said provision, in the facts of the
present case, does not affect any of the rights, legal or
fundamental, of the petitioners coupled with the fact that the
petitioners are not subjected to any sufferance by said
provisions. In this view of the matter, as aforesaid, challenge
to the provisions of sub-section 2 of Section 40 of the State
Amendment Act 2016 does not merit acceptance and deserves
to be rejected.

5. Before actually coming to the grounds of the challenge
raised in the petition, Senior Counsel Mr. Mihir Joshi, has
briefly outlined the contours of the controversy at hand before
us.

5.1 According to Shri Joshi, the new Act i.e. The Right To
Fair Compensation And Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 ( for short 'Act of
2013') is far different than the Land Acquisition Act, 1894 (for
short 'Act of 1894'). In the Act of 2013, there is a shift and a
strong emphasis to balance the "public purpose" of
acquisition viz-a-viz the "social impact" or societal loss that
such an acquisition would cause on the land owner/occupier.
Merely because of the stakes of a project, there will not be the
overwhelming desire or "public interest" for acquisition of
land, without evaluating the impact on the society. A large
part of the decision making process on the acquisition is
governed on the Social Impact Assessment, an appraisal to

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evaluate social costs versus public interest.

5.2 Mr. Joshi would further submit that in the facts of the
present case, where lands are sought to be acquired for
implementation of the vanity "Mumbai Ahmedabad High
Speed Bullet Train" by issuance of a preliminary notification
under Section 11 of the Act of 2013, it shows that the entire
exercise is pre-conceived, pre-determined to acquire the
lands. Before the process of acquisition, agreements were
signed, meetings were held under the auspices of Niti Ayog,
Memorandum of Co-operation was signed and agreements
were entered into. The whole exercise therefore is an idle
formality and a lip service to the Act of 2013.

5.3 Briefly delving into the grounds of challenge to the
insertions of Sections 10A and 31A of the Act of 2013, Mr.
Joshi contended that the new Act of 2013 contemplates the
determination of social impact and public purpose. The
Parliament, in its wisdom thought it was imperative, however,
the amendment of leaving out this entire exercise and
exempting to project from such assessment at the hands of
the State Executive, dispensing with the SIA is directly in
conflict with the purposes for which the Act of 2013 was
enacted by the Parliament.

5.4 Conceding to the fact that powers flowing from Entry 42
of the Concurrent List, the Union and the State, both, are
empowered to enact law relating to "acquisition and
reacquisition", the exercise of insertion of Sections 10A and
31A are in direct conflict with the provisions of Chapter II of
the Act of 2013 and Sections 9 and 40 of the Act of 2013. The

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Presidential Assent, under Article 254(2) can be a subject to
restricted judicial review but the Court can, assuming that
validity of the assent is valid, look into whether in obtaining
such assent, specific attention of His Excellency, the
President, was drawn to the provisions of Sections 9 and 40 of
the Act of 2013.

5.5 According to Mr. Joshi, there was no overwhelming need
to overcome the statutory principles for which the Act of 2013
was enacted merely because in the perception of the State,
the project was important and was in public interest for a
public purpose. Admittedly, according to the submissions of
the learned Senior Counsel, Mr. Joshi, lands to be acquired for
the project are in Gujarat, Maharashtra and in Dadra Nagar
Haveli and therefore the "appropriate government" under
Section 3(e)(iv) is the Central Government. The notification is
issued by the State Government. Pending the petition, the
Ministry of Railways issued a notification under Article 258(1)
of the Constitution of India by which the executive
power/function of the Central Government under Act of 2013,
has been delegated in the State of Gujarat. While the entire
exercise under Chapters II and III of the Act of 2013 has to be
done at the hands of the Central Government, the exercise of
exempting the project from such chapters is done by the
State. It is, according to Mr. Joshi, an exercise of excessive
delegation of legislative powers. No exemption can be sought
from the SIA merely because the project is linear.
Justification of exempting linear projects under the cloak of
powers under Section 105 of the Act of 2013 read with the
Fourth Schedule thereof is wrong as it does not fall within the
Schedule.

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5.6 Mr. Joshi, learned Senior Counsel has invited our
attention to the preamble of the Act of 2013 laying emphasis
that the purposes of the enactment was for a more humane,
participative, informed for development of essential
infrastructure facilities. The project on hand could not be an
essential infrastructural facility no matter how important it
was perceived to be. Taking us through the provisions of the
Act of 2013, Mr. Joshi, learned Senior Counsel drew our
attention to the specific provisions as under:

(i) Sections 2(a) and 2(b) in context of the use of lands in
context of the public purpose which shall include
purposes listed in Sections 2(a) and 2(b) (i) to (vii).
Merely because a project is termed as a mega project, in
Mr. Joshi's submission, that itself does not exempt the
authorities from following the mandate of Act of 2013.
The necessity to carry out a Social Impact Assessment
and the participative process to do so is evident from the
provisions of Chapter II of the Act of 2013.
Rehabilitation and Resettlement are important areas of
consideration of affected families.

(ii) Section 3 of the Act contains definitions which
include the definition of the term "appropriate
government" in sub-section (e) of Section 3. He drew
our specific attention to Section 3(e)(iv) which reads as
under:

3(e) appropriate government:-

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(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

(iii) Drawing our attention to the definition of "cost of
acquisition" in Section 3(i), Mr. Joshi submitted that
such costs include the costs for settlement of displaced
or adversely effected families. The social impact of
displacement therefore goes into the cost of acquisition.

(iv) Section 3(o) defines "infrastructure project" as
specified in clause (b) of sub-section (1) of Section 2.
Mr. Joshi, then invited our attention to the definition of
"public purpose" in Section 2(za) which means activities
specified under sub-section (1) of Section 2 which does
not include project like the one under challenge. Our
attention was also invited to Sections 3(zb) and 3(zc)
pertaining to "Requiring Body" and "Resettlement area"
respectively.

(v) Great emphasis was laid on the provisions of Chapter
II of the Act of 2013 which provides for determination of
Social Impact and Public Purpose. In Mr. Joshi's
submission, whenever the appropriate government
intends to acquire land for public purpose, it shall
consult the local authorities and carry out Social Impact
Assessment study in consultation with them. Attention
was drawn to the factors that the Social Impact
Assessment study would include as provided in sub-

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section (4) of Section 4 of the Act of 2013.

(vi) Section 5 provides for public hearing for SIA.

(vii) Even after such an exercise, Section 7 provides for
appraisal of Social Impact Assessment report by an
expert group. If the expert group would opine that the
project does not serve public purpose or that the social
costs and adverse social impacts outweigh the potential
benefits and inspite of such recommendations if the
appropriate government proceeds with acquisition, it
must record reasons for doing so.

(viii) Section 8 provides that the appropriate government
shall examine proposal for land acquisition and Social
Impact Assessment Report. It should consider
acquisition keeping that such acquisition would ensure
minimum displacement of people.

(ix) Attention was invited to Section 9 which provides
that where land is proposed to be acquired invoking the
urgency provisions under Section 40, the appropriate
government may exempt undertaking of the Social
Impact Assessment study. Drawing our attention to
Section 40, Mr. Joshi submitted that special powers of
urgency to acquire land is only restricted to the cases
where land is required for the defence of India or
national security or for any emergencies arising out of
natural calamities or any other emergency. None of the
parameters in the project purpose on hand stand
satisfied.

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(x) Inviting our attention to Chapter III of the Act which
provides for special provision to safeguard Food
Security, Mr. Joshi drew our specific attention to the
proviso to Section 10 and submitted that the safeguards
would not be applicable to cases where acquisition is for
projects linear in nature. Therefore, where exemption is
specifically provided, it applies only viz-a-viz
consideration of food security and not to SIA.

(xi) Section 11 falling under Chapter IV deals with
notification and acquisition. Drawing our attention to
sub-section (3) of Section 11, Mr. Joshi submitted that
the notification issued should contain nature of public
purpose, reasons necessitating displacement and
summary of the Social Impact Assessment report.
There is therefore an overwhelming emphasis on the SIA
in the entire exercise preceding issuance of a
preliminary notification which is absent in the present
case.

(xii) Inviting our attention to the provisions of Sections
11 to 16 of the Act of 2013, Mr. Joshi learned Senior
Counsel submitted that the exercise under Section 11 is
based on the SIA and even after such report there is a
stage of hearing persons interested with regard to the
findings of the SIA report which underlines the
importance of the exercise before undertaking the
exercise of acquisition. Rehabilitation and Resettlement
schemes have to be put in place.

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5.7 Mr. Joshi invited our attention to Sections 23 to 26 of the
Act of 2013 in connection with the determination of the
market value of land by the Collector. The market value of
the land to be acquired must be assessed from the year 2017.
The Collector ought to have updated and revised the jantri.
The Annual statement of rates showing the market value of
immovable properties have been stagnant since 2011
therefore even if the defence of the Government is of having
fixed sale price on basis of sub-section (b) of Section 26, the
true market value would not be reflected in absence of
updation of market value by the Collector. Section 26 proviso
mandates 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
prevalent market rate in the area.

5.8 Attention is invited to the statement of objects and
reasons for insertion of Section 10A (Page 142140). No
public purpose or public interest is served, in Mr. Joshi's
submission for providing basic infrastructural facilities and
merely because the provisions of the Act of 2013 have
stringent provisions and land acquisition has become lengthy
and difficult proposition, it would not warrant doing away with
Social Impact Assessment. While assailing the decision
making process undertaken by virtue of Article 254(2), Mr.
Joshi submits that the statement of objects and reasons
together with the previous provisions was not put before His
Excellency the President together with Sections 9 and 40 of
the Act of 2013 leading the President to look into the
necessity of acquiring such land.

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5.9 Our attention was drawn to the provisions of Article
254(2) of the Constitution of India. Pages 271 and 272 are
read before us of the paper book of Special Civil Application
No. 9864 of 2018. On record is a communication dated
26.04.2016 issued by the Legislative and Parliamentary
Affairs to the Principal Secretary to Governor to Gujarat. It is
Mr. Joshi's submission that it is not disputed that the subject
matter falls under Entry 42 in List III of the Seventh Schedule
of the Constitution of India. He submits that from the papers
annexed, it can safely be presumed that the Statement of
Objects and Reasons has not accompanied the dossier before
His Excellency the President of India. Comparative statement
at Page 275 onwards suggests that while inserting Section
10A, Sections 9 and 40 and provisions of Chapter II are not
brought to the attention or pointed out to the President so as
to make the assent under Article 254(2) justifiable. The
Schedule II and Section 107 of the Act of 2013 too have not
been pointedly drawn attention of while inserting Section 31A
of the Amending Act 2016.

5.10 In context of the ambit of judicial review to the assent of
the President under Article 254(2) of the Constitution of
India,our attention is invited to the decision of the Supreme
Court in the case of Kaiser-I-Hind Pvt. Ltd and Another vs.
National Textile Corporation (Maharashtra North) Ltd.
and Others reported in (2002) 8 SCC 182. Paragraphs no.
14 to 28 of the judgement are relied upon to point that

(a) before obtaining assent of the President, State
Government has to point out so that there is active
application of mind by the President to the repugnancy

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of the proposed State law and the law made by the
Parliament;

(b) the President should apply his mind to what the
Parliament has enacted and also consider the local
conditions prevailing in a particular state.

These inputs in the case on hand are apparently absent
and therefore within the parameters of judicial review
available to the Court. In absence of the State pointing out the
repugnancy, which is a "sine qua non" for "consideration" or
"assent", the "assent" without looking into such aspects is bad
(Essential ingredients as mentioned in para 27 of the
judgement in Kaiser Hind are missing)

5.11 Mr. Joshi, learned Senior Counsel invited our attention
to the notification dated 09.04.2018 issued under Section 11
of the Act of 2013, which was at page 53/55 of the paper book
of Special Civil Application No. 9864 of 2018. Drawing our
attention to paragraph no. 4 of the said notification, it was
submitted that it clearly indicates that the Government of
Gujarat if satisfied about acquisition of the land for the
purpose of Mumbai-Ahmedabad High Speed Rail Project, may
publish a final declaration under Section 19. This therefore
indicates that the State Government has exercised such
powers under Section 11(1) which is clearly contrary to law as
in accordance with the provisions of Section 3(e)(iv) the
"appropriate government" is the Central Government.

5.12 Petitions challenging this notification were filed in July
2018 on the ground that prior to the issuance of such
notification there was no revision of ASR. Pending such a

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challenge now what appears is that on 08.10.2018, in exercise
of powers conferred by clause (1) of Article 258, the
President, with the consent of Government of State of Gujarat
issued a notification entrusting and stating that all the actions
taken by the Government of Gujarat in relation to acquisition
of land within the territory of Gujarat for the aforesaid
purpose shall be deemed to have been taken for and on behalf
of the Central Government and shall be deemed to be legal
and valid for all purposes. Drawing our attention to the
provisions of Article 258 of the Constitution of India, Mr. Joshi
would contend that the language indicates that the President
may with the consent of the Governor of the State entrust
functions in relation to any matter to which the executive
power of the Union extends. The word used is "entrust".
Nowhere, is the intention of the power under Article 258,
which suggests that it "authorises" or "validates" an action
already taken, as the facts of the present case reveal. In the
case on hand, Mr. Joshi submits that a preliminary notification
is already issued on 09.04.2018. The purport of the word
"entrust" can only mean actions which are taken henceforth in
future hereinafter. Entrustment cannot be retrospective, of
an act done previously. Powers therefore under Article 258 of
the Constitution of India cannot be used to "authorise" or
"validate" something already done because that is clearly not
"entrustment".

CHALLENGE IN CONTEXT OF POWERS UNDER
ARTICLE 258 Re: Notification dated 08.10.2018

5.13 Mr. Joshi, learned Senior Counsel submitted that Article
258 indicates that notwithstanding anything in this

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Constitution, the President may, with the consent of the
Governor of a State entrust to that Government, functions in
relation to any matter to which the executive power of the
Union extends. Inviting our attention further to clause (2) of
Article 258, Mr. Joshi submitted that as far as making of laws
is concerned such power is conferred upon the State in
context of laws made by the Parliament notwithstanding that
it relates to a matter in respect of which the State Legislature
has no power to make laws. Conferment of powers is only in
the matter where the State in such matter has no power to
make laws. In the case of hand, the subject matter falls in the
Concurrent List at Entry No. 42.

5.14 In the context of clause (a) which speaks of entrustment
of functions in relation to any matter to which the executive
power of the Union extends, Mr. Joshi, invited our attention to
the provisions of Article 73 which enumerates the extent of
executive power of the Union. Article 73 provides that subject
to the provisions of the Constitution, the executive power of
the Union shall extend (a) to the matters with respect to
which the Parliament has power to make laws and (b) to the
exercise of such rights exercisable by the Government of India
by virtue of any treaty or agreement. According to Mr. Joshi,
the extent of the executive power in matters with respect to
which the Parliament has power to make laws gets
circumscribed by the proviso which suggests such power shall
not, save as expressly provided in this Constitution, or in any
law made by the Parliament, extend in any State to matters
with respect to which the Legislature of the State has also
power to make laws. Therefore, the power of the Executive,
in which matters where the Parliament has powers to make

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laws cannot go into or beyond the borders of matters which
fall within the Concurrent List. The power has to stop at the
borders of the Concurrent Sphere. Once the limits are bound,
as so provided in the Constitution by the saving clause i.e.
save as expressly provided in the Constitution, likely recourse
to exercise of powers under Article 258 merely because the
Article's language begins with the non-obstante clause
notwithstanding anything in this Constitution, would not
extend the executive power beyond what the Constitution
permits. There can also be a delegation of such power only to
a point wherever such executive power extends. Section 3(e)

(iv) is a provision of law which says that the Central
Government alone is the appropriate government. When
there is no power or no law which empowers the State
Government to be the appropriate government, there can be
no entrustment to extend the executive power to the State.

5.15 Mr. Joshi further submitted that assuming that there is
an implied entrustment with retrospective effect, once
issuance of a notification under Section 11(1) is done by the
State Government which is non-est, such an act, which is non-
est cannot be revised by such exercise. Once it is admittedly
clear that the appropriate government is the Central
Government, there cannot be an act validating something
which is contrary to law. The exercise runs counter to and in
fact overruns the provisions of the Act of 2013.

5.16 Elaborating further, how the entire exercise is a pre-
determined one and therefore goes against the mandate of the
law, Mr. Joshi, briefly invited our attention to the various
paragraphs of the Statement of Objects and Reasons of the

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Act of 2013. The Act emphasizes on the social costs of
acquisition, provides for just and fair compensation,
restricting the scope of acquisition of land for strategic
purposes vital to the State. There is a process of consultation
with institutions of local self-government for a more humane,
participative, informed and transparent process of land
acquisition. The process of land acquisition has to be set in
after assessing the "public purpose - public interest" with
social costs and then a reasoned decision needs to be taken.
Inviting our attention to the affidavit-in-reply, particularly
pages 178 and 179, Mr. Joshi submitted that without any such
exercise, a pre-determined decision was taken that the land is
needed for the project. Meetings were held between the
dignitaries of the two countries in May 2013, announcement
was made, JICA submitted a joint feasibility report in July
2015. A memorandum of Co-operation was signed in
December 2015 for implementation of the project. There was
therefore a fait accompli. National High Speed Rail
Corporation was formed in 2016 to design and operate High
Speed Rail. In Mr. Joshi's submission, under the old Land
Acquisition Act, the government was the sole arbiter of the
need to acquire land. The Act of 2013 has undergone a
structural change. A structural process has been put into
place which needs to be undertaken before the decision is
taken. The purposes for which the land is required is well
marked in sub-section (b) of Section 2. Chapter II which
begins with Section 4 requires the appropriate government to
consult local bodies and carry our Social Impact Assessment
whenever there is an intention to acquire the land. Even
before the exercise is so undertaken, a decision is taken to
acquire land, plans are charted out, a structure is put in place,

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presenting a fait accompli, without assessing the social costs
etc., as mandated under the Act of 2013. The compliance of
the provisions of the Act of 2013 is a mere lip service. There
are stages of SIA and particularly sub-section (5) of Section 7
provides that an expert group will opine on the potential
benefits and weigh the social costs. All this has been given a
go-by.

5.17 The authorities have directly pole vaulted into issuing a
preliminary notification under Section 11 of the Act of 2013.
Acquisition is enforced without undertaking the process of
hearing of objections as so provided under Section 15 of the
Act of 2013.

5.18 According to Mr. Joshi, the farmers are faced with a fait
accompli. In July 2015, a joint feasibility report was
submitted. In December 2015, there was an agreement with
the Government of Japan. In February 2016, the Special
Purpose Vehicle was formed, discussions went on from March
2016 to December 2016 and a Memorandum of Undertaking
was signed on 12.01.2017. On 31.03.2017, the Railway Board
wrote a letter to the Chief Secretary, State of Gujarat saying
that land surveys have been undertaken to firm up the
alignment and the actual process of acquisition is to start. A
dedicated land acquisition officer is sought to be appointed.
Attention is drawn to a communication dated 25.04.2017
where officers for land acquisition are appointed by
designation as competent authority under the Land
Acquisition Act. A communication dated 09.10.2017 refers to
the time line being set for completion of the Project after a
ground breaking ceremony has been held on 14.09.2017.

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5.19 An exemption notification under Section 10A is issued on
06.02.2018. All these factors indicate that the entire exercise
is pre-determined. The entire exercise is dehors the
provisions of the Act of 2013. The entire exercise obviates
fair consideration of objections and therefore not only violates
fundamental rights but the right to property as envisaged
under Article 300A of the Constitution of India.

CHALLENGE TO NOTIFICATION UNDER SECTION 11(1)

5.20 Next, Mr. Joshi has focused his challenge to the
Notification dated 09.04.2018 issued under Section 11(1) of
the Act of 2013. The notification so issued is as submitted, by
the State Government and therefore non-est, as the
appropriate government is the Central Government. The
notification is issued by an authority which is not competent
to do so. Inviting our attention to the response filed by the
State at pages 188 (para 8.2) it was submitted that it is even
admitted by the State that the appropriate government is the
Central Government. The reply suggests that the notification
dated 09.04.2018 has been issued by the State Government at
the behest of the Central Government under Section 11(1) of
the Act of 2013. The argument of the State is that the lands
fall within the State of Gujarat and therefore the appropriate
government is the State. Such an argument is negated when
a validation notification is issued on 09.10.2018. Such
validation is bad as there can be no entrustment of past.
Entrustment has to be of future actions. In any case
validation and entrustment can be with retrospective effect.
Reliance in support is placed on judgement in the case of

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Income Tax Officer, Allepey vs. M.C. Ponnoose and
Others reported in (1969) 2 SCC 351, especially
paragraph no. 7 of the judgement.

5.21 While exercising powers under Article 258 of the
Constitution of India, no reference is made to the provisions of
Section 10A. The act therefore at best validates notification
under Section 11 and not the exercise of insertion of Section
10A. Under the Act, it is the Central Government, which is
the appropriate government. A validation is done in exercise
of powers under Article 258 by the President, whereas it is the
State Government which has undertaken the exercise of
arriving at a satisfaction that SIA has to be done away with.
The question is can the State's satisfaction of doing away with
SIA be termed as valid when the Central Government is the
appropriate government.

RE: CONSTITUTIONAL VALIDITY OF INSERTIONS OF
SECTION 10A OF THE AMENDING ACT OF 2016

5.22 In Mr. Joshi's submission, though the subject matter of
the law i.e. land acquisition falls in the Concurrent List, the
Legislature lacks competence to enact the Amending Act. The
question is, whether there can be a law contrary to the policy
of the Central Legislation? The Amending Act, which takes
out Chapter II and III of the Central Act are bad because they
completely ignore and are without reference to the
social/local necessities. The power vested under Article 254
of the Constitution of India cannot be used in principle to
enact a State law contrary to the law enacted by the
Parliament.

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5.23 Reading Article 254(2) of the Constitution of India, Mr.
Joshi submitted that the same gives guidance on the scope
and ambit of the power. A law can be made which may be
conflicting but there must be sound reasons to justify the need
for framing such a legislation. According to Mr. Joshi, if the
documents attached to the letter forwarding the consideration
to His Excellency the President are seen, they are entirely
silent on the exact needs and reasons as to why inspite of its
repugnancy to the Central law, it needs to be framed. In
absence of such reasons and consideration, the insertion of
Section 10A is beyond legislative competence. In support of
this submission, Mr. Joshi relied on a decision of the Bombay
High Court in the case of Basantilal Banarsilal vs. Bansilal
Dagdulal, reported in AIR 1955 Bombay 35. Our
attention was drawn to paragraph no. 3 of the judgement to
contend that the President while giving assent should apply
his mind to the local conditions prevailing in a particular State
and if he is satisfied that judging the local conditions a
particular State may be permitted to make a provision of law
different from the provision made by Parliament. Plenary
powers cannot be used to overstep the spirit of the Central
law. Merely because, as per the Statement of Objects and
Reasons, there are very stringent provisions for acquiring the
land and since the procedure is envisaged as very lengthy and
difficult, it is no ground to exercise such power. The failure to
meet the local needs and to exercise power under the guise of
the procedure being lengthy makes such an action, violative of
Article 14 of the Constitution of India.

5.24 There is an excessive delegation without proper

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safeguards. What is evident from reading the affidavit of the
State (page 267 onwards) that the attention of the President
was not drawn to the provisions of Sections 4, 9, 40 and
Section 107 of the Act of 2013. In support of his submission
Mr. Joshi has relied on the decision in the case of Kaiser-I-
Hind Pvt. Ltd. and Another vs. National Textile
Corporation Ltd and Others reported in (2002) 8 SCC

182.

CHALLENGE TO INSERTION OF SECTION 31A BY the
AMENDING ACT, 2016

5.25 According to Mr. Joshi, the State has justified the
insertion by providing that an ad-hoc valuation at a
benchmark of 50% of the amount of compensation is fixed
without taking into consideration the provisions of
rehabilitation and resettlement. The decision cannot be
arrived at on a purely monetary aspect. Compensation has to
be determined according to parameters as provided in Section
105 of the Act of 2013. Determination has to be in
accordance with the First Schedule and rehabilitation and
resettlement specified in the Second and the Third Schedule
being beneficial to the affected families. The legislation has
also failed the test of Section 107 by which the State had the
power to enact a law more beneficial to affected families.
There is no basis as to why the figure of 50% has been picked
up.

5.26 Falling back, in this context to the challenge to the
notifications dated 09.04.2018 and 18.10.2018, Mr. Joshi
submitted that assuming that the notification of 09.04.2018

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was validated, even then it fails the test of Section 26 of the
Act of 2013. Inviting our attention to the proviso of Section
26, it was pointed out that the Collector/State ought to have
taken steps to revise and update the market value of the land
before initiation of the land acquisition proceedings. When
the notification is issued on 09.04.2018 what is taken is the
ASR of 2011. When a mandate under Section 26 has not been
complied with, the notification as issued under Section 11(1)
must fail. Section 11 notification could not have been issued
without the statutory revision of ASR as is incumbent under
the amended Rule 5 of the Gujarat Stamp (Determination of
Market Value of Property) Rules, 1984 which provides that
the Annual Statement of Rates must be revised every year on
1st April taking into account the average rates of lands and
buildings. Inviting our attention to pages 189 to 191 of the
State's reply, Mr. Joshi contended that the facts stated
overlook that Section 26(1) provides for determination of
market value on the basis of either (a), (b) or (c) whichever is
higher. The true market value will only be reflected if the
ASR is revised.

5.27 Mr. Joshi submitted that assuming that all the
notifications are in valid exercise of powers, in context of
notification dated 06.02.2018 and even if Section 10A is
validly introduced, is the exercise of power to grant exemption
really expedient in public interest? The term "public interest"
is vague and of a wide amplitude. Reading of the notification
indicates a repetitive parrot like context. No elaborate
reasons are forthcoming as to what public interest is sub-
served in the context of exempting the acquisition process
from the entire Chapter II and Chapter III providing for Social

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Impact Assessment and Food Security. In a given case in
absence of reasons, the action though termed to be in public
interest could suffer from the vice of arbitrariness. On
reading the notification what is evident is that there is
complete non-application of mind to the objectives and the
formation of an objective opinion is absent, which makes the
entire exercise susceptible to arbitrariness.

5.28 The test of objectivity is to be applied more strictly
because exemption to the project from the provisions of the
Act of 2013 is striking at the basis and the spirit for which the
law is enacted. The nature of the power exercised is not
furtherance of public interest. Reliance is placed on a
decision of the Supreme Court in the case of Vasu Dev Singh
and Others vs. Union of India and Others reported in
(2006) 12 SCC 753. The standard of application of mind has
to be higher. The scope of judicial review of subordinate
legislation while considering validity of delegated legislation
would be wider when judging one which falls in the category
of granting exemptions. There has to be a rational basis for
exemption. Reading of the statement of Objects and Reasons
would indicate that the Act of 2013 was framed and there was
a substantive legislative policy which mandated undertaking
of Social Impact Assessment. Insertion of Section 10A cannot
exist in a vaccum. Social Impact Assessment envisaged under
Section 4 of the Act of 2013 is a salient feature and there is a
strong intent to have a Social Impact Assessment. The
overwhelming spirit behind the legislative policy cannot be
brushed aside on a vague assumption because the State finds
it "Expedient in public interest". Merely because the project
is expedient and they have a deadline to finish one, that the

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procedure is lengthy is no ground to do away with SIA
because the State perceives hindrances. The pre-
determination is evident by charting a particular course and a
deadline of 2022. Merely because the State perceives the
project as essential they cannot efface the need of SIA under
the Act of 2013.

CONTENTION REGARDING THE STATE'S DEFENCE
THAT IT IS A LINEAR PROJECT

5.29 Mr. Joshi invited our attention to various affidavits filed
by the State suggesting that since the project is linear in
nature and only a strip of 17.5 meters of land is sought to be
acquired, a presumption is drawn that such projects are
exempted. According to Mr. Joshi, the State's stand suffers
from a serious misconception. Taking us through the
provisions of Section 2, Mr. Joshi pointed out that it nowhere
indicates linear projects. It is only in context of Chapter III
with regard to Food Security that there are no rigors viz-a-viz
linear projects. Such exemptions would not operate
automatically for compliance of Chapter II i.e. Social Impact
Assessment. Inviting our attention to provisions of Section 9
and Section 40 of the Act of 2013 he submitted that linear
projects cannot claim justification from the exemption of SIA.

5.30 In this context Mr. Mihir Joshi drew our attention to
Section 105 of the Act of 2013. He submitted that the
Government draws support from the provision of Section 105
of the Act of 2013. According to Mr. Joshi the State seeks
cover under Schedule IV in the List of Enactments to which
provisions of the Act (as per Section 105) would not apply.

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Merely because tracks are involved, analogy of the Railways
Act, 1989 cannot be drawn. Merely because of this, the linear
project cannot claim exemption under the legislative policy.
Admittedly, the acquisition is not under any of the Acts of the
Fourth Schedule. There can be no exemption from SIA under
the belief of the operation of the Railways Act, 1989.

5.31 Our attention is also drawn to Section 2(37A) of the
Railways Act, 1989 where "Special Railway Projects" are
defined. Powers for land acquisition for such projects have
been made under the provisions of Section 20A of the
Railways Act, 1989. Taking us through the objects and
reasons for the insertion of Section 20A of the Railways Act,
1989, it was pointed out that no parity can be drawn between
the legislative intent of the Railways Act, 1989 and the Act of
2013.

5.32 In Mr. Joshi's submission, Section 10A cannot be invoked
as the appropriate government is the Central Government.
The satisfaction underlying the necessity of carrying out or
otherwise of the Social Impact Assessment has to be by the
Central Government. Central Government is the fountain
head of satisfaction and there can be no substituted
satisfaction. If the SIA is overlooked it could have a cascading
effect on rehabilitation and resettlement, compensation etc
and counter productive to the purpose and spirit of the Act of
2013.

6. Mr. M.C. Bhatt, learned advocate appearing on behalf of
the petitioners has submitted that the entire issue on hand
has to be appreciated in context of Article 300A of the

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Constitution of India. The Article guarantees that no person
shall be deprived of his property save by authority of law.
Drawing our attention to the historical background where the
Article was inserted by way of the 44th amendment of the
Constitution, Mr. Bhatt submitted that the amendments
inserted, and under challenge directly infringe the provisions
of Article 300A.

6.1 It is well settled by the judgements according to Mr.
Bhatt that there has to be strict compliance of laws and there
is no question of liberal interpretation of the laws viz-a-viz
Article 300A of the Constitution of India. In support of his
submission that the procedure prescribed by law must be
strictly followed and when there is a constitutional right of
any citizen involved under Article 300A, there is no question
of taking a liberal view Mr. Bhatt has relied upon a decision
of the Apex Court in the case of E.A Aboobacker Others
vs State of Kerala and Others in Civil Appeal No. 2772 of
2011 and allied appeals dated 27.09.2018. He has
specifically drawn our attention to para 11 of the judgement.
Referring to the decision of the Supreme Court in the case of
"Triple Talaaq", Mr. Bhatt submitted that a law which is
manifestly arbitrary can be so declared when it infringes and
seeks to deprive a citizen of India of his property. The
amendments by introducing Section 10A and 31A of the Act of
2013 directly infringe the right of a citizen and deprive him of
his property without authority of law.

6.2 In the context of Article 254(2) of the Constitution of
India, Mr. Bhatt invited our attention to pages 278 279 of
the paper book to submit that what was sent for the assent of

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the President was a bill. Article 254 provides that what is to
be sent for the assent of the President is the "law". A bill can
only become a law after a procedure has been followed and
therefore in absence of a law being sent for assent, the entire
exercise of the amendment is bad. In the submission of Mr.
Bhatt, even the Governor has yet not signed the bill. The
amendment therefore is violative of Article 254 since the law
has not been properly enacted. All consequential actions
therefore fall flat.

6.3 According to Mr. Bhatt, the old land acquisition Act of
1894 only had the concept of monetary compensation and was
mainly catering to projects like schools, hospitals etc. The
transition from compensation to rehabilitation and people's
participation including all stakeholders are the essential
features of the Act of 2013, as the Act involves acquisition of
land for mega projects, infrastructures etc. Therefore, in
consonance with the spirit enshrined under Articles 243A to E
consultation with local authorities is a must. The stress is on
people's participation, rehabilitation and prevent adverse
effect to the food supply. It is in this context that Chapters II
III of the Act of 2013 have been inserted by giving a go-by
to these essential provisions of the Act. By the amendments
under challenge the entire purpose of such enactment is
demolished.

6.4 Inviting our attention to page 136 of the paper book of
Special Civil Application No. 9684 of 2018, Mr. Bhatt
submitted that a preconceived and a pre-determined mindset
of the authorities is evident because the language of proviso
to sub-section (2) of Section 2 inserted uses the word "shall be

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exempted" and therefore no choice is left.

6.5 The authorities are seriously misconceived in their
perception that because the acquisition is for linear projects,
they are entitled to be exempted from Chapters II III of the
Act of 2013. Moreover, the amendments at page 137 have
been questioned by Mr. Bhatt on the ground that the land
actually would not vest with the Government on acquisition.
The entire financial framework and funding of the project is
by the National High Speed Rail Corporation Limited. He
specifically invited our attention to pages 161 and 196 of the
paper book and suggested that considering that the project is
monitored by a joint committee under the Vice Chairman of
Niti Ayog and that the entire cost of the establishment and
staff will be borne by NHSRCL, it is obvious that the land shall
not vest in the Government but shall be with the NHSRCL.
Inviting our attention to page 101 filed in Special Civil
Application No. 17653 of 2018, it cannot be said that the
insertion of Section 10A is done only keeping in mind linear
projects. In fact if the entire conspectus of acquisition of land
is examined, the Section takes into its fold all kinds of projects
which otherwise fall in Section 2 of the Act of 2013.

6.6 Since the appropriate Government is the Central
Government, the power to amend such laws will only vest in
the Central Government. There is no delegation of legislative
power and therefore by virtue of the notifications the rule
making powers suffer from the vice of excessive delegation,
abdication which would tantamount to confer powers which
result in discrimination and hence violate Article 14 of the
Constitution of India. He invited our attention to the

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judgement of the Apex Court in the case of Delhi Laws Act
reported in AIR 1951 SC 332.

6.7 Taking us to the relevant provisions of the Act of 2013,
he has assailed the powers of amending the Act and submitted
that what is apparent from such notification is that it is the
Under Secretary and not the Cabinet who has exercised
powers and such powers have not been guided by the spirit of
the statements of object and reasons for which the Act of
2013 was enacted. There cannot be an amendment of the Act
which goes against the preamble. By such amendments, the
preamble itself is deleted.

6.8 The object of the Act of 2013 stands nullified. Inviting
our attention to the notifications, Mr. Bhatt submitted that in
each village a particular fixed measure of land has been
admeasured for acquisition which shows that the concept of
objecting to such an exercise has been virtually ruled out.

7. Mr. A.J. Yagnik, learned counsel for the petitioners in
petitions which the tenants have filed, submitted that merely
because they are not land owners they cannot be left high and
dry. The contention of the State that they have no locus is
misconceived. Provisions of Section 3 of the Act of 2013
specifically provide that effected family can be a stakeholder
and the definition of such effected family under Section 3(c) is
wide enough to include artisans, agriculture labourers and
tenants including any form of tenants. Even Section 3(x)
speaks of interested persons and provides that all persons
interested would mean Scheduled Tribes and other traditional
forest dwellers etc and therefore to oust such petitioners is

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against the basic spirit of the Act of 2013.

7.1 Inviting our attention to Section 16 of the Act, Mr.
Yagnik submitted that by arriving at a standard figure of
providing 50% as compensation to the owners, persons other
than the owners have been left high and dry. Whether the
President was specifically put to notice of the repugnancy of
the Act viz-a-viz provisions relating to the Scheduled Castes
and Scheduled Tribes is not coming forth and therefore such
exercise violates the assent given under Article 254 of the
Constitution of India.

7.2 Mr. Yagnik invited our attention to the provisions of
Section 31A of the Act. He submitted that reading of the
Section makes it evident that it shall be competent for the
State Government to pay, whenever the land is acquired for
its own use. Therefore, such a provision is applicable only
when land is exclusively used by State for a project within the
State. Admittedly, in the facts of the present case, Section
31A cannot be applied as the purpose of the acquisition is for
a project involving 3 states for which the appropriate
government is the Central Government. Rehabilitation and
resettlement cannot be given a go-by as provided under the
provisions of the Act of 2013. Even after the amendment and
insertion of Section 31A , the State is obliged to follow the
provisions of Section 31 in respect to the Rehabilitation and
Resettlement.

7.3 Mr. Yagnik invited our attention to the provisions of
Section 16 of the Act of 2013 which envisages preparation of
Rehabilitation and Resettlement scheme. In context of the

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provisions of the Panchayat (Extension of Scheduled Areas)
Act, 1996 (for short 'PESA'), Mr. Yagnik submitted that the
entire exercise for acquisition of land in villages under the
PESA have gone without consultation of the Gram Sabha in
the Scheduled Area. Compensation/Rehabilitation and
resettlement and the 50% amount of compensation
contemplated under Section 31A is nowhere keeping in mind
the statutory scheme of Rehabilitation Resettlement under
the Act of 2013. Drawing our attention to Schedule V, Mr.
Yagnik emphasized on the proviso to Serioal No. 2 with regard
to the Elements of Rehabilitation and Resettlement
entitlements and submitted that in every project those
persons losing land and belonging to the Scheduled Castes
and Scheduled Tribes will be provided land equivalent to the
land acquired. Nothing of this is contemplated or enforced in
the present regime of the amended provisions by the State
Government. There are 17 villages falling under PESA.
Section 31A does not follow the scheme of rehabilitation and
resettlement as contemplated under the Act of 2013. It
seriously compromises with the requirement of PESA.

7.4 Drawing our attention to the provisions of Article 254(2)
of the Constitution of India, Mr. Yagnik submitted that while
considering the question and obtaining the assent of the
President, such inconsistencies and repugnancies with the
aspect of rehabilitation and resettlement such as Section 16
onwards have not been brought to the notice of the President.
The provisions of PESA, Forest Act and provisions pertaining
to the SC and ST have not been brought to the notice of His
Excellency the President of India. Mr. Yagnik drew our
attention to the provisions of Section 41 of the Act which

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deals with special provisions for Scheduled Castes and
Scheduled Tribes. No development plans have been prepared
where there has been involuntary displacement of the
Scheduled Castes and Scheduled Tribes families. No prior
consent as provided under sub-section (3) of Section 41 has
been obtained. Mr. Yagnik would want us to keep the term
"involuntary displacement" in mind in context of the JICA
guidelines, to which he would draw our attention. Mr. Yagnik
drew our attention to Article 253 of the Constitution of India
to suggest that a legislation can be made for implementing an
international agreement. No such legislation has been made.
If contracts have been entered into in accordance with
Articles 298 and 299 of the Constitution of India the land
losers are not made aware of the terms of such contracts.

7.5 Mr. Yagnik drew our attention to pages 295A and 306 of
Special Civil Application No. 9864 of 2018 to contend that
extensive SIA has been carried out for acquisition of land for
the same project, in the Union Territory of Dadra and Nagar
Haveli where the Central Government is therefore making an
artificial distinction by drawing a classification viz-a-viz land
holders of Dadra and Nagar Haveli and Gujarat. There is no
reason or a nexus with the object sought to be achieved to
undertake such assessment for one State/UT and not for
Gujarat. Such discrimination is therefore violative of Article
14 of the Constitution of India. The same is therefore
manifestly arbitrary.

7.6 Mr. Yagnik, while taking up the case of Special Civil
Application No. 15932 of 2018 drew our attention to page
AD/AE namely pages 307 and 308 of the JICA guidelines. He

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further drew our attention to pages 145 and 172 of the JICA
guidelines which deal with the term "involuntary
displacement". He contests the argument of the State that
says that there is going to be minimal displacement. Even if
the State has exercised its powers and given a go-by to carry
out Social Impact Assessment by inserting Section 10A, JICA
guidelines extend a certain responsibility which the State is
undertaking and some kind of exercise is being carried out
pursuant to such JICA guidelines. In Mr. Yagnik's submission
the stand of the State is hypocritical that they would not
adhere to the Indian law of the need to carry out SIA but
would follow the guidelines of JICA. There is no reason for
the Government to ignore Social Impact Assessment and show
that they are complying with the international agreement
though in fact at the same time saying that there is no large
scale involuntary displacement. Now at the last hour the
acquiring body has come out with an affidavit that they are
undertaking an exercise on the lines of the Scheme of the
provisions of Section 16 to Section 22 of the Act of 2013.

7.7 The MOU was entered into in December 2015. No
legislation was in force then. JICA guidelines were pressed
into service to show the agency that they would adhere to
following them. In 2016, the amendment is brought in to do
away with Social Impact Assessment. This is in conflict
therefore with the International Agreement entered into
under Article 299 of the Constitution of India.

8. Mr. Kamal Trivedi, the Advocate General recapitulating
the submissions made on behalf of the petitioners submitted
that there are five major limbs of the arguments made on

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behalf of the petitioners. Summarising such heads, Mr.
Trivedi submitted the heads of the limbs as under:

(I) That according to the petitioners, Section 10A of the
amendment is ultra vires the Act of 2013 and fails the
test of reasonableness and article 300A inasmuch as

(a) It is repugnant to the Act of 2013 and strikes at
the very basis of the legislative policy namely
Chapters II and III are missing and therefore
repugnant.

(b) If the assent under Article 254(2) of the
Constitution of India were to act as a shield, then
the assent itself is invalid as (i) the President was
not apprised of the repugnancy and (ii) he has not
been apprised of the need and the necessity to
bring in such an amendment keeping in view the
local conditions

(c) Article 254 refers to "laws" and not "Bill" and
what has gone for assent is the Bill and therefore
the assent is invalid

(d) Section 10A suffers from vice of excessive
delegation ; is bereft of guidelines. No guidelines
as to how State may exempt itself from the rigors of
Chapter II and III in public interest

(e) This is a project where the Central Government
is the "appropriate government". How can the
State exempt under Section 10A of the Amendment
Act.

(II) That Section 31A is ultra vires:

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(a) It fixes 50% as compensation which is ad-hoc
and there is no logic discernible behind the fixation

(b) It is in violation of Section 107 of the Act of
2013 and does not take into consideration whether
50% figure is beneficial in context of the
Rehabilitation and Resettlement programme.

(c) This wishes away compliance of Section 16 of
the Act of 2013, rendering the Sections at nought.

(III) Section 10A notifications are issued in discharge of
functions and there is an excessive delegation of
legislation by an Executive.

(IV) While referring to the preliminary notifications
under Section 11 of the Act of 2013 the same are without
authority of law as

(a) Conditions precedent regarding revision of
market rates of ASR under Section 26 have to be
done

(b) The three requirements of sub-section 26(a), (b)
and (c) or which is higher is not done. The
submission is that unless ASR is revised, the
question of revising of such rates of ASR, would
reflect on the correct market value and make a
correct assessment.

(V) Attack to the notification dated 08.10.2018 issued
under Article 258 of the Constitution of India

(a) It is the "Governor" who has to consent but here

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the Governor has not signed but the State
Government has through the Under Secretary who
has signed and therefore the exercise is invalid.

(b) "entrust" as the connotation goes, cannot be
retrospective

(VI) Everything is pre-determined.

(a) Chapters II and III are the heart of the Central
Act. There must be a structural process.

Everything is set at naught.

(b) Whole legislation is manifestly arbitrary.
Violates Article 14 as in Dadra and Nagar Haveli,
Social Impact Assessment is done whereas such an
exercise is dropped by inserting an Amendment Act
in 2016.

(VII) JICA guidelines - a facade to follow the same is
made whereas the Social Impact Assessment is
completely left out. The President has not been
informed of the JICA guidelines therefore assent under
Article 254 is invalid.

8.1 Mr. Trivedi, learned Advocate General as a prefatory
note invited our attention to the affidavit in the Special Civil
Application No. 17653 of 2018 at page 80. He has drawn our
attention to the Ordinance at pages 114 and 115 to submit
that what the Gujarat Amendment has done, was already on
the mind of the Central Government. He invited our attention
to the Statement of Object and Reasons. The contents of the
affidavit from paragraphs no. 4 and paragraphs no. 4.14, 4.15

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and 4.16 have been read. Attention was invited to page 89 of
the reply in context of rehabilitation and resettlement. Para
7.7 of the reply at page 92 has been read.

8.2 Mr. Kamal Trivedi, learned Advocate General placed
reliance on paragraph no. 7.7 of the affidavit-in-reply filed in
Special Civil Application No. 17653 of 2018 rebutting the
contention of the petitioners that the entire Social Impact
Assessment has been given a go-by. It was Mr. Trivedi's
submission that merely because of the absence of Social
Impact Assessment, the entire exercise of acquisition is not
vulnerable. A similar exercise like the Social Impact
Assessment has been carried out by M/s. Arcadis in the State
under the provisions of JICA. Our attention was drawn to
Annexure 'AD' at page 306 produced by the petitioners
themselves in Special Civil Application No. 9834 of 2018.

8.3 Page 5 is a table wherein district wise impact survey has
been undertaken from December 2017 to July 2018 which
shows details of the private land, number of total land parcels
and structures. This is akin to the conduct of the Social
Impact Assessment like assessment of affected families,
extent of land acquired such as agricultural land, private land
or common properties and issues as regards land
compensation.

8.4 Viz-a-viz the contention of the petitioners that the
authorities ought to have followed the Indian legal framework
rather than JICA, Mr. Trivedi submitted that a detailed
analysis in table 4.2 from pages 87 to 91 would suggest that a
comparative assessment is made between the guidelines and

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the Act of 2013 and measures to fill gaps which occur
between the two instruments has been taken care of. By way
of an illustration, Mr. Trivedi has drawn our attention to
heading at Sr. No. 15 at page 91 which suggests that
attention must be paid to the needs of vulnerable groups
meaning those displaced especially those below the poverty
line, landless, elderly women and the column of gap filling
measures in the remarks would suggest that JICA and
NHSRCL recognise other vulnerable groups in addition to SC
and ST indicated in the Act of 2013. Entitlement matrix under
the legal and policy framework covers such vulnerable
groups. With regard to Rehabilitation and Resettlement, Mr.
Trivedi pointed out that as reflected in the Second Schedule of
the Act of 2013, where there is a provision at Sr. No. 2
regarding land for land, the same has been taken care of in
the same spirit. A compensation determination as per steps
outlined under Section 26 of the Act of 2013 will be taken,
that Rehabilitation and Resettlement amount/assistance shall
be 50% of the amount of compensation for land as determined
under the Amendment Act which is in compliance of Rule 29
of the Rules. A sample calculation of compensation has been
shown at page 100. In other words, a categorical statement
has been made by Mr. Trivedi that steps akin to the heart and
the spirit of Chapter III of the Act of 2013 has been
undertaken and a statement is made that the Schedule II will
be implemented fully in the method and the structured
formula shown at page 98 of the paper book 'AD' 306.

8.5 Mr. Trivedi also submitted that as contemplated under
Section 15 of the Act which provides for hearing of objections,
a similar exercise has been carried out where the

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stakeholders have been consulted. At the district level,
consultations have been held with persons interested. The list
in the tabular form has been given which for instance shows
that at Kheda, a public hearing was held on 25.03.2018 where
approximately 155 interested stakeholders attended to, of
which 10 to 15 were females. In other words, though what is
sought to be canvassed is that the State Government has not
taken care of the entire machinery and the spirit of the Act of
2013, under the auspices of JICA, a structured procedure akin
to the provisions of the Act of 2013 has been followed.

8.6 Mr. Trivedi has also invited our attention to the paper
book 'AE' at page 307 to contend that the State of Gujarat is
obliged as per the agreement of the funding agency to follow
the guidelines and the spirit of Chapters II III of the Act of
2013, though the Amending Act exempts the State
Government from doing so. Even then all aspects resembling
Social Impact Assessment have been taken care of.

8.7 Detailed reliance is placed on 'AE 307' with relation to
the care being taken of the tribal population showing that a
conscious approach to minimise land acquisition impact on
people of the 5th Scheduled areas is being taken including
taking care of access to basic social infrastructure and public
services such as drinking water sources and sanitation. Even
trial stakeholders are being identified. Focused group
discussions have been held in various tribal areas and details
of consultation done in such areas have been placed at pages
89 to 93 together with photographs. Mr. Trivedi has drawn
our attention to pages 157 and 159 of the affidavit-in-reply in
Special Civil Application No. 17653 of 2018 to suggest that

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care has been taken to see that the land holder gets more
than his market value in context of the table at pages 157 and

159. Mr. Trivedi has drawn our attention to para 9.6 of the
reply. According to him, the resolutions dated 11.09.2018 and
04.04.2018 are being observed while determining
compensation under the Central Act of 2013. The acquiring
body is ready and willing to pay compensation by adopting the
indexation formula. The indexation formula has its root in
cost inflation index identified by the Central Government for
the Financial Year 2018 - 2019 which is at Rs.280/-. Such
cost inflation index is applied to ASR where the farmers will
get compensation approximately 50% - 60% on the higher
side. Para 9.7 of the affidavit-in-reply which is reproduced
herein at page 102 suggests how such formula works.

8.8 Mr. Trivedi took up as an illustrative case, the case of
the land owner at Sr. No. 1 on page 157. For his land the
Zone Value is Rs. 935. The value as per Income Tax
Indexation formula is Rs.487.79. Adding both these figures an
incentive to the figure (a) 25% the price would work out to be
Rs.2845.58. Para 9.9 of the reply suggests that as against the
prevailing Jantri rate of Rs. 900 per sq. meter of land, the
average sale price comes to Rs.1466/- and since the
indexation formula is applied, the farmer has got a
compensation of Rs.58,77,547.92 against the value of
Rs.36,35,280/- if indexation was not applied.

8.9 Drawing our attention to the Statement of Objects and
Reasons for bringing in the Amending Act of 2016, Mr. Trivedi
submitted that reading of the Statement of Objects and
Reasons makes it clear that Gujarat is an industrially

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progressive State where more and more investment is coming
to the State with an aim to provide basic facilities and
infrastructure to the entrepreneurs and looking to the
experience that after coming into force of the Act of 2013,
there are stringent provisions which make land acquisition
very lengthy, it has been decided to consider to make the
procedural part smooth without interfering with the rights of
persons whatsoever, whose lands are acquired. In other
words, care is appropriately taken to see that the rights of the
persons are not interfered with.

8.10 Mr. Trivedi has invited our attention to the definition of
Section 2(za) and Section 2(zb) of the Act and Section 3(e)
which talks about "affected family". To the contention that in
accordance with Section 3(e)(iv) it is the Central Government
which is the appropriate Government, Mr. Trivedi pointed out
that the learned advocate for the petitioners had not read the
definition in its entirety. Reading the definition, Mr. Trivedi
submitted that in relation to acquisition of land for public
purpose in more than one State, the Central Government in
consultation with the State Government is the appropriate
Government. Therefore, it is not the Central Government
alone. Naturally, when as far as lands which fall in the State
of Gujarat are concerned, it is the State of Government which
is involved, the appropriate Government in consultation with
the Central Government is the State of Gujarat. He submitted
that since the acquisition of lands is in more than one State, it
is "the Central Government in consultation with the
concerned State Governments", which would be the
"appropriate government" in the present case, however, this
does not and cannot debar the applicability of Section 10A of

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the State Act, 2016 to the acquisition of lands situated in the
State of Gujarat.

8.11 Mr. Trivedi reiterated his submission that as far as the
machinery that is provided in Sections 4 to 9 of the Act of
2013 is concerned, the same has been taken care of which
highlight the resettlement policy. The entire synthesis of such
impact assessment is under Section 8 of the Act and reading
the report of M/s. Arcadis, it is apparent that this has been
taken care of.

8.12 Our attention was then invited to Section 10 and the
proviso thereto which provides that the provisions of the
section shall not apply in the case of projects that are linear in
nature such as those relating to railways etc. He submitted
that though Chapters II and III are important, there is a
legislative intent to exempt linear projects from Chapter III.
There are legislative inconsistencies. There is therefore a
provision in the Constitution of India that a State can make a
law inconsistent and goes against the legislative policy of the
Central Act provided the assent is reserved for consideration.

8.13 Inviting our attention to the Fourth Schedule of the Act
of 2013 and Section 105 of the Act, it was submitted by Mr.
Trivedi that there is a provision where the provisions of the
Act may not apply in certain cases. There is a power under
sub-section (2) of Section 105 providing that the Central
Government can omit or add to any of the enactments relating
to land acquisition. The Fourth Schedule has 13 such
enactments of which at least 6 are concerning linear projects.
Relying on sub-section (3) of Section 105 of the Act of 2013,

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Mr. Trivedi submitted that it was open for the Government
within one year from 01.01.2014, the date when the Act came
into force i.e. by 01.01.2015 issue a notification that any of
the provisions of the Act shall apply.

8.14 Section 113 was brought to our notice to suggest that in
accordance with this Section if any difficulty arises in giving
effect to the provisions of the Act, the Central Government
may by order make such provisions or give such directions.
Our attention was drawn to the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Removal of Difficulties) Order, 2015 by which
the provisions of the Act of 2013 have been extended to apply
to the 13 enactments in Schedule IV. The Government though
had the option to undertake the process of acquisition under
the Railways Act, 1989, but it has opted to do so under the Act
of 2013. The philosophy is that the effect of these provisions
as in Schedule I to Schedule III would apply and they need not
be governed by the Social Impact Assessment. Proviso to
Section 10 itself is clear that it does not apply to linear
projects. Apparently, in case of linear projects there is no
large scale displacement. The philosophy is therefore existing
and there is nothing new in seeking to do away with the Social
Impact Assessment. Inviting our attention to Section 10A of
the Amending Act particularly the list of projects it was
pointed out that at clause (e) was "infrastructure projects"
and the question is can the State try and give a go-by to the
edifice of the Act of 2013?

8.15 Inviting our attention to the provisions of Sections 15, 16
and other provisions upto Section 31, Mr. Trivedi rebutted the

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submissions of the petitioners that these provisions are being
wished away. Inviting our attention to Rule 29 of the Gujarat
Rules, he submitted that the provisions of assessment of
compensation has a basis and it cannot be said to be ad-hoc.
In addition to this compensation care is being taken and for
that a separate requirement for the purposes of rehabilitation
and resettlement is made.

8.16 Mr. Trivedi submitted that it is not correct for the
petitioners to contend that the benefit of sub-section (1) of
Section 26 is not at all available. As explained in the affidavit,
modalities of compensation have been worked out. It is
incorrect to assail that the entire exercise of issuing a
preliminary notification under Section 11 should fail because
the Collector has not taken necessary steps to revise and
update the market value before initiation of any land
acquisition proceedings. Inviting our attention to Rule 5 and
sub-rules (3) (4), it was submitted that even if there is no
revision of ASR, there is a relevant space for incremental
steps to be taken by the Chief Controlling Revenue Authority,
in consultation with the Revenue Department keeping in view
the increase in market rates of immovable properties. He also
invited our attention to the proviso of sub rule (6) of Rule 5
providing for enquiry. Sub-rule (8) provides for the Land
Acquisition Officer for awarding amounts higher than the one
payable on the basis of ASR. The sub-section (1) of Section 26
has to come into play. There has to be a purposive
interpretation of the proviso. There is no vacuum in absence
as Rule 5 takes care of a situation, moreover, there is an
adjudicatory machinery of Appeals. The petitioners have
failed to bring to the notice of any case where compensation

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awarded has failed the test. Mr. Trivedi then invited our
attention to the provisions of Sections 64, 69 and 74 of the Act
of 2013. These sections provide an inbuilt mechanism of
safeguards to the person whose lands are acquired.

8.17 Reverting to the contention of the petitioners that
Section 10A of the State Act. 2016 is beyond the legislative
policy of the Central Act, Mr. Trivedi submitted that in fact it
is the legislative policy of the State Act, 2016 which is to be
taken into account while determining the validity of its
Section 10A and not the legislative policy declared and
announced by the Central Act, 2013. He submitted that
admittedly, the basic legislative policy of the Central Act,
2013 amongst other things, is the determination of the Social
Impact Assessment and determination of public purpose as
specified in Chapter II and safeguarding of the food security
as provided in Chapter III of the Central Act, 2013. On the
other hand, the State Act, 2016 seeks to exempt certain
projects from the purview of the said Chapters II and III of the
Central Act, 2013 dealing with the aforesaid aspects, with a
legislative policy of facilitating land acquisition for
infrastructure projects in a timely and transparent manner
without interfering with the right of the land owners.
Therefore, the State Act, 2016 cannot be pitted against the
aforesaid legislative policy of the Central Act, 2013.

8.18 Further reverting to the contention of the petitioners
that Section 10A is repugnant to the legislative policy of the
Central Act of 2013 of which Chapters II and III are the heart,
Mr. Trivedi submitted that even otherwise, an absolutely
irreconcilable State legislation can override an existing

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Central law in the State provided such a repugnant State law
is backed by the assent of the Hon'ble the President. In this
regard he has relied on a few decisions to show that State
laws dramatically opposite to the Central laws can exist.

8.19 Reliance was placed on the decision in the case of Mr.
M. Karunanidhi vs. Union of India and Another reported
in (1979) 3 SCC 431. Paragraphs no. 8 and 24 of the
judgement were relied upon to show under what
circumstances repugnancy could occur.

8.21 The case of T. Barai vs. Henry Ah Hoe and Another
[(1983) 1 SCC 177] with specific attention to paras 1, 7, 8,
11, 15 and 16 was relied upon. Paras 9 and 10 were pressed
into service in the case of Gorwa Vibhag Co-operative
Housing Societies Ltd and Another vs. State of Gujarat
and Others reported in 1993(1) GLH 571. Mr. Trivedi
submitted that the petitioners can in no case submit that the
State cannot make a law inconsistent with Central law. Since
there is a valid assent, such a law can be made and can exist.

8.21 Addressing on the question of a valid assent under
Article 254(2) of the Constitution of India, Mr. Trivedi
categorically submitted that the assent granted by the
Hon'ble the President on 08.08.2016 to the State Act, 2016 is
not subject to judicial review. He submitted that what was
sought was a general assent and not a specific assent. He
invited our attention to pages 160 and 167 of the affidavit-in-
reply in Special Civil Application No. 17653 of 2018 and
submitted that comparative statement was placed before the

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President specifically pointing out the repugnancy.

8.22 By relying on various paragraphs of the judgement cited
by the petitioners in the case of Kaiser-I-Hind Pvt. Ltd
(supra), Mr. Trivedi sought to distinguish the judgement in
context of the facts on hand. The question that was
considered was with regard to the assent of the President
given to the Extension Acts of 1981 and 1986 of the Bombay
Rent Act for the limited purpose of repugnancy to the
Transfer of Property Act and Presidency Small Causes Court
Act, 1852. There is no "consideration" or "assent" when
repugnancy between a State law and one of the Central law is
not pointed out in the case on hand between the Rent Act and
Eviction Act.

8.23 From reading the statement of Objects and Reasons of
the Amending Act of the State and looking at the letter, it is
clear that the repugnancy of the Central law to the State law
was pointed out inasmuch as required and therefore it cannot
be said that the assent was invalid. That the assent is general
is evident, in Mr. Trivedi's submission, on reading page 184 of
the affidavit-in-reply.

8.24 Reliance is also placed on the decision of the Apex Court
in the case of Rajiv Sarin and Another vs. State of
Uttarakhand and Others reported in (2011) 8 SCC 708.
Paragraphs no. 61 to 68 were pressed into service. This was
to submit that it is not necessary that in every case a specific
assent has to be sought. He submitted that the ratio of the
judgement in the case of Kaiser-I-Hind (supra) has to be
read and understood in light of the judgement of the Apex

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Court in the case of Rajiv Sarin (supra). According to Mr.
Trivedi, the judgement in Kaiser-I-Hind's case stands
clarified and to an extent watered down in Rajiv Sarin
(supra) by referring to the earlier judgement in Jamalpur's
(supra) case. Kaiser-I-Hind has to be read and the ratio to be
culled out on the facts obtaining in that case and not
otherwise.

8.25 A combined reading of these judgements would show
that the assent granted by the President is not justiciable.
Only to a limited scope it is open to a formal inquiry. In the
facts of the case on hand, in Kaiser-I-Hind (supra), a limited
inquiry was necessary only because of the facts of the case.
In the facts of the present case, the requisition of assent is not
specific but general. The assent was sought for the whole Bill
and not with reference to a particular provision/article.
Whether it is subject specific it is the same whether it is under
Articles 31A or 31C or Article 254(2). When the letter of
assent as in Kaiser-I-Hind's case is compared to the letter
written in the facts of the present case, in terms the letter of
the State Government stands on a much better footing. He
submitted that as per the judgement in the case of the Kaiser-
I-Hind (supra), limited inquiry can be there for the purpose of
finding out as to whether the assent was at all sought and
given in respect of the repugnant State legislation with
reference to the existing Central Law.

8.26 Specific attention was drawn to paragraph no. 27 of the
judgement in Kaiser-I-Hind (supra) where it was observed
that the Supreme Court was not considering the question that
the assent of the President was rightly or wrongly given

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without considering the extent and nature of repugnancy
should be taken as no assent at all. He submitted that in the
present case, all the essential ingredients of Article 254(2) as
specified in paragraph no. 27 of Kaiser-I-Hind (supra), have
stood complied with.

8.27 Reliance was placed by Mr. Trivedi on a decision of the
Apex Court in the case of Yogendra Kumar Jaiswal and
Others vs. State of Bihar and Others reported in (2016)
3 SCC 183. Paras 63 to 70 were specifically relied upon. In
Mr. Trivedi's submission, the Court clearly held that it was
not its intention to hold that it is necessary in every case that
the assent of the President should be in specific terms.
Considering the case of Rajiv Sarin (supra), the Supreme
Court on examination of the letter had held that the entire Bill
was sent for assent and therefore it can safely be presumed
that the President was apprised of the reason and the same
was in general terms. That the Act of State was repugnant
was an admitted fact and in the case of the present,
admittedly the judgement will apply and since the assent
letter clearly had sent the entire Bill, the assent in the case of
Kaiser-I-Hind, in the case of Orissa Special Courts Act and in
the present would reveal that when the assent sought is
general, it is valid for all purposes. He submitted that it
clearly appears that the requisition for assent in the present
case complies with all the essential ingredients.

8.28 Mr. Trivedi reiterated that the State had enclosed the
entire Bill with the Statement of Objects and Reasons for
enacting the Act. The repugnancy was writ large. One cannot
go into the microscopic examination of what is said/or not

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said. The assent is not justiciable. Local conditions/needs
need not be gone into all cases. Repugnancy there is a valid
assent and the Bill cannot be struck down on the invalidity of
the assent.

8.29 Mr. Trivedi submitted that local conditions prevailing in
a State may be one of the factors to be taken into account in
a given case as held by the Bombay High Court reported in
Basantilal Banarsilal (supra) but the same is not the
essential ingredient and hence not specified as such in
paragraph no. 27 of Kaiser-I-Hind (supra) judgement.

8.30 Mr. Trivedi submitted that without prejudice to the
above, it is stated that the Statement of Objects and Reasons
in the present case (page 118/178 of Special Civil Application
No. 17653/2018) indicates the local conditions prevailing in
the State as well as the need and the necessity for the
repugnant law in the State, by stating, inter alia therein that

(i) the State being industrially progressive and more and more
investment coming, aims to give all basic facilities and
infrastructures; (ii) land acquisition proceeding under the
Central Act, 2013 is a very lengthy and difficult proposition
and therefore, considered necessary to make the procedural
part of the land acquisition smooth and easy without
interfering with the rights of the landowners and (iii)
consequently it is proposed to exempt certain projects from
the application of Chapter II and Chapter III of the Central
Act, 2013.

Mr. Trivedi submitted that therefore the assent dated
08.08.2016 accorded by the Hon'ble the President in the
present case is valid and does not deserve any interference.

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8.31 Referring to the peripheral submission of Mr. M.C. Bhatt
with regard to Article 254 and that the assent should be held
to be invalid as what was sent was a "Bill" and not the "Law",
Mr. Trivedi invited our attention to the provisions of Article 31
and 31C which also talk about "law". It is only the "Bill"
which has to go for the assent. In support of his submission
that it is the "Bill" which has to go for assent, Mr. Trivedi
relied, firstly on a decision of the Bombay High Court in the
case of Smt. Salubai Ramchandra and Others vs. Chandu
Saju and Others reported in AIR 1966 Bombay 194. Our
attention was drawn to paragraph no. 18 of the judgement.
There is no doubt, that it is the Bill which can be reserved for
consideration of the President. The whole argument that
there has to first be an assent and then it has to be reserved
for consideration. The whole argument, as contended by Mr.
Trivedi, is found to be fallacious. Reliance was placed on the
judgement of the Supreme Court in the case of State of
Bihar vs. Kameshwar Singh reported in AIR 1952 SC

252. The relevant paras 10, 17 and 178 were specifically
relied upon. According to Mr. Trivedi, one of the three
courses with the Governor is to reserve the Bill for
consideration of the President. The law does not contemplate
the Governor giving an assent and when the Bill has become a
full fledged law, reserving it for consideration of the
President. The word "law" is sometimes loosely worded in
referring to a Bill. What is referred to as a "law" is not "law"
after assent by Governor and what is to be sent for
reservation is the Bill before it receives the assent.

8.32 The other subsidiary submission made by Mr. M.C. Bhatt

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is that not to look at the Statement of Objects and Reasons of
the Amending Act, is also, according to Mr. Trivedi, a
submission which must be brushed away. Mr. Trivedi submits
that the SOR offers an indepth source of guidelines and gives
what is the history, logic and guides the delegated authority of
what must go into making of the legislation. He submitted
that the Statement of Objects and Reasons being the integral
part of the Bill is a good guide for finding out - (a) the
reason/purpose and the objective, behind the enactment of
the State Act, 2016 and (b) the guidelines. In support of this
submission, reliance was placed on the following decisions :

(a) Smt. Radhabai vs. State of Maharashtra
reported in AIR 1970 Bombay 232, reliance was
placed on paras 20 to 22 of the judgement. According to
Mr. Trivedi, it is the Statement of Objects and Reasons
which throws the flood of light upon what was intended
to be achieved by the amendment.

(b) Utkal Contractors and Joinery Pvt. Ltd vs. State
of Orissa and Others reported in (1987) 3 SCC 279,
paras 1 to 5. The Statement of Objects and Reasons of
the Amending Act provide the colour to the legislation.

(c) District Mining Officers and Others vs. Tata
Iron and Steel Company and Another reported in
(2001) 7 SCC 358. Para 18 of the judgement was read
out. It is the Statement of Objects and Reasons which
clearly enunciates the chartered course of the
legislation.

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8.33 Mr. Trivedi then answered the submission on behalf of
the petitioners that Section 10A suffers from the vice of
excessive delegation as it essentially delegates a legislative
function. He submitted that delegation bereft of guidelines is
known as "excessive delegation" and "essential legislative
function" means the determination of choice of legislative
policy and formally enacting a policy into binding rule of
delegation, which, if delegated, amounts to "delegation of
essential legislative function".

8.34 Mr. Trivedi submitted that it is settled legal position that
in spite of very wide power being conferred on the delegatee
by virtue of any provision, such a provision will not be ultra
vires on the ground of excessive delegation, if some guidelines
could be gathered either from preamble, the Statement of
Objects and Reasons, other provisions of the Act as well as
surrounding circumstances and history. Mr. Trivedi
submitted that in the present case, Statement of Objects and
Reasons and Section 10A of the State Act of 2016 provide
sufficient guidelines as to when and in respect of what kind of
projects, the exemption may be granted from the applicability
of Chapters II and III of the Central Act, 2016, which task has
not been delegated and that the choices have been statutorily
offered to the delegated authorities.

8.35 Mr. Trivedi submitted that while taking into
consideration the history it may be noted that similar was the
philosophy on the part of the Central Government when it had
come out with the issuance of the first Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Amendment) Ordinance,

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2014 ending with last Ordinance dated 30.05.2015 (page no.
114 of Special Civil Application No. 17653/18) providing for
Section 10A in the Central Act, 2013 which was exactly
similar to the present section 10A of the State Act, 2016.

8.36 It is submitted that Mr. M.C. Bhatt read the judgement
in Re: Delhi Laws Act reported in AIR 1951 SC 322,
relatively. Mr. Trivedi read paragraph 90 of the judgement to
support his submission that the action of the State cannot be
set aside on the ground of excessive delegation.

8.37 Mr. Trivedi reiterated his submission that Section 10A
does not suffer from the vice of excessive delegation.
Similarly, in exercise of Executive authority by issuing
notification dated 06.02.2018, such notification also is legal
and cannot be termed as having been so passed in exercise of
excessive delegation. In the submission of Mr. Trivedi,
sufficient guidelines have been laid down in Sections 105 and
113 read with the Removal of Difficulties Order which
provides a road map to the issuance of the notification and
exercise of powers under Section 10A of the Amending Act
and also grant of exemption to the Project under Section 10A
of the State Act 2016.

8.38 Mr. Trivedi submitted that Section 9 of the Central Act,
2013 (i.e. urgency provision) is in Chapter II thereof and
Section 40 of the Central Act, 2013 being integrally inter
linked therewith, does not and cannot debar the exercise of
power of granting exemption under Section 10A of the State
Act, 2016. Mr. Trivedi has relied on a decision in the case of
Harishankar Bagla and Another vs. State of Madhya

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Pradesh reported in AIR 1954 SC 465. Inviting our
attention to paragraphs no. 2, 8 and 9 of the judgement, Mr.
Trivedi submitted that the principle of law is clear that when
there is sufficient guidance in the Statement of Objects and
Reasons and also in the Act of 2013, and the legislative
policies laid down in Section 10A, it is not open for the
subordinate authority to work out the policy details within the
framework of such policy. In such exercise of power, the
notification under Section 10A dated 06.02.2018 has been
issued. He therefore submitted that the contention of the
petitioners that Section 10A gives unbridled power to the
Executive authority is misconceived.

8.39 Reliance was placed on a decision in the case of
Registrar of Co-operative Societies, Trivandrum and
Another vs. K. Kunhambu and Others reported in (1980)
1 SCC 340. He took us to paragraphs no. 5 and 9 to 13 to
contend that a good deal of latitude can be given to exercise
powers of delegated legislation and when there are sufficient
guidelines empowering such delegation, which is in
accordance with the scheme of the Act, such delegated
legislation is valid. Drawing support from the judgement of
the Supreme Court, Mr. Trivedi submitted that in the facts of
that case, the legislation was skeletal as compared to far
superior provisions in the present case i.e. Section 10A of the
Amending Act of 2016.

8.40 It is submitted by Mr. Trivedi that the petitioners having
realised that the provisions of the Amending Act of 2016 have
been exercised in accordance with the powers within the
framework of delegated legislation, they have focused their

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attack on the validity of the assent under Article 254(2) of the
Constitution, knowing fully well that otherwise they would fail
to assail the validity of the legislation.

8.41 Reliance has been placed on a decision of the Apex
Court in the case of Consumer Action Group vs. State of
Tamil Nadu and Others reported in (2002) 7 SCC 425.
Placing reliance on paragraphs no. 1, 5, 13 to 21 and 41 of the
judgement, Mr. Trivedi pointed out that if guidelines could be
gathered from the preamble, objects and reasons of other
provisions of the Acts and Rules, the courts while deciding the
validity of such provisions have to discover whether there is
any legislative policy, purpose of the statute or indication of
any clear will through its provisions. If there is such
satisfaction that itself is a guiding factor to be exercised by
the delegatee. In the facts on hand, this test is satisfied and
therefore there is no reason why the Amending Act suffers
from the vice of delegated legislation.

8.42 Next Mr. Trivedi relied on another decision of the Apex
Court in the case of K.T. Plantation Pvt. Ltd. and Another
vs. State of Karnataka reported in (2011) 9 SCC 1.
Reliance was placed on paragraphs no. 25 to 32, 53, 54, 60,
61, 67, 68, 119, 120, 163, 164, 182 and 189. Mr. Trivedi
taking us to the provisions under challenge in the judgement
submitted that the law is well settled. That the Court shall
not invalidate a legislation on the ground of delegation of
essential legislative function or on the ground of unguided,
uncontrolled and vague powers upon the delegatee without
taking into account the preamble of the Act. If the legislative
policy is formulated by the legislature, the function of

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supplying details may be delegated to the Executive. Looking
to the Statement of Objects and Reasons of the Act of 2016,
Mr. Trivedi submitted that it is apparent that the Amending
Act of 2016 has kept in mind the public purpose, the aspect of
compensation and the machinery of hearing the objections
and there are provisions akin to the Act of 2013 which makes
it possible for the Act to stand the test of validity. While
exercising powers of delegated legislation, sufficient care has
been taken keeping in mind provisions of Sections 105 and
113 of the Act of 2013. It is evident that the project on hand
is a project linear in nature. The Executive has been guided
by the preamble of the Act and thus guidelines have been
followed, the notification dated 06.02.2018 is also valid.

8.43 Adverting to the challenge in the context of Article 258
of the Constitution of India, Mr. Trivedi submitted that if the
provisions of Section 3(e)(i) and 3(e)(iv) are taken into
consideration, both the notifications dated 09.04.2018 issued
under Section 11 of the Act of 2013 and the subsequent
notification validating the Act are legal. Section 3(e)(i)
admittedly suggests that it is the State Government which is
the appropriate Government. At the point of time it was the
State Government which was the appropriate authority.
Reading clause (iv) of sub-section (e) of Section 3, it is the
contention that since the State Government is consulted by
the Central Government as the appropriate Government, the
State Government has equally a decisive role and therefore
the notification dated 09.04.2018 is valid.

8.44 Refuting the contention of the petitioners that the
notification dated 08.10.2018 was issued pending the petition,

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having realised their mistake, Mr. Trivedi submitted that it
cannot be ignored that the State Government is equally an
appropriate Government in our federal structure and the
Central Government has as such no supremacy in this field.
Annexures to the notification and the letters exchanged would
show that the Central Government and the State Government
have been in active consultation with each other.

8.45 With regard to the submission of Mr. Joshi that Articles
258 and 73 of the Constitution of India go hand in hand, Mr.
Trivedi submitted that in fact both the Articles are mutually
exclusive. Extensively reading the provisions of Article 73 of
the Constitution and thereafter Article 258 of the
Constitution, Mr. Trivedi submitted that the argument of Mr.
Joshi that the President cannot act and validate and exercise
or entrust powers of the Executive in the domain where the
borders of the Concurrent List begin, is incorrect. Article 258
stands exclusively on its own and since it begins with a non-
obstante clause, the expression "save as expressly provided"
in Article 73 would not in any manner implead the execution
or entrustment under Article 258 of the Constitution of India.
Mr. Trivedi submitted that the Presidential notification dated
08.10.2018 issued under Article 258 of the Constitution of
India entrusting the State Government, the executive
functions of the Union relating to land acquisition in question,
cannot be said to be beyond the authority of Article 258 of the
Constitution of India inasmuch as, the proviso to Article 73(1)
of the Constitution does not restrict the entrustment of the
executive power of the Union in the matters of the Concurrent
List, more particularly, in view of the non-obstante clause
used at the outset in Article 258(1) of the Constitution. This

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apart, Article 258 of the Constitution clearly provides extent
of executive power of the Union to any matter to which such
powers apply whereby the rigor of proviso to Article 73(1) has
been diluted.

8.46 Extensive reliance was placed on 'Constitutional Law
of India : A critical commentary' by Shri. H.M. Seervai
by stating that the pending words of Article 258(1) justify the
conferment of executive power on a State with its consent in
respect of all matters in list III. Article 258(1) contemplates
a situation where notwithstanding anything in the
Constitution, the President may, with the consent of the State,
entrust conditionally or unconditionally to the State
Government or its officers, functions in relation to any matter
to which the executive power of the Union extends.

8.47 Reliance was placed on several other decisions. The
first decision that was pressed into service was in the case of
M/s. Tinsukia Development Corporation Ltd. vs. State of
Assam reported in AIR 1961 Assam 133. Paragraphs no. 4
8 of the judgement was read to support his stand that
Article 73 operates in a restrictive manner and submission of
Mr. Joshi is not correct and in fact has been negated by the
judgement under reference. Recourse to Article 298 as per
the judgement would suggest that the executive power of the
Union shall extend to carry on with regard to acquisition etc.

8.48 Judgement in the case of Zubeda Begum and others
vs. Union of India reported in AIR 1971 Allahabad 452
has been relied upon in context of paragraphs no. 1 and 5 on
the similar lines. Decision in the case of Nandkumar s/o

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Madhukar vs. Union of India reported in AIR 1989 MLJ
833 with reference to paragraphs no. 8 9 was pressed into
service to contend that the non obstante clause in Article 258
can operate despite the proviso to Article 73(1) of the
Constitution of India. In the case of Jayantilal Amrit Lal
Shodhan vs. F.N. Rana reported in AIR 1964 SC 648,
paragraphs no. 1 to 4, 8,13 to 16 and 35 were relied upon. It
was Mr. Trivedi's submission that the term 'entrust' in Article
258 depends upon the field in which it operates. He
submitted that Article 258(1) enables the President to make a
blanket provision by issuing a notification in exercise of
powers of the legislature and entrust functions to the officers
on behalf of the President. By such entrustment of powers
under the statute, the notification merely authorizes the State
or an officer of the State under the circumstances within the
limits prescribed. That the Act can be validated is apparent
from such exercise of power vested in Article 258 of the
Constitution of India. Mr. Trivedi relied on a decision of the
Apex Court in the case of Samsher Singh vs. State of
Punjab and Another reported in (1974) 2 SCC 831. Our
attention was drawn to paragraphs no. 41 and 43 of the
judgement. This was to suggest that the judgement in the
case of Jayantilal Shodhan (supra) was followed by the
Apex Court in this decision.

8.49 To the submission of the petitioners that there cannot be
any retrospective operation or validation of the past
notification of 09.04.2018 by issuing notification of
08.10.2018, great emphasis was laid by Mr. Trivedi to suggest
that this was not a retrospective validation. Drawing our
attention to the notification dated 08.10.2018 in support of his

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submission, he stated that the notification clearly suggested
that all actions taken by the Government of Gujarat in relation
to the acquisition of land shall be deemed to have been taken
for and on behalf of the Central Government and shall be
deemed to be legal and valid for all purposes. This is in
accordance with the judgement in the case of Nandkumar
(supra) of the Bombay High Court.

8.50 This is a clear case where it is not a retrospective
validation but a ratification of an Act which it was otherwise
empowered to do. Reliance was placed on a decision in the
case of Maharashtra State Mining Corporation vs. Sunil
reported in (2006) 5 SCC 96, where it was held that
ratification is approval of an Act which was unauthorizedly
performed at the first instance. Mr. Trivedi submitted that in
this case if the President has ratified the entrustment, it
cannot be said to be in any manner bad because he was
otherwise empowered to do which has been done. Both
governments were competent to issue notifications. At best,
by the ratification if an Act or authority which was otherwise
competent has been ratified as permissible by the plenary
legislation, it cannot be said that it has been done for
validation restrospectively of an Act which was otherwise not
permissible.

8.51 The next judgement cited by Mr. Trivedi was in the case
of I.N. Saxena vs. State of Madhya Pradesh reported in
(1976) 4 SCC 750, paragraphs no. 5, 7, 9, 21 and 22.
This judgement was relied upon by Mr. Trivedi in support of
his submission that it is open for the legislature and/or the
executive authority to validate and remove the defect which

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may have occurred while enacting a previous law.

8.52 Mr. Trivedi further submitted that the word "entrust"
cannot be restricted only qua present or future acts. The
power of the President is akin to the power exercised by the
legislature and even when something of the past is ratified,
such entrustment is valid.

8.53 Mr. Trivedi then focused his arguments on the provisions
of Section 26 of the Act of 2013. He submitted that the
contention of Mr. Joshi that three parameters of Section 26
i.e. (a), (b) and (c) essentially depend on Section 26(1)(a) of
the Act. If the correct ASR value is not available, then an
assessment on all three fronts i.e. (a), (b) and (c) of Section
26(1) would fail. Mr. Trivedi submitted that this submission is
misconceived. In the event the correct market value under
Section 26(1)(a) is not available on the ground that the jantri
prices have not been revised after 2011, the Land Acquisition
Officer has the discretion to assess the market value as on the
date of the notification. It is in this context that the 3rd
proviso to Section 26 has to be read. The 3rd proviso cannot
be read to mean that the notification issued under Section 11
of the Act of 2013 would fail if the Collector has failed to take
steps to revise and update the market value of the land. In his
submission, the 3rd proviso to Section 26 in no manner
governs the three parameters of sub-section (1) of Section 26.

8.54 Mr. Trivedi submitted that it is only when all the options
prescribed under sub-sections (1) and (2) of Section 26 of the
Central Act, 2013 are not available that sub-section (3) of
Section 26 will come in play, wherein its 3rd proviso requires

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the revision of market value of the land on the basis of
prevalent market rate in that area. One cannot import into
the said provision, the revision of the last Annual Statement of
Rates (ASR). It merely means determination of updated
market value of land in a particular area where the land is
being acquired.

8.55 Mr. Trivedi has further relied on a decision of the Apex
Court in the case of Commissioner of Sales Tax, Uttar
Pradesh vs. Atmaram Misra reported in (1990) 2 SCC

388. This was in context of the submission that it is open for
the authorities to come to the market value of the land on
assessment of either of the three parameters, whichever is
higher. Paragraphs no. 7 and 9 to 11 were relied on to
contend that the provision contemplates a comparison of
either of the three clauses and of the three whichever is
higher coupled with the fact of the Land Acquisition Officer
having discretion to determine the value regardless of ASR is
always open. Reliance was also placed on the decision of the
Apex Court in the case of Narayan Chandra Ghosh vs. UCO
Bank reported in (2011) 4 SCC 548. Paragraphs no. 6 9
of the judgement were pressed into service in support of his
submission with regard to Section 26. He even otherwise
submitted that in any case if the landholder is aggrieved,
there are remedies available.

8.56 Mr. Trivedi submitted that even otherwise, sufficient
remedies are available under the Central Act, 2013 by virtue
of the provisions of Sections 64, 69 and 74 i.e. reference to
the authority to examine sufficiency and insufficiency of the
compensation determined by the Collector and appeal before

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the High Court respectively.

8.57 Adverting to the challenge of the petitioners to Section
31A of the Act with regard to objection of fixation of a ceiling
of 50%, Mr. Trivedi submitted that he makes it very clear that
the State is going to follow all the provisions right from
Sections 16 to 31 of the Act of 2013. The parameters of
Schedule II will be taken care of. Even otherwise, it is wrong
for the petitioners to contend that the provisions of Section
31A only provides competence to the State Government to pay
50% as rehabilitation and resettlement. In the event, it is
found that such an amount is less, there is a provision under
Rule 29(3) to follow the Schedule. The ground of challenge
that the figure of 50% is low or illusory is not correct. A
concrete situation has not arisen to gauge whether such a
situation is illusory. Reading Section 31A of the Act, Mr.
Trivedi submitted that it is "competent" for the State
Government and therefore reading such 'competence'
together with Rule 29(3), it is evident that in no case the
lumpsum amount will be less than one contemplated under
Schedule II of the Act.

8.58 Reliance was placed on a decision in the case of
Jhilubhai Nanbhai Khachar vs. State of Gujarat reported
in 1995 Supp(1) SCC 596, para 52. The mandate of the
law to determine compensation will be followed without
prejudice. The argument that 50% is not justified itself
cannot make the provision unconstitutional. Under Section
31A, it is competent for the State Government to determine
compensation. He submitted that a legislation, fixing the
amount of compensation, cannot be questioned on the ground

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that the amount so fixed is illusory since it is for the
Legislature to decide what should be the cut-off point for the
purpose of classification.

8.59 On the challenge in the petition to contend that the law
or the Amending Act is arbitrary, Mr. Trivedi submitted that it
is the case of the petitioners that the law is manifestly
arbitrary. The submission of the petitioners is that once the
acquisition is composite i.e. it is for the lands within the State
of Gujarat, Maharashtra and Dadra Nagar Haveli, to follow
the Social Impact Assessment chapter in Dadra Nagar
Haveli and not in Gujarat is violative of Article 14 of the
Constitution of India. Mr. Trivedi negated this submission by
saying that it is an admitted position that the State can enact
a law repugnant to that of the Central law and if the
assessment is held to be valid there is no need to look at the
legislative policy of the Central act. One cannot attack the
legislation on such a ground.

8.60 Mr. Trivedi submitted that the legislation made by one
State cannot be held to be discriminatory in nature merely
because similar legislation/s have not been made by the other
States. The citizens of the State of Gujarat cannot be said to
be deprived of Social Impact Assessment which is to take
place in the State of Maharashtra and the UT of Dadra
Nagar Haveli, more particularly when the Legislative Policy of
the State Act, 2016 is not to provide for such Social Impact
Assessment and hence, the exemption is granted from the
legislative policy of the Central Act, 2013 in regard to the
conduct of such Social Impact Assessment in the matter of
acquisition. The State Act, 2016 duly assented by the

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President overrides the above referred provisions of the
Central Act, 2013 within the territory of the State. Thus, two
laws enacted by two different Governments and by two
different legislatures can be read neither in conjunction nor
by comparison for the purpose of finding out if they are
discriminatory.

8.61 Reliance was placed on a decision in the case of Javed
vs. State of Haryana reported in (2003) 8 SCC 369,
paragraphs no. 3, 12 and 14. Drawing our attention to the
decision of the Hon'ble Supreme Court in the Triple Talaq
case rendered in Shayara Bano vs. Union of India
reported in (2017) 9 SCC 1, Mr. Trivedi invited our
attention to paragraphs no. 101 and 106 of the judgement
and submitted that it cannot be said that the legislation is
manifestly arbitrary. Manifestly arbitrary means when the
legislation is either capricious or unpredictable. This is not
shown by the petitioners. He submitted that the provisions of
the State Act, 2016 cannot be termed as manifestly arbitrary
inasmuch as except for Chapters II and III of the Central Act,
2013, all the remaining provisions thereof and more
particularly with reference to compensation, rehabilitation
and resettlement are applicable to the acquisition in question
whereby the landowners will not be deprived of just, fair and
reasonable compensation as provided in the 1 st Schedule as
well as the elements of Rehabilitation Resettlement as
provided in the 2nd Schedule to the Central Act, 2013.

8.62 In support of his submission, he also relied on a decision
in the case of State of Bihar and others vs. Bihar
Distillery Ltd. reported in (1997) 2 SCC 453, paragraphs

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no. 17 to 21 to contend that the Court must recognize
fundamental nature and importance of the legislative process
and accord due regard and deference to such process.
Presumption must always be in favour of the constitutionality
of the law. He submitted that while examining the challenge
to the constitutionality of an enactment, one is to start with
the presumption of constitutionality and the Court should
always put efforts to uphold the constitutionality of a statute
by giving purposive interpretation to the provisions, rather
than striking them down.

8.63 Summarizing his arguments, Mr. Trivedi stated that :

(a) The State has a valid assent. The assent is not
justiciable. The judgement in the case of Kaiser-I-Hind
(supra) is not applicable because requisition in the
present case is for a general assent and not a specific
one. The local conditions need not be looked into and as
read in paragraph no. 27 of the judgement, the scope of
inquiry with regard to the Presidential assent is limited.
If the assent is valid, even if the State Act is
regpugnant, the petitioners have no locus to challenge
such an Act.

(b) With regard to challenge of the vice of excessive
legislation, Mr. Trivedi submitted that there are
sufficient guidelines discerning from Section 10A itself.

Sections 5 and 113 of the Act of 2013 and the Removal
of Difficulties Order, when read in the context of the
Statement of Objects and Reasons of the Amending Act,
laid down the guiding principles which need to be

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followed in executing projects which are linear in
nature.

(c) Delegation of a legislative function is valid as the
Section namely Section 10A of the Act of 2013 itself says
what the legislative policy envisages.

(d) Under Section 10A of the Act of 2013, it is open for
the State to issue an exemption, and it cannot be said
that the project is only of the Central Government.
Requiring/Acquiring body consists of the State
Government. The project therefore is equally of the
State and therefore exemptions from the provisions viz-
a-viz the territories of Gujarat can be granted. The
contention of the petitioners that under Article 254 only
the law and not the bill can be sent for the assessment is
misconceived.

(e) With regard to question of how the appropriate
government is, it is apparent on reading Section 3(e)(iv)
that the Central Government acts in consultation with
the State Government and therefore it is open for the
State to make a law when both the governments are in
sync of either.

(f) Section 26 challenge has been dealt with by him and
it is not necessary that on absence of revision of ASRs
the notification under Section 11 should fail.

(g) With regard to Articles 73 and 258 of the
Constitution of India, he has made submissions that

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powers under Article 258 of the Constitution of India are
wide.

(h) There is no pre-determination in exempting such
projects from Chapters II III as it is evident that since
the project is linear in nature, there is minimum impact
on displacement and other such factors. Provisions of
Section 8(2) are complied with. When Section 16(31)
provisions will be followed, the contention of the
petitioners that the law should fail on the test under
Article 300A should fail. The law is not manifestly
arbitrary.

9. Mr. R.N. Singh and Ms. Archana Amin, learned
advocates appearing for NHSRCL and Railways respectively
pointed out that the railway corporation has a shareholding of
25% shares each of Gujarat and Maharashtra. Gujarat is an
equal stakeholder and therefore the appropriate government
is the State of Gujarat. Attention was drawn to pages 187 and
211 of the affidavit-in-reply in Special Civil Application No.
17653 of 2018 to suggest that the entire spirit of the Social
Impact Assessment is being taken care of.

10. Mr. Mihir Joshi, learned Senior Counsel appearing for
the petitioners, in rejoinder to the submissions made by the
learned Advocate General, on behalf of the State answered
them as under:

10.1 He reiterated that the challenge to Section 10A of the
Amendment Act of 2016 was on two grounds, namely that
firstly the assent was not validly obtained and if it was validly

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obtained then the exercise of such powers suffered from the
vice of excessive delegation.

10.2 To the State's response that they have the absolute right
to legislate and bring in a legislation, inconsistent with the
Central Act, he submitted that such a proposition disputed
and in fact clearly indicates that the State admits that the
Amending Act is inconsistent. However, what is significant is
that if the State law is inconsistent, then the law made by the
Parliament must prevail and the State law must give way to
the Parliamentary law.

10.3 Reiterating his submissions made on the basis of the
judgement in the case of Kaiser-I-Hind (supra), Mr. Joshi
submitted that obtaining of an assent is not a meaningless
exercise or an empty formality. The exercise is to be made
looking to the fact that it provides for an exception to the
Constitutional scheme and therefore as a necessary sequitur
the President must be apprised of the exact facts and the
specific points on which the assent is sought. If the assent
has to be meaningful, exact details of how the Act is
inconsistent or repugnant to the central legislation and what
is the need for buying in such a law are factors which need to
be placed before the President.

10.4 Emphasizing the language of Article 254 of the
Constitution of India, Mr. Joshi submitted that the Article was
specific. It was an exercise of giving an assent after it being
reserved for consideration. Therefore it is not a mere
formality. The State has failed to point out whether actual
facts having the nexus with the project, relevance and the

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objectives thereof need to be established to uphold the
sustainability of the decision on such objective facts. That if
relevant facts are not taken into consideration the assent
should be held to be invalid on the ground that there has been
no application of mind.

10.5 Under Article 254 of the Constitution of India, the
President exercises vast constitutional powers. Since the
subject is on the Concurrent List, the exercise of power by the
President becomes more relevant in the context of primacy of
the Parliament. It is incumbent to show what it is inconsistent
with and why and for what reasons the legislature of the State
wants the law. Such issues have to be apprised of to the
President, when seeking his assent.

10.6 Mr. Joshi referring to the judgement in the case of
Kaiser-I-Hind (supra) pointed out that the judgement
specifically referred to the judgement of the Bombay High
Court in Kaiser-I-Hind (supra). Drawing our attention to
the Bombay High Court judgement reported in AIR 1955
Bom 35, Mr. Joshi submitted that the principle is that the
State legislature if it wants to depart from the provisions of
law laid down by the Parliament it could do so provided it
satisfies the condition namely it reserves the Bill for
consideration of the President and he has given the assent.
The President should apply his mind to the local conditions.
The State cannot wish away the two factors i.e. it has to be
reserved for consideration and receive its assent after looking
into the local conditions.

10.7 Refuting the claim of the State, that what was sought for

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was general assent and not specific, Mr. Joshi, extensively
relied on various paragraphs in the judgement of Kaiser-I-
Hind (supra) to point out how and in what context can the
assent be said to be general assent. If there is an insertion of
few sections by way of an Amending Act of the State, the same
cannot be bringing out an entirely new State Act viz-a-viz the
Central legislation and therefore, when only specific sections
viz-a-viz the Central Act are amended, specific attention must
be drawn to the Sections sought to be inserted and how and in
what manner they are repugnant to the Parliamentary
legislation. The assent therefore has to be specific and can
never be general.

10.8 Mr. Joshi drew our attention to paragraph no. 10 at page
196 of the judgement in the case of Kaiser-I-Hind (supra)
which lay down the essentials of Article 254 of the
Constitution of India. Inviting our specific attention to
paragraph no. 14 of the judgement, Mr. Joshi submitted that
the words "reserved for consideration" would definitely
indicate that there should be active application of mind by the
President and the repugnancy must be pointed out between
the proposed State law. There should be a consideration as to
the necessity of having the state law which is repugnant to the
central law. According to Mr. Joshi, the question before the
Hon'ble Supreme Court in Kaiser-I-Hind (supra) was
whether the provisions of the Bombay Rent Act, 1947 having
been re-enacted after 1971 by the State Legislature with the
assent of the President must prevail in the State of
Maharashtra over the provisions of the PP Eviction Act?
Drawing our attention to paragraph no. 20 of the judgement,
he distinguished and submitted that it was not restricted to

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the specific assent as canvassed by the State. The context of
specific assent was in relation to a specific law A or law B.
however, it was undisputed that the proposal of the State
pointing out repugnancy between the State law and the law
made by the Parliament was a sine qua non for
"consideration" and "assent". The contention of the State that
the Statement of Objects and Reasons provides sufficient
guidelines, is misconceived.

10.9 The concept of general assent has to be seen on the
appreciation in context of a entire new State law brought out
in juxtaposition of the Central law. This is not the case here.
Here is a case where specific provisions are sought to be
inserted by way of the Amending Act and therefore specific
attention has to be drawn of how the inserted amendments
are repugnant to the parallel provisions of the Central Act.
He emphasized that the assent of the President under Article
254 is not an idle formality. According to Mr. Joshi, when the
State concedes that paragraph no. 27 of the judgement lays
down the ratio that applies to the case, admittedly the three
ingredients have not been followed and the assent should
therefore fail.

10.10 Mr. Joshi then sought to distinguish the judgement
relied upon by the Advocate General Mr. Trivedi in the case of
Rajiv Sarin (supra). He submitted that the judgement in
fact supports him by saying that the President has at least to
be apprised of the reason why his assent is sought. Reading
of the proposal sent in the facts of the case indicates absence
of such material. The term "general" or "specific" assent has
to be in context of a particular Act for which assent is sought.

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When the assent of a specific section for a specific purpose is
sought, consideration of general assent would not weigh.
Ambit of the assent here would suggest that it had to be
specific.

10.11 Referring to the decision of the Supreme Court in
the case of Yogendra Kumar Jaiswal reported in (2016) 3
SCC 183 and distinguishing the facts therein, it is submitted
that in that case the letter of the State did not point out
repugnancy of provisions of one law with the provisions of
certain other Acts, whereas, in the case on hand, what was
essential to be pointed out is that letter ought to have drawn
how the State Act's amending provisions were repugnant to
the sections of the legislation/law containing the provisions of
the Central law occupying the same field. He drew our
attention to the letters in the present set of facts, particularly
letters dated 26.04.2016 and 21.05.2016 which showed that
there was absence of any material to show how there was
repugnancy.

10.12 Drawing our attention to the chart annexed with
the letters, Mr. Joshi submitted that selective amendments
have been made to the Central Act. No specific attention has
been drawn to the provisions of the the Central Act such as
Sections 9 and 40, which provisions would make the
provisions of the State Act repugnant. The local needs are
sought to be answered by relying on the Statement of Objects
and Reasons. A justification is given by treating that the
exemption of Social Impact Assessment is a "procedural part".
What Section 10A chalks out are the same projects which are
shown as ones under Section 2 of the Act of 2013 and

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therefore the scope of "public purpose" is restricted as per
the spirit of the Central Act. If that be so, Section 10A which
lays down same projects cannot claim exemptions from Social
Impact Assessment except that such justification is sought to
be made on ground of carrying out linear projects. The
justification of such projects finds its mention only in Section
31A of the Amending Act which deals with the aspect of
compensation only.

10.13 The other aspect is that the concept of linear
projects is only viz-a-viz the food security. Justification cannot
be sought to the enactment by reading the Statement of
Objects and Reasons or by supplementing such reasons by an
affidavit. The justification to do away with Social Impact
Assessment because it is a lengthy procedure, is no ground.
The language of Section 10A present a fait accompli as
projects are already proposed to be exempted.

10.14 It is no defence to the challenge on the ground of
excessive delegation for the State to justify it by saying that
the SOR provides discernible guidelines. Inviting our
attention to the judgement reported in Consumer Action
Group (supra), Mr. Joshi submitted that while exercising
delegated legislation unless the legislature declares the policy
of law and the legal principles and must provide a standard to
guide the officials. In absence thereof, the Act of legislative
delegation must fail.

10.15 The Amending Act of 2016 of Gujarat has no
preamble. Direct incorporation of Section 10A which shows
all projects which are also prevalent in the Central Act. There

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is no legislature policy that can be evinced to show guidance
to seek exemption. Under what discernible principles is the
concept of "public purpose" under the Central Act different
from the Amending Act of 2016 of Gujarat and "public
purpose" thereunder, is absent, when the projects are
overlapping. If both speak of same projects then under what
circumstances, the heart of the Central Act i.e. the Social
Impact Assessment and rehabilitation and resettlement is
being given a go-by is not stated.

10.16 Referring to the judgement of the Apex Court in
the case of K.T. Plantation Pvt. Ltd. (supra), Mr. Joshi
submitted that present is a case of unguided, uncontrolled
powers of delegation.

10.17 The exemption notification is issued on an
assumption that Section 10A is valid. Once the challenge to
Section 10A is valid, the notification will go. On reading the
notification dated 06.02.2018 no principles of guiding factors
are discernible. The exemption is project specific under the
cloak of public purpose.

10.18 It is difficult to comprehend that SOR talks of
exemption from Social Impact Assessment as the procedure of
land acquisition is lengthy whereas to pay obeisance to an
agreement, a private agency which has no relevance is
making an assessment report. The report cannot be justified
to be one akin to Social Impact Assessment as there is a mere
statistical data collection without the active involvement of
stakeholders in accordance with the provisions of the Act of
2013. Rather than undertake such an exercise, under the

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pretext of a lengthy procedure, which has taken over three
years it could have been carried out under the Rehabilitation
and Resettlement Act and this shows that the entire study is
carried out and the collection of data is only a mere formality.

10.19 Private players are even contemplated as is evident
on reading Section 7 of the Act of 2013. There is a provision
for study by expert groups. There is no reason why procedure
under the Chapters II and III through the machinery was not
followed.

10.20 M/s. Arcadis has been commissioned at the
instance of NHSCR. It is no substitute to the Social Impact
Assessment under the Act. Violation of Article 14 is writ large
when Social Impact Assessment is carried out for Dadra and
Nagar Haveli lands and not for Gujarat. The dichotomy of
Section 10A is evident. Section 10A has no application to
interstate projects whereas the project which is interstate
exempts Gujarat from Social Impact Assessment.

10.21 As far as the judgement of the Supreme Court in
the case of Consumer Action Group (supra) is concerned,
Mr. Joshi submitted that the judgement is a compendium of
case laws on delegated legislation and he reiterated the three
principles on which the test whether the delegated legislation
is excessive or not needs to be seen. Mr. Joshi submitted that
the nature of the power exercised by the State in bringing in
Section 10A and exempting of projects pole vaults into giving
exemption over all without any limits. The enactment can be
set aside and should be, as it does not have any guidelines to
the manner in which it could operate and therefore is bound

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to be abused.

10.22 Mr. Joshi invited our attention to Rule 7 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Rules, 2013.
Particular attention of ours was drawn to Rule 7 to suggest
that while undertaking public hearing, the administrator has a
mandate to take into account Social Impact Assessment report
and in the present circumstances has been give a go-by.

10.23 On the submission of the learned Advocate General
in connection with Article 258 of the Constitution of India, Mr.
Joshi submitted that it is submission of the State that they
have ratified, by bringing in the notification dated 08.10.2018,
acts which were otherwise invalid. He reiterated his
submission that if the language of Article 258 is seen, the
word is "entrustment" and as far as the State is concerned,
there is no entrustment as per their submission too. Even the
State says that it is ratification. If the sub-clause (b) of the
notification dated 08.10.2018 is read, Mr. Joshi pointed out
that the language of sub clause (b) suggests that what the
State has done is only giving a declaration that what actions
the Government of Gujarat has taken shall be deemed to have
been taken for and on behalf of the Central Government. That
is no ratification but a declaration. In any case, according to
Mr. Joshi, can such an exercise be called entrustment as the
spirit of Article 258 would suggest. According to Mr. Joshi, in
any case, it runs contrary to the definition of appropriate
government in Section 3(e)(iv) of the Act of 2013. There
cannot be a validation of something which is impermissible.
The terminology "deemed" is in conflict with the term

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"entrust". If it is validation, then it is certainly no permissible
and it goes against the definition of "appropriate government"
and what was submitted can never be intended to be so.

10.24 With regard to the judgement in the case of
Maharashtra State Mining Corporation vs. Sunil (supra),
Mr. Joshi submitted that this judgement would not apply in
the present case as it did not deal with ratification of an
action taken in exercise of statutory powers. He relied on a
decision of the Apex Court in the case of Marathwada
University vs Seshrao Balwant Rao Chavan reported in
(1989) 3 SCC 132. He read paragraphs no. 25 and 27 of the
judgement to suggest that the principles of ratification do not
have any application with regard to exercise of powers
conferred under statutory provisions. The statutory authority
cannot travel beyond the power conferred and any action
without power has no legal validity. It is ab-initio void and
cannot be ratified. If that is accepted, then it is not
entrustment as canvassed by the State.

10.25 On the decision in the case of I.N. Saxena
(supra), Mr. Joshi submitted that there is an essential
distinction between ratification and validation. Validation is
removal of a defect. In the present case, when it is apparently
not within the power of the State to issue a notification there
can be no validation and such act would not cure the defect.
Exemption granted under Section 10A would not stand
validated by exercise of powers under Article 258 of the
Constitution. Powers under Section 10A can only be
exercised if the State had the authority. Evidently, the State
has no authority and therefore such power is not validly

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exercised.

10.26 On the judgement cited by Mr. R.N. Singh, learned
advocate appearing for the Railways in the case of Bondu
Ramaswamy vs. Bangalore Development Authority
reported in (2010) 7 SCC 129, Mr. Joshi distinguished the
said judgement. With regard to the contention that the
notification under Section 11 is valid even if it is issued by the
State to say that Article 258 has been followed out of
abundant caution is misconceived. To the submission with
regard Section 3(e)(iv) of the Act when the learned Advocate
General submitted it is not only the Central Government but
the Central Government in consultation with the State, that
itself would according to Mr. Joshi not bestow powers on the
State also to exercise powers of the appropriate government.
It does not give the jurisdiction of the consultor. In support of
this submission, Mr. Joshi relied on the decision of the Apex
Court in the case of Madan Mohan Chaudhary vs. State of
Bihar and Others reported in (1999) 3 SCC 396
paragraph no. 27 (Page 409) of the judgement to suggest
that the consultor cannot delegate his function. He also relied
on a decision of the Apex Court in the case of Ram Tawakya
Singh and Others vs. State of Bihar and Others reported
in (2013) 16 SCC 206, para 29 to suggest that it is the
consultor that is the Central Government which is the final
decidor.

10.27 Mr. Joshi argued that Section 26 provides for
determination of market value. The market value has to be
determined from either of the three namely sub-clause (a), (b)

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or (c) whichever is higher. The State's definition that there
need not be revision of the annual statement rate because
they are taking care of the market value of the land through
the indexation formula as referred to in their affidavit, is not
the answer. According to Mr. Joshi, there can be no
independent valuation sans Section 26 of the Act. The section
provides for valuation from either of the three components
whichever is higher and as per clause (a) the true market
value of the land will never be reflected unless the ASR is
revised. It is not open for them to show that they are doing
what the law requires them to do, i.e. assessing the market
value of the land in accordance with the formula reiterated in
their affidavit-in-reply. Indexation and calculation of
compensation on such formula is not the answer to
compliance of Section 26 of the Act. It is very clear that the
higher amounts of the compensation, as per the resolutions is
only applicable in awards passed by consent. The suggestion
is very clear that if you consent you get a higher amount
otherwise not. The contention of the State that the 3 rd proviso
does not apply to the components of clauses (a), (b) and (c) is
misconceived because if the proviso is read it its true spirit it
speaks of the Collector to revise and update the market value
before initiation of any land acquisition proceedings.
Obviously, therefore, the criteria envisages under sub-section
(1) of Section 26 and the proviso are co-related.

10.28 Mr. Joshi submitted that the decisions cited at the
bar in the case of Commissioner of Sales Tax, Uttar
Pradesh (supra) and in the case of Narayan Chandra
Ghosh (supra), do not apply to the interpretations for the
purposes of Section 26. Both these are for the question of

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compulsory pre-deposit under the taxation laws. They have
no connection to such beneficial provisions of assessment of
the true market value in context of the Acquisition Act of
2013.

11. Mr. A.J. Yagnik, learned advocate invited our attention to
Section 23 of the Land Acquisition Act, 1894. In accordance
with the section, in determining the award of compensation
to be awarded for land acquired under the old Act, the Court
shall take into consideration the market value of the land on
the date of the publication of the notification. Section 26 of
the Act of 2013, according to Mr. Yagnik, suggests that the
Collector has to adopt a criteria for assessing and determining
the compensation. In assessing and determining the market
value of the land, he has to take into consideration
registration of sale deeds, as the case may be. In such
valuation process, naturally therefore, the Collector has to fall
back on the annual statement of rates/jantri. Even under
Section 109, the authority has power to make rules. If the
power of the appropriate government to make rules is seen
under Section 109, the State Government is not invested with
powers to make resolutions viz-a-viz Section 26 of the Act.
Revision of jantri is a sine qua non for awarding fair
compensation. He invited our attention to paragraph no. 3 of
the statement of objects and reasons and suggested that even
while enacting the Act of 2013, the fears that the Land
Acquisition Act of 1894 was a lengthy process, was taken care
of and it was with these fears in mind that the Act of 2013 was
enacted.

11.1 The State's philosophy in bringing in the Amending Act

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of 2016 is therefore not different from the philosophy of the
Union. All facets which the State wishes to bring in with
regard to the procedure has been taken care of by the Central
Government and therefore there is no need for bringing in the
Amending Act of 2016. Inviting our attention to clauses 20 to
24 of the Statement of Objects and Reasons, he insisted that
emphasis has been laid in the Act for taking care of the
Scheduled areas under the Panchayat and the basic minimum
that all projects leading to displacement of people who have a
Social Impact Assessment through a participatory and a
transparency process.

11.2 Mr. Yagnik handed over a separate compilation of
relevant documents inviting our attention to the resolution
dated 18.04.2011. He submitted that the last revision of ASR
was done in the year 2011 and no further revision has been
done. He invited our attention to the notification bringing in
the Gujarat Stamp Rules, 1984 dated 21.03.2016 and as per
Rule 5 there is a mandate that the State government shall
prepare annual statement of rates which has not been done.
Such amendment has been made with a purpose and
therefore the State has a statutory obligation which it has not
followed. Relevant pages of the report of the Comptroller and
Auditor General were brought to our notice that the impact
the State's revenue has had because there has been no
revision of the annual statement of rates. Our attention was
also drawn to the judgement of this Court (Coram : Hon'ble
Mr. Justice A.S. Dave) rendered in Special Civil Application
No. 6647 of 2008. He invited our attention to paragraphs no.
12 15 of the judgement and suggested that the jantri
relevance has been explained and how revision of jantri is

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relevant.

11.3 Relying on a decision of the Apex Court in the case of
Arun Kumar Agrawal vs. Union of India and Others
reported in (2013) 7 SCC 1, Mr. Yagnik relied on
paragraphs no. 54 to 70 of the judgement pointing out that
they deal with a situation as to how the Comptroller and
Auditor General's report has to be dealt with. Pointing out
relevant paragraphs, especially, paragraph no. 68 of the
judgement, Mr. Yagnik submitted that since the report is from
a constitutional functionary, it commands respect and cannot
be brushed aside.

11.4 Mr. Yagnik drew our attention to the compilation at
pages 100 and 104 of the paper book, more particularly to the
FAQs. Our special attention was drawn to question no. 10 at
page 106 which dealt with the question of how will the
properties acquired for the project be compensated. There
also the base was the jantri rate which will be the one
prevailing. According to him this is what the National High
Speed Railway Project had assured and they are not following
such assurances. At page 122, according to Mr. Yagnik, a
tabulation is given as to how the amounts are calculated for
making a consent award which also is based on jantri.

11.5 Reliance was placed on the Division Bench judgement of
this Court in Special Civil Application No. 7215 of 2018
rendered on 26.11.2018 wherein this Court though did not
get into the merits of the case which was in context of
acquisition of lands for the National Highway Authority, he
suggested that though the jantri rates were Rs.193/-, when

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the lands were acquired for the railways, the computation was
at Rs.2403/-. Drawing the analogy to the proviso to Section
32A of the Gujarat Stamp Act, Mr. Yagnik submitted that the
proviso would suggest that when the government deals with
properties, the market value on such dealing on the part of
the government would be the correct market value. If that
was so, in case of National Highways Authority, the same
analogy would apply to rail projects where lands are almost
adjacent to in most of the areas.

11.6 Mr. Yagnik further submitted that they do not press the
challenge to Section 40 of the Amending Act of 2016.

12. Mr. Trivedi suggested that he would need to clarify in
respect of four things that the advocate for the petitioners
have argued in the rejoinder namely with respect to (1) assent
(2) excessive delegation (3) on the question of Article 258 and
(4) and with regard to Section 32A of the Stamp Act.

12.1 Drawing our attention to the judgement of the Apex
Court in the case of P.N. Krishna Lal and Others vs. Govt.
Of Kerala and Another reported in (1995) Supp 2 SCC
187, more particularly paragraphs no. 12 to 14, he suggested
that this judgement is good law. This judgement talks of the
requirement as provided under Article 254 of the Constitution
of India. In Mr. Trivedi's submission, it is not necessary that
each and every specified provision of the Central Act or the
Acts on the inconsistency or repugnancy of such provision
should be pointed out to the President. It is submitted that
once the assent of the President is sought and given to the
State Amendment, though to some extent inconsistency or

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repugnancy exists between any provision, part or parts of any
Act or Acts, the repugnancy or inconsistency ceases to
operate in relation to the State in which the assented State
enacts law. He stated that when the communications
addressed to the President in the case of Kaiser-I-Hind
(supra) or Yogendra Kumar Jaiswal (supra) are compared
to those of the present, it is apparent that the concern of local
needs is reflected in the Statement of Objects and Reasons.

12.2 Talking about excessive delegation, Mr. Trivedi pointed
our attention to the judgement in the case of Consumer
Action Group (supra) paragraph no. 13. It was submitted
by Mr. Trivedi that it was wrong for Mr. Joshi, learned
advocate for the petitioners to rely on paragraph no. 14 of the
judgement because in fact what was recorded in paragraph
no. 14 were the contention of learned counsel in the case of
Harishankar Bagla and Another (supra). He invited our
attention to the judgement in the case of the Harishankar
Bagla and Another (supra) and suggested that in fact after
recording the contention the Court negated the said
contention and submitted that when there is sufficient
guidance to the Central Government, the delegated legislation
has to be upheld. In this case it is so. The exemption orders
in judgement of Consumer Action Group (supra) cannot be
compared vis-a-vis the once in the case on hand. He invited
our specific attention to paragraph no. 23 of the judgement
and submitted that there is nothing to show in the facts of the
case that the orders are contrary to the State Act and that the
exemption notifications cannot be said to be running against
the State. He submitted that the said judgement in the case

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of Consumer Action Group (supra) cannot be relied upon
by the petitioners to invalidate the said exemption notification
inasmuch as in the said case, as observed in para 23 of the
said judgement, the exemption orders were passed in utter
disregard of the policy of the Act and in contravention of the
provisions thereof of the Act and that too, without assigning
any reason. However, in the present case, exemption
notification dated 06.02.2018 and other such similar
notifications have been issued in furtherance of the policy of
the State Act, 2016 and the same do not run contrary to any of
the provisions of the State Act, 2016.

12.3 As far as submission with regard to Article 258 of the
Constitution of India is concerned, Mr. Trivedi submitted that
the judgements cited did have relevance. The words
'ratification' and 'validation' though used in a different
context inasmuch as it will be the executive Acts which will be
ratified and the legislative, validated, the net result is the
same.

12.4 Inviting our attention to the judgement in the case of
Jayantilal Amrit Lal Shodhan (supra), paragraph no. 16,
he reiterated that under Article 258 of the Constitution of
India, the President has blanket powers enabling him to issue
a notification to exercise the power which the legislature
could exercise by legislation, to entrust functions to the
officers to be specified in that behalf by the President.
Whatever the President does under Article 258 of the
Constitution is in fact what the legislature could do. Inviting
our attention to the minority view in paragraph no. 33 of the
judgement, Mr. Trivedi submitted that the word 'entrust' or

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'entrustment' is also when functions of the State Governments
or its officers are delegated by creating agency to carry out
executive powers of the Union which vests in the process. In
other words, it is possible to clarify entrustment both as
executive as well as legislative.

12.5 Inviting our attention to the notification dated
08.10.2018 at page 146 of the reply in Special Civil
Application No. 17653 of 2018, Mr. Trivedi submitted that it
is wrong for Mr. Joshi to contend and rely only on clause (b).
'Entrustment' is apparent when one reads clause (a) which
says that the function of the Central Government as
appropriate government under the Act may be performed by
the Government of Gujarat. This is entrustment of function as
envisaged under Article 258 of the Constitution. Clause (a) is
therefore exercise of power to remove the defect and
therefore the contention that the defect cannot be cured
because the Act itself is void is incorrect. The notification
dated 09.04.2018 issued by the State as an appropriate
government is valid and by exercise of powers and issuing a
notification of 08.10.2018 what is done is that the defect is
removed by entrustment of power as per clause (a). He
invited our attention to paragraph no. 6 of the judgement in
the case of Punjab University and Others vs. V.N. Tripathi
and Another reported in (2001) 8 SCC 179, paragraphs
no. 6 to 8 and submitted that the ratification has the effect of
relating back to the time when action was taken by the
authority. In his submission, the judgement in the case of
Marathwada University (supra) would not apply to the
facts of the case and is misconceived inasmuch as in the said
case as discussed in paragraph no. 23, the statute had barred

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such a ratification whereunder, the Executive Council could
not have ratified the action of Vice-Chancellor under Section
24(1)(xii) of Marathwada University Act, 1974, without the
approval of the Chancellor. Such a bar is not available under
Article 258 of the Constitution. Exercise of powers by the
President available under Article 258 of the Constitution is
blanket and not conditional or subject to any approval. He
submitted that this is very well explained in the case of
Punjab University and Others (supra).

12.6 Mr. Trivedi further submitted that when the judgement
in the case of I.N. Saxena (supra) is seen particularly
paragraphs no. 3 9 read with paragraph no. 23 what it
suggests is that what was not earlier a part of the clause is
inserted by way of an amendment subsequently, a valid
legislation has been brought and by introducing such an Act,
the memorandum effectively cures the defect. Such is the
case on hand and therefore exercise of powers under Article
258 is valid.

12.7 In other words, Mr. Trivedi submitted that by virtue of
issuance of the presidential notification, mainly two actions
came to be taken, viz.

(a) Removal of defect vide clause (a) of the said
Notification by entrusting the functions of the Union to
the Government of Gujarat, in the absence whereof,
defect had occurred in issuing a Preliminary Notification
dated 09.04.2018 by the State Government under
Section 11 of the Central Act, 2013 and,

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(b) Validation of the said defect with retrospective effect
i.e. all the actions taken by the State Government right
from 11.04.2018 have stood validated.

12.8 Mr. Trivedi submitted that the objective of Social Impact
Assessment as provided under Section 8(2) of the Central Act,
2013 is to enable the appropriate Government to recommend
such area of acquisition, which ensures - (i) minimum
displacement of people, (ii) minimum disturbance to
infrastructure and ecology; and (iii) minimum adverse impact
on the individuals affected. The aforesaid objective has
otherwise been taken care of in the present matter in view of
similar district-wise Social Impact Assessment already carried
out by an independent agency, M/s. Arcadis Pvt. Ltd.
appointed by NHSRCL under the supervision of JICA coupled
with the fact that the project in question is admittedly linear
in nature.

12.9 As regards the submission made by Mr. Yagnik on
Section 32A of the Gujarat Stamp Act, it was submitted by Mr.
Trivedi that it just provides a rough guide.

12.10 As regards argument that the entire procedure for
coming to assessment of fair compensation is concerned, it
was submitted that the stage has yet not come. In accordance
with and keeping in mind the provisions of Section 15 of the
Act, public hearing shall be given and care will be taken to see
that rehabilitation and resettlement will certainly be in
compliance of the provisions of the Act of 2013.

12.11 With regard to the Comptroller and Auditor

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General's reports, Mr. Trivedi relied on judgement of the Apex
Court in the case of Pathan Mohammed Suleman
Rehmatkhan vs. State of Gujarat and Others reported in
(2014) 4 SCC 156 paragraphs no. 7 and 12 thereof to
suggest that whether the report of the CAG itself can legally
be made the basis of relief of the petition. It was submitted
that it would not be proper to refer to the findings and
conclusions contained in such report. He submitted that the
CAG report being subject to scrutiny by Public Accounts
Committee and the Joint Parliamentary Committee, its
findings and conclusions cannot be referred to and relied
upon in any collateral proceedings. Reliance was also placed
on a decision in the judgement of the Apex Court in the case
of Centre for Public Interest Litigation and Others vs.
Union of India and Others reported in (2012) 3 SCC 1,
paragraph no. 71.

PART - II

13. We have extensively heard learned Counsels appearing
for the respective parties and have gone through the
documents placed on record. Before we proceed further, it
would be relevant to notice certain provisions and sections of
the Act of 2013, which are relevant for our purpose, to
address the issue involved in the present petitions. The same
are reproduced hereinbelow for ready reference.

RIGHT TO FAIR COMPENSATION AND TRANSPARENCY
IN LAND ACQUISITION, REHABILITATION AND
RESETTLEMENT ACT, 2013.

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INTRODUCTION

The Land Acquisition Act, 1894 was a general law
relating to acquisition of land for Public purposes and also for
companies and for determining the amount of compensation
to be made on account of such acquisition. The provisions of
the said Act was found to be inadequate in addressing certain
issues related to the exercise of the statutory powers of the
State for involuntary acquisition of private land and property.
The Act did not address the issues of rehabilitation and
resettlement to the affected persons and their families. There
had been multiple amendments to the Land Acquisition Act,
1894 not only by the Central Government but by the State
Governments as well. However, there was growing public
concern on land acquisition, especially multi-cropped irrigated
land. There was no central law to adequately deal with the
issues of rehabilitation and resettlement of displaced persons.
As land acquisition and rehabilitation and resettlement were
two sides of the same coin, a single integrated law to deal
with the issues of land acquisition and rehabilitation and
resettlement was necessary.

The Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013
addresses concerns of farmers and those whose livelihoods
are dependent on the land being acquired, while at the same
time facilitating land acquisition for industrialization,
infrastructure and urbanization projects in a timely and
transparent manner.

This Act represents a change in the legislative approach
to land acquisition. It introduces for the first time provisions
for social impact analysis, recognizes non-owners as affected
persons, a mode of acquisition requiring consent of the
displaced and statutory entitlements for resettlement. In
addition, it has restricted the grounds on which land may be
acquired under the urgency clause.

STATEMENT OF OBJECTS AND REASONS

The Land Acquisition Act, 1894 is the general law
relating to acquisition of land for public purposes and also for
companies and for determining the amount of compensation
to be made on account of such acquisition. The provisions of
the said Act have been found to be inadequate in addressing
certain issues related to the exercise of the statutory powers

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of the State for involuntary acquisition of private land and
property. The Act does not address the issues of rehabilitation
and resettlement to the affected persons and their families.

2. The definition of the expression "pubic purpose" as
given in the Act is very wide. It has, therefore, become
necessary to re-define it so as to restrict its scope for
acquisition of land for strategic purposes vital to the State,
and for infrastructure projects where the benefits accrue to
the general public. The provisions of the Act are also used for
acquiring private lands for companies. This frequently raises a
question mark on the desirability of such State intervention
when land could be arranged by the company through private
negotiations on a "willing seller-willing buyer" basis, which
could be seen to be a more fair arrangement from the point of
view of the land owner. In order to streamline the provisions
of the Act causing less hardships to the owners of the land
and other persons dependent upon such land, it is proposed
repeal the Land Acquisition Act, 1894 and to replace it with
adequate provisions for rehabilitation and resettlement for the
affected persons and their families.

3. There have been multiple amendments to the
Land Acquisition Act, 1894 not only by the Central
Government but by the State Governments as well.
Further, there has been heightened public concern on
land acquisition, especially multi cropped irrigated land
and there is no central law to adequately deal with the
issues of rehabilitation and resettlement of displaced
persons. As land acquisition and rehabilitation and
resettlement need to be seen as two sides of the same
coin, a single integrated law to deal with the issues of
land acquisition and rehabilitation and resettlement has
become necessary. Hence the proposed legislation
proposes to address concerns of farmers and those
whose livelihoods are dependent on the land being
acquired, while at the same time facilitating land
acquisition for industrialization, infrastructure and
urbanization projects in a timely and transparent
manner.

4. Earlier, the Land Acquisition (Amendment) Bill, 2007
and Rehabilitation and Resettlement Bill, 2007 were
introduced in the Lok Sabha on 06th December, 2007 and were
referred to the Parliamentary Standing Committee on Rural

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Development for Examination and Report. The Standing
Committee presented its reports (the 39th and 40th Reports) to
the Lok Sabha on 21st October, 2008 and laid the same in the
Rajya Sabha on the same day. Based on the recommendations
of the Standing Committee and as a consequence thereof,
official amendments to the Bills were proposed. The Bills,
alongwith the official amendments, were passed by the Lok
Sabha on 25th February, 2009, but the same lapsed with the
dissolution of the 14th Lok Sabha.

5. It is now proposed to have a unified legislation
dealing with acquisition of land, provide for just and fair
compensation and make adequate provisions for
rehabilitation and resettlement mechanism for the
affected persons and their families. The Bill thus
provides for repealing and replacing the Land
Acquisition Act, 1894 with broad provisions for
adequate rehabilitation and resettlement mechanism for
the project affected persons and their families.

6. Provisions of public facilities or infrastructure often
require the exercise of powers by the State for acquisition of
private property leading to displacement of people, depriving
them of their land, livelihood and shelter, restricting their
access to traditional resource base and uprooting them from
their socio-cultural environment. These have traumatic,
psychological and socio-cultural consequences on the affected
population which call for protecting rights particularly in case
of the weaker sections of the society including members of the
Scheduled Castes (SCs), the Scheduled Tribes (STs), marginal
farmers and their families.

7. There is an imperative need to recognize
rehabilitation and resettlement issues as intrinsic to the
development process formulated with the active participation
of affected persons and families. Additional benefits beyond
monetary compensation have to be provided to families
affected adversely by involuntary displacement. The plight of
those who do not have rights over the land calls for a broader
concerted effort on the part of the planners to include in the
displacement, rehabilitation and resettlement process
framework, not only for those who directly lose their land and
other assets but also for all those who are affected by such
acquisition. The displacement process often poses problems
that make it difficult for the affected persons to continue their

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traditional livelihood activities after resettlement. This
requires a careful assessment of the economic disadvantages
and the social impact arising out of displacement. There must
also be holistic effort aimed at improving the all-round living
standards of the affected persons and families.

8. A National Policy on Resettlement and Rehabilitation
for Project Affected Families was formulated in 2003, which
came into force with effect from February, 2004. Experience
gained in implementation of this policy indicates that there
are many issues addressed by the policy which need to be
reviewed. There should be a clear perception, through a
careful quantification of the costs and benefits that will accrue
to society at large, of the desirability and justifiability of each
project. The adverse impact on affected families-economic,
environmental, social and cultural must be assessed in
participatory and transparent manner. A national
rehabilitation and resettlement framework thus needs to apply
to all projects where involuntary displacement takes place.

9. The National Rehabilitation and Resettlement Policy,
2007 has been formulated on these lines to replace the
National Policy on Resettlement and Rehabilitation for Project
Affected Families, 2003. The new policy has been notified in
the Official Gazette and has become operative with effect
from the 31st October, 2007. Many State Governments have
their own Rehabilitation and Resettlement Policies. Many
Public Sector Undertakings or agencies also have their own
policies in this regard.

10. The law would apply when Government acquires
land for its own use, hold and control, or with the ultimate
purpose to transfer it for the use of private companies for
stated public purpose or for immediate and declared use by
private companies for public purpose. Only rehabilitation and
resettlement provisions will apply when private companies
buy land for a project, more than 100 acres in rural areas, or
more than 50 acres in urban areas. The land acquisition
provisions would apply to the area to be acquired but the
rehabilitation and resettlement provisions will apply to the
entire project area even when private company approaches
Government for partial acquisition for public purpose.

11. "Public purpose" has been comprehensively defined,
so that Government intervention in acquisition is limited to
defence, certain development projects only. It has also been

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ensured that consent of at least 80 per cent, of the project
affected families is to be obtained through a prior informed
process. Acquisition under urgency clause has also been
limited for the purposes of national defence, security purposes
and Rehabilitation and Resettlement needs in the event of
emergencies or natural calamities only.

12. To ensure food security, multi-crop irrigated land
shall be acquired only as a last resort measure. An equivalent
area of culturable wasteland shall be developed, if multi-crop
land is acquired. In districts where net sown area is less than
50 per cent, of total geographical area, no more than 10 per
cent of the net sown area of the district will be acquired.

13. To ensure comprehensive package for the land
owners a scientific method for calculation of the market value
of the land has been proposed. Market value calculated will be
multiplied by a factor of two in the rural areas. Solatium will
also be increased upto 100 per cent of the total compensation.
Where land is acquired for urbanization, 20 per cent of the
developed land will be offered to the affected land owners.

14. Comprehensive rehabilitation and resettlement
package for land owners including subsistence allowance,
jobs, house one acre of land in cases of irrigation projects,
transportation allowance and resettlement allowance is
proposed.

15. Comprehensive rehabilitation and resettlement
package for livelihood losers including subsistence allowance,
jobs, house, transportation allowance and resettlement
allowance is proposed.

16. Special provisions for Scheduled Castes and the
Scheduled Tribes have been envisaged by providing additional
benefits of 2.5 acres of land or extent of land lost to each
affected family; one time financial assistance of Rs.50,000;
twenty five per cent additional rehabilitation and resettlement
benefits for the families settled outside the district; free land
for community and social gathering and continuation of
reservation in the resettlement area, etc.

17. Twenty-five infrastructural amenities are proposed to
be provided in the resettlement area including schools and
play grounds, health centres, roads and electric connections,
assured sources of safe drinking water, Panchayat Ghars,

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Anganwadis, places of worship, burial and cremation grounds,
village level post offices, fair price shops and seed-cum-
fertilizers storage facilities.

18. The benefits under the new law would be available in
all the cases of land acquisition under the Land Acquisition
Act, 1894 where award has not been made or possession of
land has not been taken.

19. Land that is not used within ten years in accordance
with the purposes, for which it was acquired, shall be
transferred to the State Government's Land Bank. Upon every
transfer of land without development, twenty per cent of the
appreciated land value shall be shared with the original land
owners.

20. The provisions of the Bills have been made fully
compliant with other laws such as the Panchayats (Extension
to the Scheduled Areas) Act, 1996; the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 and Land Transfer Regulations in Fifth
Scheduled Areas.

21. Stringent and comprehensive penalties both for the
companies and Government in cases of false information, mala
fide and contravention of the provisions of the propose
legislation have been provided.

22. Certain Central Acts dealing with the land
acquisition have been enlisted in the Bill. The provisions of
the Bill are in addition to and not in derogation of these Act.
The provisions of this Act can be applied to these existing
enactments by a notification of the Central Government.

23. The Bill also provides for the basic minimum
requirements that all projects leading to displacement must
address. It contains a saving clause to enable the State
Governments, to continue to provide or put in place greater
benefit levels than those prescribed under the Bill.

24. The Bill would provide for the basic minimum that ll
projects leading to displacement must address. A Social
Impact Assessment (SIA) of proposals leading to displacement
of people through a participatory, informed and transparent
process involving all stake-holders, including the affected
persons will be necessary before these are acted upon. The

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rehabilitation process would augment income levels and
enrich quality of life of the displaced persons, covering
rebuilding socio-cultural relationships, capacity building and
provision of public health and community services. Adequate
safeguards have been proposed for protecting rights of
vulnerable sections of the displaced persons.

25. The Bill seeks to achieve the above objects. The
notes on clauses explain the various provisions contained in
the Bill.

ACT 30 of 2013

The Right to Fair Compensation and Transparency in
Land Acquisition Resettlement Bill having been passed by
both the Houses of Parliament received the assent of the
President on 26th September, 2013. It came on the Statute
Book as THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION, REHABILITATION
AND RESETTLEMENT ACT, 2013 (30 of 2013) (came into
force on 1-1-2014).

Preamble :

An Act to ensure, in consultation with institutions of
local self-government and Gram Sabhas established
under the Constitution, a humane, participative,
informed and transparent process for land acquisition
for industrialisation, development of essential
infrastructural facilities and urbanisation with the least
disturbance to the owners of the land and other affected
families and provide just and fair compensation to the
affected families whose land has been acquired or
proposed to be acquired or are affected by such
acquisition and make adequate provisions for such
affected persons for their rehabilitation and
resettlement and for ensuring that the cumulative
outcome of compulsory acquisition should be that
affected persons become partners in development
leading to an improvement in their post acquisition
social and economic status and for matters connected
therewith or incidental thereto.

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Be it enacted by Parliament in the Sixty-fourth Year of
the Republic of India as follows:--

Section 2 :

(1) The provisions of this Act relating to land acquisition,
compensation, rehabilitation and resettlement, shall apply,
when the appropriate Government acquires land for its own
use, hold and control, including for Public Sector
Undertakings and for public purpose, and shall include the
following purposes, namely:--

(a) for strategic purposes relating to naval,
military, air force, and armed forces of the Union,
including central paramilitary forces or any work
vital to national security or defence of India or
State police, safety of the people; or

(b) for infrastructure projects, which includes the
following, namely:--

(i) all activities or items listed in the
notification of the Government of India in the
Department of Economic Affairs
(Infrastructure Section) number 13/6/2009-
INF, dated the 27th March, 2012, excluding
private hospitals, private educational
institutions and private hotels;

(ii) projects involving agro-processing, supply
of inputs to agriculture, warehousing, cold
storage facilities, marketing infrastructure for
agriculture and allied activities such as dairy,
fisheries, and meat processing, set up or
owned by the appropriate Government or by a
farmers' cooperative or by an institution set
up under a statute;

(iii) project for industrial corridors or mining
activities, national investment and
manufacturing zones, as designated in the
National Manufacturing Policy;

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(iv) project for water harvesting and water
conservation structures, sanitation;

(v) project for Government administered,
Government aided educational and research
schemes or institutions;

(vi) project for sports, heath care, tourism,
transportation or space programme;

(vii) any infrastructure facility as may be
notified in this regard by the Central
Government and after tabling of such
notification in Parliament;

(c) project for project affected families;

(d) project for housing for such income groups, as
may be specified from time to time by the
appropriate Government;

(e) project for planned development or the
improvement of village sites or any site in the
urban areas or provision of land for residential
purposes for the weaker sections in rural and
urban areas;

(f) project for residential purposes to the poor or
landless or to persons residing in areas affected by
natural calamities, or to persons displaced or
affected by reason of the implementation of any
scheme undertaken by the Government, any local
authority or a corporation owned or controlled by
the State.

(2) The provisions of this Act relating to land acquisition,
consent, compensation, rehabilitation and resettlement,
shall also apply, when the appropriate Government
acquires land for the following purposes, namely:--

(a) for public private partnership projects, where
the ownership of the land continues to vest with
the Government, for public purpose as defined in

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sub-section (1);

(b) for private companies for public purpose, as
defined in sub-section (1):

Provided that in the case of acquisition for--

(i) private companies, the prior consent
of at least eighty per cent. of those
affected families, as defined in sub-

clauses (i) and (v) of clause (c) of section
3; and

(ii) public private partnership projects,
the prior consent of at least seventy per
cent. of those affected families, as
defined in sub-clauses (i) and (v) of
clause (c) of section 3,

shall be obtained through a process as may be
prescribed by the appropriate Government:

Provided further that the process of obtaining
the consent shall be carried out along with
the Social Impact Assessment study referred
to in section 4:

Provided also that no land shall be
transferred by way of acquisition, in the
Scheduled Areas in contravention of any law
(including any order or judgment of a court
which has become final) relating to land
transfer, prevailing in such Scheduled Areas.

(3) The provisions relating to rehabilitation and
resettlement under this Act shall apply in the cases
where,--

(a) a private company purchases land, equal to or
more than such limits in rural areas or urban areas,
as may be prescribed by the appropriate
Government, through private negotiations with the
owner of the land in accordance with the provisions

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of section 46;

(b) a private company requests the appropriate
Government for acquisition of a part of an area so
prescribed for a public purpose:

Provided that where a private company
requests the appropriate Government for
partial acquisition of land for public purpose,
then, the rehabilitation and resettlement
entitlements under the Second Schedule shall
be applicable for the entire area which
includes the land purchased by the private
company and acquired by the Government for
the project as a whole.

SECTION 3

(c) "affected family" includes--

(i) a family whose land or other immovable
property has been acquired;

(ii) a family which does not own any land but
a member or members of such family may be
agricultural labourers, tenants including any
form of tenancy or holding of usufruct right,
share-croppers or artisans or who may be
working in the affected area for three years
prior to the acquisition of the land, whose
primary source of livelihood stand affected by
the acquisition of land;

(iii) the Scheduled Tribes and other
traditional forest dwellers who have lost any
of their forest rights recognised under the
Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest
Rights) Act, 2006 (2 of 2007) due to
acquisition of land;

(iv) family whose primary source of livelihood

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for three years prior to the acquisition of the
land is dependent on forests or water bodies
and includes gatherers of forest produce,
hunters, fisher folk and boatmen and such
livelihood is affected due to acquisition of
land;

(v) a member of the family who has been
assigned land by the State Government or the
Central Government under any of its schemes
and such land is under acquisition;

(vi) a family residing on any land in the urban
areas for preceding three years or more prior
to the acquisition of the land or whose
primary source of livelihood for three years
prior to the acquisition of the land is affected
by the acquisition of such land;

(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:

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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;

(i) "cost of acquisition" includes--

(i) amount of compensation which
includes solatium, any enhanced
compensation ordered by the Land
Acquisition and Rehabilitation and
Resettlement Authority or the Court and
interest payable thereon and any other
amount determined as payable to the
affected families by such Authority or
Court;

(ii) demurrage to be paid for damages
caused to the land and standing crops in
the process of acquisition;

(iii) cost of acquisition of land and
building for settlement of displaced or
adversely affected families;

(iv) cost of development of infrastructure
and amenities at the resettlement areas;

                       (v)    cost  of    rehabilitation and
resettlement as determined in

accordance with the provisions of this
Act;

(vi) administrative cost,--

(A) for acquisition of land,
including both in the project site
and out of project area lands, not
exceeding such percentage of the
cost of compensation as may be
specified by the appropriate

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Government;

(B) for rehabilitation and
resettlement of the owners of the
land and other affected families
whose land has been acquired or
proposed to be acquired or other
families affected by such
acquisition;

(vii) cost of undertaking 'Social Impact
Assessment study';

(k) "displaced family" means any family, who on
account of acquisition of land has to be relocated
and resettled from the affected area to the
resettlement area;

(o) "infrastructure project" shall include any one or
more of the items specified in clause (b) of sub-
section (1) of section 2;

(u) "market value" means the value of land
determined in accordance with section 26;

(za) "public purpose" means the activities specified
under sub-section (1) of section 2;

(zb) "Requiring Body" means a company, a body
corporate, an institution, or any other organisation
or person for whom land is to be acquired by the
appropriate Government, and includes the
appropriate Government, if the acquisition of land
is for such Government either for its own use or for
subsequent transfer of such land is for public
purpose to a company, body corporate, an
institution, or any other organisation, as the case
may be, under lease, licence or through any other
mode of transfer of land;

(zc) "Resettlement Area" means an area where the
affected families who have been displaced as a
result of land acquisition are resettled by the
appropriate Government;

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CHAPTER II

SECTION 5

Whenever a Social Impact Assessment is required
to be prepared under section 4, the appropriate
Government shall ensure that a public hearing is
held at the affected area, after giving adequate
publicity about the date, time and venue for the
public hearing, to ascertain the views of the
affected families to be recorded and included in the
Social Impact Assessment Report.

SECTION 6 - Publication of Social Impact Assessment
study

(1) The appropriate Government shall ensure that
the Social Impact Assessment study report and the
Social Impact Management Plan referred to in sub-
section (6) of section 4 are prepared and made
available in the local language to the Panchayat,
Municipality or Municipal Corporation, as the case
may be, and the offices of the District Collector, the
Sub-Divisional Magistrate and the Tehsil, and shall
be published in the affected areas, in such manner
as may be prescribed, and uploaded on the website
of the appropriate Government.

(2) Wherever Environment Impact Assessment is
carried out, a copy of the Social Impact Assessment
report shall be made available to the Impact
Assessment Agency authorised by the Central
Government to carry out environmental impact
assessment:

Provided that, in respect of irrigation projects
where the process of Environment Impact
Assessment is required under the provisions
of any other law for the time being in force,
the provisions of this Act relating to Social
Impact Assessment shall not apply.

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SECTION 7 - Appraisal of Social Impact Assessment
report by an Expert Group

(1) The appropriate Government shall ensure that
the Social Impact Assessment report is evaluated
by an independent multi-disciplinary Expert Group,
as may be constituted by it.

(2) The Expert Group constituted under sub-
section (1) shall include the following,
namely:--

(a) two non-official social scientists:

(b) two representatives of Panchayat.
Gram Sabha, Municipality or Municipal
Corporation, as the case may be;

(c) two experts on rehabilitation; and

(d) a technical expert in the subject
relating to the project.

(3) The appropriate Government may
nominate a person from amongst the
members of the Expert Group as the
Chairperson of the Group.

(4) If the Expert Group constituted under sub-

section (1), is of the opinion that,--

(a) the project does not serve any public
purpose; or

(b) the social costs and adverse social
impacts of the project outweigh the
potential benefits.

it shall make a recommendation within two
months from the date of its constitution to the
effect that the project shall be abandoned
forthwith and no further steps to acquire the

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land will be initiated in respect of the same:

Provided that the grounds for such
recommendation shall be recorded in
writing by the Expert Group giving the
details and reasons for such decision:

Provided further that where the
appropriate Government, inspite of such
recommendations, proceeds with the
acquisition, then, it shall ensure that its
reasons for doing so are recorded in
writing.

(5) If the Expert Group constituted under sub-
section (1), is of the opinion that,--

(a) the project will serve any public
purpose; and

(b) the potential benefits outweigh the
social costs and adverse social impacts,

it shall make specific recommendations within
two months from the date of its constitution
whether the extent of land proposed to be
acquired is the absolute bare-minimum extent
needed for the project and whether there are
no other less displacing options available:

Provided that the grounds for such
recommendation shall be recorded in
writing by the Expert Group giving the
details and reasons for such decision.

(6) The recommendations of the Expert Group
referred to in sub-sections (4) and (5) shall be
made available in the local language to the
Panchayat, Municipality or Municipal
Corporation, as the case may be, and the
offices of the District Collector, the Sub-

Divisional Magistrate and the Tehsil, and shall
be published in the affected areas, in such

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manner as may be prescribed and uploaded
on the website of the appropriate
Government.

SECTION 8 - Examination of proposals for land
acquisition and Social Impact Assessment report by
appropriate Government

(1) The appropriate Government shall ensure that--

(a) there is a legitimate and bona fide
public purpose for the proposed
acquisition which necessitates the
acquisition of the land identified;

(b) the potential benefits and the public
purpose referred to in clause (a) shall
outweigh the social costs and adverse
social impact as determined by the
Social Impact Assessment that has been
carried out;

(c) only the minimum area of land
required for the project is proposed to
be acquired;

(d) there is no unutilised land which has
been previously acquired in the area;

(e) the land, if any, acquired earlier and
remained unutilised, is used for such
public purpose and make
recommendations in respect thereof.

(2) The appropriate Government shall
examine the report of the Collector, if any,
and the report of the Expert Group on the
Social Impact Assessment study and after
considering all the reports, recommend such
area for acquisition which would ensure
minimum displacement of people, minimum

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disturbance to the infrastructure, ecology and
minimum adverse impact on the individuals
affected.

(3) The decision of the appropriate
Government shall be made available in the
local language to the Panchayat, Municipality
or Municipal Corporation, as the case may be,
and the offices of the District Collector, the
Sub-Divisional Magistrate and the Tehsil, and
shall be published in the affected areas, in
such manner as may be prescribed, and
uploaded on the website of the appropriate
Government:

Provided that where land is sought to be
acquired for the purposes as specified in
sub-section (2) of section 2, the
appropriate Government shall also
ascertain as to whether the prior
consent of the affected families as
required under the proviso to sub-
section (2) of section 2, has been
obtained in the manner as may be
prescribed.

SECTION 9 - Exemption from Social Impact Assessment

Where land is proposed to be acquired invoking the
urgency provisions under section 40, the
appropriate Government may exempt undertaking
of the Social Impact Assessment study.

CHAPTER III

SECTION 10 - Special provision to safeguard food security

(1) Save as otherwise provided in sub-section (2),
no irrigated multi-cropped land shall be acquired
under this Act.

(2) Such land may be acquired subject to the
condition that it is being done under exceptional

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circumstances, as a demonstrable last resort,
where the acquisition of the land referred to in sub-
section (1) shall, in aggregate for all projects in a
district or State, in no case exceed such limits as
may be notified by the appropriate Government
considering the relevant State specific factors and
circumstances.

(3) Whenever multi-crop irrigated land is acquired
under sub-section (2), an equivalent area of
culturable wasteland shall be developed for
agricultural purposes or an amount equivalent to
the value of the land acquired shall be deposited
with the appropriate Government for investment in
agriculture for enhancing food-security.

(4) In a case not falling under sub-sect ion (1), the
acquisition of the agricultural land in aggregate for
all projects in a district or State, shall in no case
exceed such limits of the total net sown area of that
district or State, as may be notified by the
appropriate Government:

Provided that the provisions of this section
shall not apply in the case of projects that are
linear in nature such as those relating to
railways, highways, major district roads,
irrigation canals, power lines and the like.

SECTION 11 - Publication of preliminary notification
and power of officers thereupon
(1) Whenever, it appears to the appropriate
Government that land in any area is required or
likely to be required for any public purpose, a
notification (hereinafter referred to as preliminary
notification) to that effect along with details of the
land to be acquired in rural and urban areas shall
be published in the following manner, namely:--

(a) in the Official Gazette;

(b) in two daily newspapers circulating
in the locality of such area of which one
shall be in the regional language;

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(c) in the local language in the
Panchayat, Municipality or Municipal
Corporation, as the case may be and in
the offices of the District Collector, the
Sub-divisional Magistrate and the Tehsil;

(d) uploaded on the website of the
appropriate Government;

(e) in the affected areas, in such manner
as may be prescribed.

(2) Immediately after issuance of the
notification under sub-section (1), the
concerned Gram Sabha or Sabhas at the
village level, municipalities in case of
municipal areas and the Autonomous Councils
in case of the areas referred to in the Sixth
Schedule to the Constitution, shall be
informed of the contents of the notification
issued under the said sub-section in all cases
of land acquisition at a meeting called
especially for this purpose.

(3) The notification issued under sub-section
(1) shall also contain a statement on the
nature of the public purpose involved, reasons
necessitating the displacement of affected
persons, summary of the Social Impact
Assessment Report and particulars of the
Administrator appointed for the purposes of
rehabilitation and resettlement under section
43.

(4) No person shall make any transaction or
cause any transaction of land specified in the
preliminary notification or create any
encumbrances on such land from the date of
publication of such notification till such time
as the proceedings under this Chapter are
completed:

Provided that the Collector may, on the
application made by the owner of the

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land so notified, exempt in special
circumstances to be recorded in writing,
such owner from the operation of this
sub-section:

Provided further that any loss or injury
suffered by any person due to his wilful
violation of this provision shall not be
made up by the Collector.

(5) After issuance of notice under sub-section
(1), the Collector shall, before the issue of a
declaration under section 19, undertake and
complete the exercise of updating of land
records as prescribed within a period of two
months.

SECTION 15 - HEARING OF OBJECTIONS

(1) Any person interested in any land which has
been notified under sub-section (1) of section 11, as
being required or likely to be required for a public
purpose, may within sixty days from the date of the
publication of the preliminary notification, object
to--

(a) the area and suitability of land proposed to
be acquired;

(b) justification offered for public purpose;

                     (c) the findings             of   the     Social         Impact
Assessment report.

(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 authorised by him
in this behalf or by an Advocate 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 sub-section (1) of section

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11, 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 along with a separate
report giving therein the approximate cost of land
acquisition, particulars as to the number of affected
families likely to be resettled, for the decision of
that Government.

(3) The decision of the appropriate Government on
the objections made under sub-section (2) shall be
final.

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

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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 I, 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--

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(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:

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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 31 - REHABILITATION AND RESETTLEMENT
AWARD FOR AFFECTED FAMILIES BY COLLECTOR

(1) The Collector shall pass Rehabilitation and
Resettlement Awards for each affected family in
terms of the entitlements provided in the Second
Schedule.

(2) The Rehabilitation and Resettlement Award
shall include all of the following, namely:--

(a) rehabilitation and resettlement amount
payable to the family;

(b) bank account number of the person to
which the rehabilitation and resettlement
award amount is to be transferred;

(c) particulars of house site and house to be
allotted, in case of displaced families;

(d) particulars of land allotted to the displaced
families;

(e) particulars of one time subsistence
allowance and transportation allowance in
case of displaced families;

(f) particulars of payment for cattle shed and
petty shops;

(g) particulars of one-time amount to artisans

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and small traders;

(h) details of mandatory employment to be
provided to the members of the affected
families;

(i) particulars of any fishing rights that may
be involved;

(j) particulars of annuity and other
entitlements to be provided;

(k) particulars of special provisions for the
Scheduled Castes and the Scheduled Tribes to
be provided:

Provided that in case any of the matters
specified under clauses (a) to (k) are not
applicable to any affected family the
same shall be indicated as ''not
applicable":

Provided further that the appropriate
Government may, by notification
increase the rate of rehabilitation and
resettlement amount payable to the
affected families, taking into account the
rise in the price index.

SECTION 40 - SPECIAL POWERS IN CASE OF URGENCY
TO ACQUIRE LAND IN CERTAIN CASES

(1) In cases of urgency, whenever the appropriate
Government so directs, the Collector, though no
such award has been made, may, on the expiration
of thirty days from the publication of the notice
mentioned in section 21, take possession of any
land needed for a public purpose and such land
shall thereupon vest absolutely in the Government,
free from all encumbrances.

(2) The powers of the appropriate Government

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under sub-section (1) shall be restricted to the
minimum area required for the defence of India or
national security or for any emergencies arising out
of natural calamities or any other emergency with
the approval of Parliament:

Provided that the Collector shall not take
possession of any building or part of a
building under this sub-section without giving
to the occupier thereof at least forty-eight
hours notice of his intention to do so, or such
longer notice as may be reasonably sufficient
to enable such occupier to remove his
movable property from such building without
unnecessary inconvenience.

(3) Before taking possession of any land under sub-
section (1) or sub-section (2). the Collector shall
tender payment of eighty per cent. of the
compensation for such land as estimated by him to
the person interested entitled thereto.

(4) In the case of any land to which, in the opinion
of the appropriate Government, the provisions of
sub-section (1), sub-section (2) or sub-section (3)
are applicable, the appropriate Government may
direct that any or all of the provisions of Chapter II
to Chapter VI shall not apply, and, if it does so
direct, a declaration may be made under section 19
in respect of the land at any time after the date of
the publication of the preliminary notification
under sub-section (1) of section 11.

(5) An additional compensation of seventy-five per
cent. of the total compensation as determined
under section 27. shall be paid by the Collector in
respect of land and property for acquisition of
which proceedings have been initiated under sub-
section (1) of this section:

Provided that no additional compensation will
be required to be paid in case the project is
one that affects the sovereignty and integrity
of India, the security and strategic interests of

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the State or relations with foreign States.

SECTION 41 - SPECIAL PROVISIONS FOR SCHEDULED
CASTES AND SCHEDULES TRIBES

(1) As far as possible, no acquisition of land shall be
made in the Scheduled Areas.

(2) Where such acquisition does take place it shall
be done only as a demonstrable last resort.

(3) In case of acquisition or alienation of any land
in the Scheduled Areas, the prior consent of the
concerned Gram Sabha or the Panchayats or the
autonomous District Councils, at the appropriate
level in Scheduled Areas under the Fifth Schedule
to the Constitution, as the case may be, shall be
obtained, in all cases of land acquisition in such
areas, including acquisition in case of urgency,
before issue of a notification under this Act, or any
other Central Act or a State Act for the time being
in force:

Provided that the consent of the Panchayats
or the Autonomous Districts Councils shall be
obtained in cases where the Gram Sabha does
not exist or has not been constituted.

(4) In case of a project involving land acquisition on
behalf of a Requiring Body which involves
involuntary displacement of the Scheduled Castes
or the Scheduled Tribes families. a Development
Plan shall be prepared, in such form as may be
prescribed, laying down the details of procedure
for settling land rights due, but not settled and
restoring titles of the Scheduled Tribes as well as
the Scheduled Castes on the alienated land by
undertaking a special drive together with land
acquisition.

(5) The Development Plan shall also contain a
programme for development of alternate fuel,

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fodder and non-timber forest produce resources on
non-forest lands within a period of five years,
sufficient to meet the requirements of tribal
communities as well as the Scheduled Castes.

(6) In case of land being acquired from members of
the Scheduled Castes or the Scheduled Tribes, at
least one-third of the compensation amount due
shall be paid to the affected families initially as first
instalment and the rest shall be paid after taking
over of the possession of the land.

(7) The affected families of the Scheduled Tribes
shall be resettled preferably in the same Scheduled
Area in a compact block so that they can retain
their ethnic, linguistic and cultural identity.

(8) The resettlement areas predominantly inhabited
by the Scheduled Castes and the Scheduled Tribes
shall get land, to such extent as may be decided by
the appropriate Government free of cost for
community and social gatherings.

(9) Any alienation of tribal lands or lands belonging
to members of the Scheduled Castes in disregard of
the laws and regulations for the time being in force
shall be treated as null and void, and in the case of
acquisition of such lands, the rehabilitation and
resettlement benefits shall be made available to the
original tribal land owners or land owners
belonging to the Scheduled Castes.

(10) The affected Scheduled Tribes other
traditional forest dwellers and the Scheduled
Castes having fishing rights in a river or pond or
dam in the affected area shall be given fishing
rights in the reservoir area of the irrigation or
hydel projects.

(11) Where the affected families belonging to the
Scheduled Castes and the Scheduled Tribes are
relocated outside of the district, then, they shall be
paid an additional twenty-five per cent.
rehabilitation and resettlement benefits to which

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they are entitled in monetary terms along with a
one-time entitlement of fifty thousand rupees.
SECTION 105 - PROVISIONS OF THIS ACT NOT TO
APPLY IN CERTAIN CASES OR TO APPLY WITH
CERTAIN MODIFICATIONS

(1) Subject to sub-section (3), the provisions of this
Act shall not apply to the enactments relating to
land acquisition specified in the Fourth Schedule.

(2) Subject to sub-section (2) of section 106, the
Central Government may, by notification, omit or
add to any of the enactments specified in the
Fourth Schedule.

(3) The Central Government shall, by notification,
within one year from the date of commencement of
this Act, direct that any of the provisions of this Act
relating to the determination of compensation in
accordance with the First Schedule and
rehabilitation and resettlement specified in the
Second and Third Schedules, being beneficial to
the affected families, shall apply to the cases of
land acquisition under the enactments specified in
the Fourth Schedule or shall apply with such
exceptions or modifications that do not reduce the
compensation or dilute the provisions of this Act
relating to compensation or rehabilitation and
resettlement as may be specified in the notification,
as the case may be.

(4) A copy of every notification proposed to be
issued under sub-section (3), shall be laid in draft
before each House of Parliament, while it is in
session, for a total period of thirty days which may
be comprised in one session or in two or more
successive sessions, and if, before the expiry of the
session immediately following the session or the
successive sessions aforesaid, both Houses agree in
disapproving the issue of the notification or both
Houses agree in making any modification in the
notification, the notification shall not be issued or,

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as the case may be, shall be issued only in such
modified form as may be agreed upon by both the
Houses of Parliament.

SECTION 107 - POWER OF STATE LEGISLATURES TO
ENACT ANY LAW MORE BENEFICIAL TO AFFECTED
FAMILIES.

Nothing in this Act shall prevent any State from
enacting any law to enhance or add to the
entitlements enumerated under this Act which
confers higher compensation than payable under
this Act or make provisions for rehabilitation and
resettlement which is more beneficial than
provided under this Act.

SECTION 113 - POWER TO REMOVE DIFFICULTIES
(1) If any difficulty arises in giving effect to the
provisions of this Part, the Central Government
may, by order, make such provisions or give such
directions not inconsistent with the provisions of
this Act as may appear to it to be necessary or
expedient for the removal of the difficulty:

Provided that no such power shall be
exercised after the expiry of a period of two
years from the commencement of this Act.

(2) Every order made under this section shall be
laid, as soon as may be after it is made, before each
House of Parliament.

__

THE SECOND SCHEDULE

[See sections 31(1), 38(1) and 105(3)]

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ELEMENTS OK REHABILITATION AND
RESETTLEMENT ENTITLEMENTS FOR ALL THE
AFFECTED FAMILIES (BOTH LAND OWNERS AND THE
FAMILIES WHOSE LIVELIHOOD IS PRIMARILY
DEPENDENT ON LAND ACQUIRED) IN ADDITION TO
THOSE PROVIDED IN THE FIRST SCHEDULE.

_
Serial Elements of Rehabilitation Entitlement/provision Whether
provided or not
Number and Resettlement Entitlements (if
provided, details to be

given)

_
(1) (2) (3)
(4)

_

1. Provision of housing units (1) If a house is lost in rural areas
in case of displacement a constructed house shall be
provided
as per the Indira Awas Yojana
specifications.

If a house is lost in urban areas, a
constructed
house shall be provided, which will be not
less than 50 sq.mts. in plinth area.

(2) The benefits listed above shall
also be extended to any affected
family which is without homestead
land and which has been residing in
the area continuously for a period of
not less than three years preceding
the date of notification of the
affected area and which has been
involuntarily displaced from such
area:

Provided that any such family in

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urban areas which opts not to take
the house offered, shall get a one-

time financial assistance for house
construction, which shall not be less
than one lakh fifty thousand rupees:

Provided further that if any affected
family in rural areas so prefers, the
equivalent cost of the house may be
offered in lieu of the constructed
house:

Provided also that no family
affected by acquisition shall be
given more than one house under
the provisions of this Act.

Explanation.--The houses in urban
areas may, if necessary, be provided
in multi-storied building complexes.

2. Land for Land In the case of irrigation
project, as far as possible and in
lieu of compensation to be paid for
land acquired, each affected family
owning agricultural land in the
affected area and whose land has
been acquired or lost, or who has, as
a consequence of the acquisition or
loss of land, been reduced to the
status of a marginal farmer or
landless, shall be allotted, in the
name of each person included in the
records of rights with regard to the
affected family, a minimum of one
acre of land in the command area of
the project for which the land is
acquired:

Provided that in every project those
persons losing land and belonging
to the Scheduled Castes or the
Scheduled Tribes will be provided
land equivalent to land acquired or
two and a one-half acres, whichever
is lower.

THE FOURTH SCHEDULE

(See section 105)

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LIST OF ENACTMENTS REGULATING LAND
ACQUISITION AND REHABILITATION AND
RESETTLEMENT

1. The Ancient Monuments and Archaeological Sites and
Remains Act, 1958 (24 of 1958).

2. The Atomic Energy Act, 1962 (33 of 1962).

3. The Damodar Valley Corporation Act, 1948 (14 of
1948).

4. The Indian Tramways Act, 1886 (11 of 1886).

5. The Land Acquisition (Mines) Act, 1885 (18 of 1885).

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

7. The National Highways Act, 1956 (48 of 1956).

8. The Petroleum and Minerals Pipelines (Acquisition of
Right of User in Land) Act, 1962 (50 of 1962).

9. The Requisitioning and Acquisition of Immovable
Property Act, 1952 (30 of 1952).

10. The Resettlement of Displaced Persons (Land
Acquisition) Act, 1948 (60 of 1948).

11. The Coal Bearing Areas Acquisition and
Development Act, 1957 (20 of 1957).

12. The Electricity Act, 2003 (36 of 2003).

13. The Railways Act, 1989 (24 of 1989).

14. Similarly, the Right to Fair Compensation and

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Transparency in Land Acquisition, Rehabilitation and
Resettlement (Removal of Difficulties) Order, 2015 by which
the provisions of the Act of 2013 have been extended to apply
is reproduced hereinbelow.

     THE        RIGHT           TO     FAIR            COMPENSATION                   AND
TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT

(REMOVAL OF DIFFICULTIES) ORDER, 2015

Whereas, the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (30 of 2013) (hereinafter
referred to as the RFCTLARR Act) came into effect from
1st January, 2014;

And whereas, sub-section (3) of Section 105 of the
RFCTLARR Act provided for issuing of notification to
make the provisions of the Act relating to the
determination of the compensation, rehabilitation and
resettlement applicable to cases of land acquisition
under the enactments specified in the Fourth Schedule
to the RFCTLARR Act;

And whereas, the notification envisaged under sub-
section (3) of Section 105 of the RFCTLARR Act was not
issued, and the RFCTLARR (Amendment) Ordinance,
2014 (9 of 2014) was promulgated on 31st December,
2014, thereby, inter alia, amending section 105 of the
RFCTLARR Act to extend the provisions of the Act

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relating to the determination of the compensation and
rehabilitation and resettlement to cases of land
acquisition under the enactments specified in the Fourth
Schedule to the RFCTLARR Act;

And whereas, the RFCTLARR (Amendment) Ordinance,
2015 (4 of 2015) was promulgated on 3rd April, 2015 to
give continuity to the provisions of the RFCTLARR
(Amendment) Ordinance 2015 (4 of 2015);

And whereas, the replacement Bill relating to the
RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015)
was referred to the Joint Committee of the Houses for
examination and report and the same is pending with the
Joint Committee;

As whereas, as per the provisions of article 123 of the
Constitution, the RFCTLARR (Amendment) Second
Ordinance, 2015 (5 of 2015) shall lapse on the 31 st day of
August, 2015 and thereby placing the land owners at the
disadvantageous position, resulting in denial of benefits
of enhanced compensation and rehabilitation and
resettlement to the cases of land acquisition under the
13 Acts specified in the Fourth Scheduled to the
RFCTLARR Act as extended to the land owners under
the said Ordinance;

And whereas, the Central Government considers it
necessary to extend the benefits available to the land
owners under the RFCTLARR Act to similarly placed
land owners whose lands are acquired under the 13

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enactments specified in the Fourth Schedule; and
accordingly the Central Government keeping in view the
aforesaid difficulties has decided to extend the beneficial
advantage to the land owners and uniformly apply the
beneficial provisions of the RFCTLARR Act, relating to
the determination of compensation and rehabilitation
and resettlement as were made applicable to cases of
land acquisition under the said enactments in the
interest of the land owners;

Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 113 of the Right to Fair
Comparative and Transparency in Labd Acquisition,
Rehabilitation and Resettlement Act, 2013 (30 of 2013),
the Central Government hereby makes the following
Order to remove the aforesaid difficulties, namely:-

1. (1) This Order may be called the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Removal of Difficulties)
Order, 2015.

(2) It shall come into force with effect from the 1st day of
September, 2015.

2. The provisions of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013, relating to the
determination of compensation in accordance with the
First Schedule, rehabilitation and resettlement in
accordance with the Second Schedule and

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infrastructure amenities in accordance with the Third
Schedule shall apply to all cases of land acquisition
under the enactments specified in the Fourth Schedule
to the said Act.

15. It shall also not be out of place at this juncture to
reproduce the relevant provisions of the Constitution of India
which we are required to consider while deciding the issue
involved in these petitions.

Article 73

73. Extent of executive power of the Union

(1) Subject to the provisions of this Constitution, the
executive power of the Union shall extend

(a) to the matters with respect to which Parliament has
power to make laws; and

(b) to the exercise of such rights, authority and
jurisdiction as are exercisable by the government of
India by virtue of any treaty on agreement: Provided that
the executive power referred to in sub clause (a) shall
not, save as expressly provided in this constitution or in
any law made by Parliament, extend in any State to
matters with respect in which the Legislature of the
State has also power to make laws
(2) Until otherwise provided by Parliament, a State and
any officer or authority of a State may, notwithstanding
anything in this article, continue to exercise in matters
with respect to which Parliament has power to make
laws for that State such executive power or functions as
the State or officer or authority thereof could exercise
immediately before the commencement of this
Constitution Council of Ministers

Article 200

200. Assent to Bills

When a Bill has been passed by the Legislative Assembly
of a State or, in the case of a State having a Legislative

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Council, has been passed by both Houses of the
Legislature of the State, it shall be presented to the
Governor and the Governor shall declare either that he
assents to the Bill or that he withholds assent therefrom
or that he reserves the Bill for the consideration of the
President: Provided that the Governor may, as soon as
possible after the presentation to him of the Bill for
assent, return the Bill if it is not a Money Bill together
with a message requesting that the House or Houses will
reconsider the Bill or any specified provisions thereof
and, in particular, will consider the desirability of
introducing any such amendments as he may
recommend in his message and, when a Bill is so
returned, the House or Houses shall reconsider the Bill
accordingly, and if the Bill is passed again by the House
or Houses with or without amendment and presented to
the Governor for assent, the Governor shall not withhold
assent therefrom: Provided further that the Governor
shall not assent to, but shall reserve for the
consideration of the President, any Bill which in the
opinion of the Governor would, if it became law, so
derogate from the powers of the High Court as to
endanger the position which that Court is by this
Constitution designed to fill

Article 201 - Bill reserved for consideration

When a Bill is reserved by a Governor for the
consideration of the President, the President shall
declare either that he assents to the Bill or that he
withholds assent therefrom: Provided that, where the
Bill is not a Money Bill, the President may direct the
Governor to return the Bill to the House or, as the case
may be, the Houses of the Legislature of the State
together with such a message as it mentioned in the first
proviso to Article 200 and, when a Bill is so returned, the
House or Houses shall reconsider it accordingly within a
period of six months from the date of receipt of such
message and, if it is again passed by the House or
Houses with or without amendment, it shall be
presented again to the President for his consideration
Procedure in Financial Matters

Article 254 - Inconsistency between laws made by

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Parliament and laws made by the Legislatures of
States

(1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of
the matters enumerated in the Concurrent List, then,
subject to the provisions of clause ( 2 ), the law made by
Parliament, whether passed before or after the law made
by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the
repugnancy, be void

(2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the
concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and
has received his assent, prevail in that State: Provided
that nothing in this clause shall prevent Parliament from
enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State

258. Power of the Union to confer powers, etc, on
States in certain cases

(1) Notwithstanding anything in this Constitution, the
President may, with the consent of the Government of a
State, entrust either conditionally or unconditionally to
that Government or to its officers functions in relation to
any matter to which the executive power of the Union
extends
(2) A law made by Parliament which applies in any State
may, notwithstanding that it relates to a matter with
respect to which the Legislature of the State has no
power to make laws, confer powers and impose duties,
or authorise the conferring of powers and the imposition
of duties, upon the State or officers and authorities
thereof
(3) Where by virtue of this article powers and duties

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have been conferred or imposed upon a State or officers
or authorities thereof, there shall be paid by the
Government of India to the State such sum as may be
agreed, or, in default of agreement, as may be
determined by an arbitrator appointed by the Chief
Justice of India, in respect of any extra costs of
administration incurred by the State in connection with
the exercise of those powers and duties

16. The relevant notifications which are relied upon and
discussed by learned advocates appearing for the respective
parties are also reproduced hereinbelow for the sake of
convenience and easy reference.

Notification dated 06.02.2018

Notification
Revenue Department
Government of Gujarat
Sachivalaya, Gandhinagar

(The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013) (30 of
2013)

District :-Surat
No:-AM-2018-100-M-LSU-1218-59-GH Dated -
6.2.18

Whereas it appears to the Government of Gujarat, that the
land specified in the SCHEDULE annexed hereto, is likely to
be needed for public purpose viz. for the purpose of
construction of the infrastructure project of "Mumbai -
Ahmedabad High Speed Railway Project"

(1) Now therefore in exercise of the powers conferred by
sub-section (1) of section 2 of "The Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (30 of 2013)
(herein after referred to as "The Act" ) and the Rules made
there-under, it is hereby notified that the Government of

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Gujarat intends to acquire the said land for the public
purpose of the specified above.

2. Now whereas a proposal is made for acquisition of the
above mentioned scheduled land for the purposed project of
"Mumbai-Ahmedabad High Speed Railway Project" the bare
minimum area of land to be acquired, as per SCHEDULE
for the Project is H.A. 7- 44-12 Sq.mtr. and is situated
within the boundary limit of Village : Kathor Taluka :
Kamrej District :- Surat

3. Now whereas it appears to the State Government, that it
is expedient to exempt in public interest to the area of H.A.
7-44-12 sq.mtr. of land to be acquired for the above stated
infrastructure project, from the application of the provision of
chapter ll and lll of the Act.

4. Now therefore in exercise of the power conferred by
section 10(A) of The Act I inserted by section 3 of The
RFCTLARR ( Gujarat Amendment) Act-2016) ( Gujarat Act
No. 12 of 2016 ) The Government of Gujarat, hereby exempt
in public interest the area of H. A. 7-44-12 sq.mtr land
comprised in below mentioned SCHEDULE to be acquired for
the "Mumbai-Ahmedabad High Speed Railway Project" from
the application of the provision of chapter ll and lll of The
Act

Notification dated 09.04.2018

Notification
Revenue Department,
Sachivalaya, Candhinagar.

Date:- 9 APR 2018

(The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013) (30 of
2013)

No. AM-2018-276-M-LSU-1218-59-GH

In exercise of the powers conferred by sub-section (l) of
section ll of the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation Resettlement Act, 20l3

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(No. 30 of 2013)(hereinafter referred to as "the Act"), the
Government of Gujarat hereby declares that the land / lands
mentioned in the Schedule annexed hereto is / are required
for the purpose of acquisition for the public purpose of
Mumbai-Ahmedabad High Speed Rail Project;
(2) It is notified that, -

(l) The area ofland / lands required for the above
project 7-44-12 hector are.sq.mtrs. and is at Kathor
Village of Kamrej Taluka of Surat District;
(2) The public purpose involved in the above project is
construction of the infrastructure project of "Mumbai-
Ahemedabad High Speed Rail Project"
(3) The reasons necessitating the displacement of the
affected persons are -

Due to acquisition of the Land, specified in the
SCHEDULE for public purpose of construction of the
infrastructure project of "Mumbai- Ahemedabad High
Speed Rail Project"

(4) Under Section l0A of the Cujarat Act of 12 of 2016,
exemption is given under Section l0A of the Act vide
Revenue department, Government Of Gujarat
Notification No: - AM -2018-100-M-LSU-1218-59-GH.
Dated :- 06/02/2018 it is not required for the
summary of the Social Impact Assessment Report.
(5) The particulars of the Administrator appointment
under section 43 of the Act are as under- Special Land
Acquisition Officer Branch no -4, Surat.

(3) All the persons interested in these lands are hereby
notified not to obstruct and disturb any Surveyor or other
staff to enter upon and survey the land. Any transaction in
respect of whole or part of these lands in whatsoever manner
including by sale, lease, mortgage, change of name,
exchange entered into after the date of this Notification
made without permission ofthe Collector shall not be taken
into consideration by the officer assessing the compensation
under section 27 of the Act for a particular portion of the land
as may be finally acquired.

(4) The Government of Gujarat, if satisfied about acquisition
of the land for aforesaid public purpose, may publish final
declaration under section 19 of the Act in this regard in the
manner and timeframe so prescribed under the Act. In case
the acquisition is dropped partially or entirely, such facts
shall be notified in a proper manner as provided under the
Act.

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(5) In exercise of the powers under clause (g) of section 3 of
the Act read with Revenue Department's Government Order
No: NMK:102017-1238-D-1 Dated: 25/04/2017 the State
Government is pleased to designate Special Land Acquisition
Officer Branch no -4, Surat to function and discharge the
duties as Collector under the provisions of the Act in respect
of these lands.

Second Ordinance 2015

MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 30th May,
2015/Jyaistha 9, 1937 (Saka)

THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND
ACQUISITION, REHABILITATION AND RESETTLEMENT
(AMENDMENT) SECOND ORDINANCE, 2015

NO. 5 OF 2015

Promulgated by the President in the Sixty-sixth Year of the
Republic of India.

An Ordinance further to amend the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013.

WHEREAS the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (Amendment)
Ordinance, 2014 to amend the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (RFCTLARR Act, 2013) was promulgated by the President on the
31st day of December, 2014;

AND WHEREAS , the RFCTLARR (Amendment) Bill, 2015 was
introduced on the 24th February, 2015 in the House of the People to
replace the said Ordinance and the said Bill was passed alongwith
amendments on the 10th March, 2015 in the House of the People, but the
same could not be passed by the Council of States and is pending in that
House;

AND WHEREAS , the RFCTLARR (Amendment) Ordinance, 2015
incorporating the amendments made by the House of the People was
promulgated by the President on 3rd April, 2015;

AND WHEREAS , the RFCTLARR (Amendment) Second Bill, 2015
was introduced in the House of the People on 11th May, 2015;

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AND WHEREAS , the House of the People referred the RFCTLARR
(Amendment) Second Bill, 2015 to the Joint Committee of the Houses;

AND WHEREAS , it is considered necessary to give continued
effect to the provisions of the RFCTLARR (Amendment) Ordinance, 2015;

AND WHEREAS, Parliament is not in session and the President is
satisfied that circumstances exist which render it necessary for him to
take immediate action;

Now, Therefore, in exercise of the powers conferred by clause (1)
of article 123 of the Constitution, the President is pleased to promulgate
the following Ordinance:--

1. (1 ) This Ordinance may be called the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Amendment) Second Ordinance, 2015.

(2 ) It shall be deemed to have come into force on the 31st day of
December, 2014.

2. In the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter
referred to as the principal Act), for the words "private company"
wherever they occur, the words "private entity" shall be substituted.

3. In the principal Act, in sub-section (2 ) of section 2, after the
second proviso , the following proviso shall be inserted, namely: --

"Provided also that the acquisition of land for the projects listed in
sub-section (1 ) of section 10A and the purposes specified therein
shall be exempted from the provisions of the first proviso to this
sub-section.".

4. In the principal Act, in section 3,--

(i) in clause (j), in sub-clause (i), for the words and figures "the
Companies Act, 1956", the words and figures "the Companies Act, 2013"
shall be substituted;

(ii) after clause (y), the following clause shall be inserted, namely:

--

" (yy) "private entity" means any entity other than a
Government entity or undertaking and includes a proprietorship,
partnership, company, corporation, non-profit organisations or
other entity under any law for the time being in force;'.

5. In the principal Act, after Chapter III, the following Chapter
shall be inserted, namely:--

"CHAPTER IIIA
PROVISIONS OF CHAPTER II AND CHAPTER III NOT TO APPLY TO
CERTAIN PROJECTS

10A. (1) The appropriate Government may, in the public interest, by
notification, exempt any of the following projects from the application of

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the provisions of Chapter II and Chapter III of this Act, namely: --

(a) such projects vital to national security or defence of India and
every part thereof, including preparation for defence or defence
production;

(b) rural infrastructure including electrification;

(c) affordable housing and housing for the poor people;
(d ) industrial corridors set up by the appropriate Government and
its undertakings (in which case the land shall be acquired up to
one kilometer on both sides of designated railway line or roads for
such industrial corridor); and
(e ) Infrastructure projects including projects under public private
partnership where the ownership of land continues to vest with the
Government:

Provided that the appropriate Government shall, before the issue
of notification, ensure the extent of land for the proposed acquisition
keeping in view the bare minimum land required for such project.

(2 ) The appropriate Government shall undertake a survey of its
wasteland including arid land and maintain a record containing details of
such land, in such manner as may be prescribed by the appropriate
Government.

6. In the principal Act, in section 24, in sub-section (2 ), after the
proviso, the following proviso shall be inserted, namely:--

"Provided further that in computing the period referred to in this
sub-section, any period or periods during which the proceedings
for acquisition of the land were held up on account of any stay or
injunction issued by any court or the period specified in the award
of a Tribunal for taking possession or such period where
possession has been taken but the compensation is lying deposited
in a court or in any designated account maintained for this
purpose, shall be excluded.".

7. In the principal Act, in section 31, in sub-section (2 ), in clause

(h), after the words "affected families", the words "including compulsory
employment to at least one member of such affected family of a farm
labourer" shall be inserted.

8. In the principal Act, in section 46, in sub-section (6), in the
Explanation, in clause(b), the words "any person other than" shall be
omitted.

9. In the principal Act, after section 67, the following section shall
be inserted, namely--

"67A. The Authority shall, after receiving reference under section
64 and after giving notice of such reference to all parties
concerned, hold the hearing in the district where the land
acquisition takes place for settlement of the objections raised in
the reference.".

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10. In the principal Act, for section 87, the following section shall be
substituted, namely:--

"87. Where an offence under this Act has been committed by any
person who is or was employed in the Central Government or the
State Government, as the case may be, at the time of commission
of such alleged offence, the court shall take cognizance of such
offence provided the procedure laid down in section 197 of the
Code of Criminal Procedure, 1973 is followed."

11. In the principal Act, in section 101, for the words "a period of five
years", the words, "a period specified for setting up of any project or for
five years, whichever is later," shall be substituted.

12. In the principal Act, in section 105,--

(i) for sub-section (3), the following sub-section shall be
substituted, namely:--

"(3) The provisions of this Act relating to the determination of
compensation in accordance with the First Schedule, rehabilitation
and resettlement in accordance with the Second Schedule and
infrastructure amenities in accordance with the Third Schedule
shall apply to the enactments relating to land acquisition specified
in the Fourth Schedule with effect from 1st January, 2015.";
(ii ) sub-section (4 ) shall be omitted.

13. In the principal Act, in section 109, in sub-section (2 ),after clause
(d ), the following clause shall be inserted, namely:--

" (dd) the manner of undertaking a survey of waste land including
arid land and maintenance of the record containing the details of
such land under sub-section (2 ) of section 10A;'.

14. In the principal Act, in section 113, in sub-section (1 ),--

(i ) for the words "the provisions of this Part", the words "the
provisions of this Act" shall be substituted;
(ii ) in the proviso, for the words "a period of two years", the words
"a period of five years" shall be substituted.

15. (1 ) The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance,
2015, is hereby repealed.

(2 ) Notwithstanding such repeal, anything done or any action
taken under the principal Act, as amended by the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Amendment) Ordinance, 2015, shall be deemed to have
been done or taken under the principal Act, as amended by this
Ordinance.

STATEMENT OF OBJECTS AND REASONS

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The Central Government has enacted the Right to
Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
Gujarat is an industrially progressive State and more
and more investment is coming to the State. The State
Government aims to provide all basic facilities and
infrastructure to the entrepreneurs. However, it has
been experienced that after coming into force of the
said Act which has very stringent provisions for
acquiring the land, land acquisition has become a very
lengthy and difficult proposition. It is, therefore,
considered necessary to make the procedural part of the
land acquisition smooth and easy without interfering
with the rights of the persons whatsoever whose lands
are acquired.

Accordingly, it is proposed to exempt certain
projects from the application of the provisions of the
Chapter II of the Act which relates to determination of
social impact and public purpose as also from the
provisions of Chapter III of the Act which relates to
special provision to safeguard food security. These
projects inter alia include the projects which are vital to
national security or defence of India, rural
infrastructure including electrification, affordable
housing and housing for the poor people, etc. It is also
proposed to insert a provision to the effect that in case
where the person interested in the land who have
appeared before him have agreed in writing on the
matters to be included in the award then the Collector
may without making further inquiry, make an award

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according to the terms of agreement. Section 24 (2) of
the said Act provides that where an award under the old
Act that is Land Acquisition Act, 1894 has been made
five years or more prior to the commencement of the
Act of 2013 but the physical possession of the land has
not been taken or the compensation has not been paid,
the said proceeding shall be deemed to have lapsed. It is
proposed to insert a provision to the effect that for
computing the said period of five years, any period or
periods for which the acquisition of land was held up on
account of any stay or injunction of the court or such
period where possession has been taken but the
compensation has been lying deposited in any court for
this purpose shall be excluded. It is also proposed to
insert a provision to the effect that it would be
competent for the State Government to pay where the
land is to be acquired for its own use amounting to less
than one hundred acres or where the land is to be
acquired for projects which are linear in nature, such
lump sum amount equal to fifty per cent of the amount
of compensation to the affected families as
Rehabilitation and Resettlement cost.

This Bill seeks to amend the said Act to achieve the
aforesaid objects.

                       NITIN PATEL
MEMORANDUM REGARDING DELEGATED
LEGISLATION

This Bill involves delegation of legislative powers in the
following respect:-

Clause 1: Sub-clause (2) of this clause empowers the State

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Government to appoint, by notification in the Official Gazette,
the date on which the Act shall come into force.

Clause 3: New section 10A proposed to be inserted by
this clause empowers the State Government to exempt,
by notification in the Official Gazette, certain projects
from the applications of Chapter II and Chapter III of
the Act.

Clause 4: New section 23A proposed to be inserted by
this clause empowers the State Government to prescribe
by rules, the form in which the Collector shall make an
award without inquiry where the persons interested
have agreed to the matters to be included in the award.

The delegation of legislative powers as aforesaid is
necessary and is of a normal character.

Dated the 22nd February, 2016                                  NITIN
PATEL.

[Emphasis Supplied]

The 2016 Gujarat Bill

THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND
ACQUISITION, REHABILITATION AND RESETTLEMENT
(GUJARAT AMENDMENT) BILL, 2016

GUJARAT BILL NO. 5 OF 2016

A BILL further to amend the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 in its application to the State of
Gujarat.

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It is hereby enacted in the Sixty-seventh Year of the Republic
of India as follows:-

1. (1) This Act may be called the Short
Right to Fair Compensation and title
and
Transparency in Land Acquisition,
com
Rehabilitation and Resettlement menc
(Gujarat Amendment) Act, 2016. emen
t.

(2) It shall come into force on
such date as the State
Government may, by notification
in the Official Gazette, appoint.

Amendment 2. In the Right to Fair Compensation
of section 2 and Transparency in Land __ of
of __ of
Acquisition, Rehabilitation and 2013
2013 Resettlement Act, 2013
(hereinafter referred to as "the
principal Act"), in section 2, in
sub-section (2), after the second
proviso, the following proviso
shall be inserted, namely:-

"Provided also that the
acquisition of land for the
projects listed in section 10A
and the purposes specified
therein shall be exempted from
the provisions of the first
proviso to this sub-section."

Insertion of 3. In the principal Act, after section
new section 10, the following section shall be
10A in __ of

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2013 inserted, namely:-

Power of "10A. The State Government
State
may, in the public interest, by
Government
to exempt notification in the Official
certain Gazette, exempt any of the
projects
following projects from the
application of the provisions of
Chapter II and Chapter III of
this Act, namely:-

(a)Such projects vital to national
security or defence of India
and every part thereof,
including preparation for
defence or defence production;

(b) Rural infrastructure
including electrification;

(c)Affordable housing and
housing for the poor people;

(d) Industrial corridors set
up by the State Government
and its undertakings (in which
case the land shall be acquired
up to one kilometre on both
sides of designated railway line
or roads for such industrial
corridor); and

(e)Infrastructure projects
including projects under
public-private partnership

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where the ownership of land
continues to vest with the
Government;

Provided that the State
Government shall, before
the issue of notification,
ensure the extent of land
for the proposed
acquisition keeping in
view the bare minimum
land required for such
project."

4. In the principal Act, after section Inser
23, the following section shall be tion
of
inserted, namely:-

new
Award of "23A. (1) Notwithstanding secti
Collector anything contained in section 23, on
without 23A
if at any stage of the proceedings,
enquiry in in 30
case of the Collector is satisfied that all of
agreement the persons interested in the land 2013
of
who appeared before him have
interested
persons. agreed in writing on the matters
to be included in the award of the
Collector in the form prescribed
by rules made by the State
Government, he may, without
making further enquiry, make an
award according to the terms of
such agreement.

(2) The determination of

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compensation for any land under
sub-section (1) shall not in any
way affect the determination of
compensation in respect of other
lands in the same locality or
16 of 1908 elsewhere in accordance with the
other provisions of this Act.

(3) Notwithstanding anything
contained in the Registration Act,
1908, no agreement made under
sub-section (1) shall be liable to
registration under that Act".

5. In the principal Act, in section 24,
Amen
in sub-section (2), after the dmen
t of
existing proviso, the following
secti
proviso shall be inserted, namely:- on 24
"Provided further that in of 30
of
computing the period referred to
2013.

in this sub-section, any period or
periods during which the
proceedings for acquisition of the
land were held up on account of
any stay or injunction issued by
any court or the period specified
in the award of a Tribunal for
taking possession or such period
where possession has been taken
but the compensation is lying
deposited in a court or in any
designated account maintained

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for this purpose, shall be
excluded."

6. In the principal Act, after section Inser
31, the following section shall be tion
of
inserted, namely:-

new
secti
Payment of on
31A. Notwithstanding anything 31A
lump sum
amount by contained in this Act, it shall be in 30
State competent for the State of
Government 2013
Government to pay, whenever the
for its linear
nature land is to be acquired for its own
projects. use amounting to less than one
hundred acres or whenever the
land is to be acquired in case of
projects which are linear in
nature as referred to in proviso to
sub-section (4) of section 10, as
Rehabilitation and Resettlement
cost, such lump sum amount
equal to fifty per cent of the
amount of compensation as
determined under section 27 to
the affected families".

Amendment 7. In the principal Act, in section
of section 40, in sub-section (2), after
40 of 30 of
the words "approval of
2013
Parliament", the words "or to
comply with the directions
given by the Central
Government to the State

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Government" shall be added.

Amendment 8. In the principal Act, in section 46,
of section in sub-section (6), in the
46 of 30 of
Explanation, in clause (b), sub-

2013

clause (i) shall be deleted.

Substitution 9. In the Act, for section 87, the
of section following section shall be
87 of 30 of
substituted, namely:-

2013

O87. Where any offence under this
Act has been committed by any
person who is or was employed in
the Central Government or the
State Government, as the case may
be, at the time of commission of
such alleged offence, the court
shall take cognizance of such
offence provided the procedure laid
down in section 197 of the Code of 2 of
Criminal Procedure, 1973 is 1974
followed."

Notification dated 11.09.2018

Regarding consideration of
'Indexation
Formula' while declaring
Award under the Land Acquisition
Act,2013 (Gujarat Amendment-2016)

Government of Gujarat
Revenue Department
Resolution No. LAQ/2018/1976/GH
Sachivalaya, Gandhinagar
Dated 11/09/2018

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Read: (1) Resolution No. LAQ/22-2014/179/GH
dated 29/07/2016 of
Revenue Department.

(2) Resolution No. LAQ/22-2014/54/GH dated
04/04/2018 of Revenue
Department.

RESOLUTION

By virtue of the Gujarat State Amendment Bill,
2016, the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
and Resettlement (Amendment) Act, 2016 has been
brought into force with effect from 15/08/2016,
effecting certain amendments in the provisions of
the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and
Resettlement 2013 for the smooth implementation
of the provisions of the Act, keeping in mind the
object that the Act does not permit less
compensation than as provided under the Right to
Fair Compensation and Transparency in Land
Acquisition, Resettlement and Rehabilitation Act,
2013.

Section 26 of the Land Acquisition Act, 2013
provides for the following procedure for
determination of compensation:

(1)The amount of compensation (Jantri Rate, as
specified in the Stamp Act, 1889 for
registered sale deed/Banakhat/Agreement of
sale.

(2)Value of similar such lands situated in the
nearby area/villages.

(3)Price determined for the acquisition of private
land by consent.

Provision is to determine the compensation of
the amount whichever is higher amongst the
above three.

There is provision to multiply the factor mentioned
in Schedule-I with the market value which may be
determined as per the provisions of sub-section (2)
of section 26 and sub-section (1). Vide Government
Resolution dated 29/07/2016, for urban areas

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factor 1 (one) and for rural areas factor 2 (two)
should be the multiplier and compensation should
be determined accordingly.

It has been under the consideration of the
Government that despite the aforesaid factum, for
the important projects of the Government, where, it
is imperative to take the possession of the land
under the acquisition, 'Indexation Formula'
declared by the Income Tax Department of
Government of India, has been applied to the Jantri
value of 2011 for determination of the
compensation. Considering the above, it is
resolved that in the cases where farmers are ready
and willing to offer their land by consent award as
provided vide Government Resolution dated
04/04/2018 and the acquiring body is willing to
offer compensation as per 'indexation formula' for
determining the compensation, compensation be
determined accordingly.

This Resolution has been issued as per the file of
even number of the Revenue Department, in
concurrence dated 21/08/2018 of the Finance
Department.

By order and in the name of the Governor of
Gujarat.

(H.J. Rathod)
Under Secretary
Revenue Department,
Government of Gujarat.

Ministry of Railways Notification dated 08.10.2018

MINISTRY OF RAILWAYS
NOTIFICATION
New Delhi, the 8th October, 2018

S.O. 5181(E) . - WHEREAS certain parcels of land, specified in
the Schedule annexed hereto and located in the States of
Gujarat, are required for public purpose, namely, "Mumbai-
Ahmedabad High Speed Rail Project" and the Government of
Gujarat is required to acquire the land situated within its
territory.

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AND WHEREAS the Government of Gujarat, on the request of
the Central Government, has issued several notifications
under sub-section (1) of section 11 of the Right To Fair
Compensation And Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (30 of 2013) (the
said Act) for acquisition of land for the aforesaid public
purpose and also appointed Land Acquisition Officers by
designating them as Competent Authority for Land Acquisition
for the said public purpose:

AND WHEREAS in relation to acquisition of land situated
within the territory of Gujarat the Government of Gujarat, is
the appropriate Government and in relation to acquisition of
land for public purpose in more than one State, the Central
Government in consultation with the concerned State
Government, is the appropriate Government under sub-
clauses (i) and (iv) of clause (e) of section 3 of the said Act,
respectively;

NOW, THEREFORE, in exercise of the powers conferred
by clause (1) of article 258 of the Constitution, the
President, with the consent of the Government of the
State of Gujarat, hereby directs-

(a) that the functions of the Central Government as
appropriate Government under the said Act may be
performed by the Government of Gujarat subject to the
condition that the Central Government may itself, at any
time, perform the functions of the appropriate
Government under the said Act if it deems fit to do so:

(b) that all the actions taken by the Government of
Gujarat in relation to acquisition of land within the
territory of Gujarat for the aforesaid purpose shall be
deemed to have been taken for and on behalf of the
Central Government and shall be deemed to be legal
and valid for all purposes; and

(c) that the Government of Gujarat, while performing
any function under this notification, shall comply with
such general and special directions as the Central
Government may, from time to time, give.

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[Emphasis Supplied]

LETTER DATED 26.04.2016 BY PRINCIPAL SECRETARY
TO the GOVERNOR OF GUJARAT

No.

Guj./Bill/5/2016/1516/91/C
Legislative and
Parliamentary
Affairs Department
4/4, Sardar
Bhavan,
Sachivalaya,
Gandhinagar.
Dated the 26th
April, 2016.

To,

The Principal Secretary to Hon'ble the
Governor of Gujarat,
Raj Bhavan, Gandhinagar.

Subject : The Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (Gujarat
Amendment) Bill, 2016.

Sir,

In pursuance of article 200 of the Constitution of India, I am
directed to forward herewith for being presented to the
Governor, the authentic copy (in triplicate) of the Right to

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Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Gujarat
Amendment) Bill, 2016 (Guj. Bill No. 5 of 2016) which
was read for the third time and passed by the Gujarat
Legislative Assembly at its meeting held on the 31st March,
2016.

2. The subject matter of the Bill falls under Entry 42 in List
III of the Seventh Schedule to the Constitution of India. As
the provisions of the Bill are repugnant to the provisions of
the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
(Gujarat Amendment) Bill, 2013 which is an existing law
falling under entry 42 in the Concurrent list. It is therefore,
necessary to reserve the Bill for the consideration of the
President with reference to article 254(2) of the
Constitution.

3. I also forward herewith six copies of each of the items
Nos. 1 and 2
and
three copies of
item No. 3 of the
papers noted in the
margin. The copy
of
item No. 4 will be
sent afterward. The
Bill was not referred
to a
Select

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Committee.

     1. Bill as introduced in
the Gujarat Legislative
Assembly with the
Statement of Objects
and Reasons and
Memorandum
Regarding Delegated
Legislation.

2. Bill as read for the
third time and passed by
the Gujarat Legislative
Assembly.

3. The form of
certificate to be signed
by the Principal
Secretary to the
Governor and the
documents stated
therein as required
under the Government
of India, Ministry of
Home Affairs latter No.
17/23/72/Judl. Dated the
3rd August, 1972.

4. I am, therefore, to request you to move to the

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Government of India to obtain the assent of the President to
the said Bill and communicate to the State Government.

Yours faithfully,

sd/-

(C.J. Gothi)
Secretary to Government

CERTIFICATE

Subject: The Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (Gujarat
Amendment) Bill, 2016. (Guj. Bill No. 05 of 2016)

Certified that the following documents in connection with the
above mentioned legislative proposal have been attached
herewith-

1. Six copies of the letter of the State Government forwarding
the proposed legislation.

2. Three authentic copies of the legislation printed on
parchment paper, each endorsed by the Governor reserving
the legislation for the consideration of the President, and
leaving sufficient space below the Governor's signature for
appropriate endorsement by the President of India.

3. Six other copies of the Bill passed by the State
legislature.

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4. Six other copies of the Bill as introduced with the
Statement of Objects and Reasons and Memorandum
Regarding Delegated Legislature thereof.

5. The Legislation is an amending one. One upto-date copy
of the Principal Act, note on the clause of the proposed
legislation and a comparative statement showing relevant
clauses as it exists and as it would read after the proposed
amendment, are also attached.

THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT (GUJARAT
AMENDMENT) BILL, 2016
(Guj. Bill No. 05 of 2016)

Note on clauses of the proposed legislation

The Statement of Objects and Reasons of the Bill Contains
notes on the provision of the Bill.

Tel. No.(079) 23243171-72-73 OFFICE OF THE
SECRETARY TO
Fax No. (079) 23231121 THE GOVERNOR OF
GUJARAT
Website : rajbhavan.gujarat.gov.in
E-mail:sec-rajbhavan@gujarat.gov.in Raj Bhavan,
Gandhinagar-382020

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Important

No : GCP-1816-G-GS-3687 Dated :

21st May, 2016

To

The Secretary
Ministry of Home Affairs,
Government of India,
North Block,
Jaisalmer House,
NEW DELHI.

Sub: The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
and Resettlement (Gujarat Amendment) Bill, 2016.
(Guj. Bill No. 5 of 2016)

Sir,

I am directed to forward herewith the authentic copy (in
triplicate) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
and Resettlement (Gujarat Amendment) Bill, 2016
(Gujarat Bill No. 5 of 2016). It was read for the 3rd time
and passed by the Gujarat Legislative Assembly at its
meeting held on 31st March, 2016.

State Government in the Legislative Parliamentary
Affairs Department, vide its letter dated 26th April,
2016, had submitted the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Gujarat
Amendment) Bill, 2016 (Gujarat Bill No. 5 of 2016) for
the kind consideration of the Hon. Governorshri of
Gujarat for reserving it under Article 200 of the
Constitution of India and for its onward submission to
the Home Ministry for the kind consideration and
assent of the Hon. President of India with reference to
Clause (2) of Article 254 of the Constitution of India.

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State Government in the Legislative and
Parliamentary Affairs Department had made the
following observations with reference to the said Bill :

1. The Bill was passed by the Gujarat
Legislative Assembly at its meeting held on 31st
March, 2016.

2. The subject matter of the Bill falls under
Entry 42 in List III of the VIIth Schedule to the
Constitution of India.

3. The Bill was not referred to the Select
Committee.

4. AS the provisions of the Bill are repugnant to
the provisions of the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013,
which is an existing law falling under entry 42 in
the Concurrent List, the State Government has
opined that it is necessary to reserve the Bill for
the kind consideration of the Hon. President of
India with reference to Clause (2) of Article 254
of the Constitution of India.

The Statement of Objects Reasons attached to the Bill
gives the background under which the State Government
thought it necessary to introduce the Bill under
reference in the Gujarat Legislative Assembly. Since it
was necessary to reserve the Bill for the kind
consideration of the Hon. President of India, Shri O.P.
Kohli, Hon. Governorshri of Gujarat, has considered
the relevant provisions of the Bill and has reserved it.
He has also directed the undersigned to submit it to the
Government of India in the Ministry of Home Affairs for
further process at the Ministry's end so that the kind
assent of the Hon. President of India could be
obtained.

In view of the above, I am directed for forward herewith
the Form of Certificate duly signed by me and the
documents stated therein, as required under the
Government of India, Ministry of Home Affairs' letter
No.17/23/72/judicial dated 3rd August, 1972. Extracts
from the proceedings of the Gujarat Legislative
Assembly dated 31st March, 2016 would be sent
hereafter in due course.

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In view of the above, I would like to request you to move
the Government of India for obtaining the kind assent of
the Hon. President of India to the Bill under reference
at the earliest.

Regards.

Yours faithfully,

sd/-

                                                        (ARVIND JOSHI)
Encl : As above] Principal
Secretary to the Hon.
Governorshri

I reserve the Bill for consideration of the President under
article 200 of the Constitution of India.

(O.P. Kohli)
GOVERNOR OF GUJARAT
Dated the 20/05/2016

GUJARAT LEGISLATURE SECRETARIAT

GUJARAT BILL NO. 5 OF 2016

A BILL

further to amend the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 in its

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application to the State of Gujarat.

[SHRI NITIN PATEL,
MINISTER FOR
HEALTH]

(As read for a third time and passed by the
Legislative Assembly on 31st March, 2016.)

D.M PATEL,
Secretary,
Gujarat Legislative Assembly.

                                                __
GOVERNMENT CENTRAL PRESS,
GANDHINAGAR

Tel. No.(079) 23243171-72-73 OFFICE OF THE
SECRETARY TO
Fax No. (079) 23231121 THE GOVERNOR OF
GUJARAT

Website : rajbhavan.gujarat.gov.in
E-mail:sec-rajbhavan@gujarat.gov.in Raj Bhavan,
Gandhinagar-382020

IMPORTANT

TO
Shri C.J. Gothi,
Secretary to the Government of Gujarat,
Legislative Parliamentary Affairs Department,
Sachivalaya, Gandhinagar - 382 010.

Subject : The Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Gujarat
Amendment Bill, 2016. (Gujarat Bill No. 5 of 2016)

Sir,

Kindly refer to the State Government in the Legislative

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Parliamentary Affairs Department's leter no.
GUJ/Bill/5/2016/1516/91/C dated 26/04/2016. The Bill sent
by the State Government was reserved for the consideration
of the Hon. President of India as suggested by the
Government.

As per the Ministry of Home Affairs, Government of
India's letter No. 17/36/2016-JUDL PP dated
10/08/2016, the Ministry has returned two authenticated
copies of the Bill with the Hon. President's assent dated
8/8/2016 signifying thereon under Article 201 of the
constitution of India.

Receipt of this letter and two authenticated copies of the Bill
may kindly be acknowledged.

Yours Faithfully,
sd/-

(D.P. Shah)                                                                         Encl         :
As Above
Section Officer

Sr Existing provisions Clau Section as would
. se appear after
N No. incorporating
o. of amendment in the
the existing provisions
Bill
1. 2. Application of Act. 2. 2. Application of Act.
(1) xxx (1) xxx xxx
xxx
xxx
(2) The provisions of this Act
xxx relating to land acquisition,
compensation, rehabilitation and
(2) The provisions resettlement, Shall also apply,
of this Act when the appropriate Government
relating to land acquires land for the following
acquisition, purposes, namely:-
consent,
compensation, (a) for public private
rehabilitation and partnership projects, where
resettlement, shall the ownership of the land
also apply, when continues to vest with the
the appropriate Government, for public

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Government purpose as defined in sub-
acquires land for section (1);
the following
purposes, (b) for private companies for
namely:- public purpose, as defined in
sub-section (1):
(a) for
Provided that in the
public
case of acquisition for-
private
partnership
(i) private companies, the
projects,
prior consent of atleast eighty
where the

percent. of those affected families,
ownership
as defined in sub-clause clause (i)
of the land
and (v) of clause (c) of section 3;

               continues to
and
vest with
the (ii) public private partnership
government projects; the prior consent of at
, for public least seventy per cent. of those
purpose as affected families, as defined in
defined in sub-clauses (i) and (v) of clause
sub-section (c) of section 3, shall be obtained
(1): through a process as may be
prescribed by the appropriate
(b) for
Government:
private
companies Provided further that the
for public process of obtaining the consent shall be
purpose, as carried out along with the Social
defined in Impact Assessment study referred to in
sub-section section 4:
(1):
Provided also that no land shall

be transferred by way of acquisition, in
Provided that in the Scheduled Areas in
the case of acquisition contravention of any law (including any
for- order or judgment of a court which
has become final) relating to land transfer,

(i) private
prevailing in such Scheduled
companies, the prior
Areas:

consent of atleast eighty
percent of Provided also that the
those affected acquisition of land for the projects
families, as listed in sub-section (1) of section
defined in sub- 10A and the purposes specified therein
clauses (i) and shall be exempted from the provisions
(v) of clause (c) of the first proviso to this sub-
of Section 3; section.
and
(3) xxx xxx
(ii) public xxx
private

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partnership
projects, the
prior consent of
at least seventy
per cent of those
affected
families, as
defined in sub-
clauses (i) and
(v) of clause (c)
of Section 3,
shall be
obtained
through a
process as may
be prescribed by
the appropriate
Government:
Provided further
that the process
of obtaining the
consent shall be
carried out
along with the
Social Impact
Assessment
study referred to
in Section 4:

Provided also
that no land
shall be
transferred by
way of
acquisition, in
the Scheduled
Areas in
contravention of
any law
(including any
order or
judgment of a
court which has
become final)
relating to land
transfer,
prevailing in
such Scheduled
Areas.

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(3) xxx
xxx
xxx

2. Insertion of new section 3. 10A. Power of State Government to
10A. exempt certain projects.
The State Government may, in the

public interest, by notification in the
Official Gazette, exempt any of the
following projects from the
application of the provisions of
Chapter II and Chapter III of this
Act, namely:-

(a) such projects vital to national
security or defence of India
and every part thereof,
including preparation for
defence or defence production

(b) rural infrastructure including
electrification;

(c) affordable housing and housing
for the poor people;

(d) industrial corridors set up by
the State Government and its
undertakings (in which case
the land shall be acquired up to
one kilometer on both sides of
designated railway line or
roads for such industrial
corridor); and

(e) infrastructure projects
including projects under
public-private partnership
where the ownership of land
continues to vest with the
Government:

Provided that the State
Government shall, before the issue of
notification, ensure the extent of
land for the proposed acquisition keeping
in view the bare minimum land
required for such project.".

3.   Insertion of new section         23A. Award of Collector without
23A. enquiry in case of agreement of

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interested persons.
(1) Notwithstanding anything
contained in section 23, if at any
stage of the proceedings, the
Collector is satisfied that all the
persons interested in the land who
appeared before him have agreed
in writing on the matters to be
included in the award of the
Collector in the form prescribed
16 of by rules made by the State
1908. Government, he may, without
making further enquiry, make an
award according to the terms of
such agreement.
(2) The determination of
compensation for any land under
sub section (1) shall not in any
way affect the determination of
compensation in respect of other
lands elsewhere in accordance
with the other provisions of this
Act.
(3) Notwithstanding anything
contained in the Registration Act,
1908, no agreement made under
sub-section (1) shall be liable to
registration under that Act.
4. 24. Land acquisition 5. 24. Land acquisition process under Act
process under Act No. 1 No. 1 of 1894 shall be deemed to have
of 1894 shall be deemed lapsed in certain cases.
to have lapsed in certain (1) XXX
cases. XXX
(1) XXX XXX
1 of
1894 (2) Notwithstanding anything
XXX
contained in sub-section (1), in
case of land acquisition
XXX
proceedings initiated under the
(2) Land Acquisition Act, 1894,
Notwithstanding where an award under the said
anything section 11 has been made five
contained in sub- years or more prior to the
section (1), in commencement of this Act but the
case of land physical possession of the land has
acquisition not been taken or the
proceedings compensation has not been paid,
initiated under the the said proceedings shall be

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Land Acquisition deemed to have lapsed and the
Act, 1894, where appropriate Government, if it so
an award under chooses, shall initiate the
the said section 11 proceedings of such land
has been made acquisition afresh in accordance
five years or more with the provisions of this Act:
prior to the
commencement of Provided that where an
this Act but the award has been made and
physical compensation in respect of a
possession of the majority of land holdings has not
land has not been been deposited in the account of
taken or the the beneficiaries, then, all
compensation has beneficiaries specified in the
not been paid, the notification for acquisition under
said proceedings section 4 of the said Land
shall be deemed Acquisition Act, shall be entitled
to have lapsed and to compensation in accordance
the appropriate with the provisions of this Act:
Government, if it
so chooses, shall Provided further that in
initiate the computing the period referred to
proceedings of in this sub-section, any period or
such land periods during which the
acquisition afresh proceedings for acquisition of
in accordance the land were held up on
with the account of any stay or injunction
provisions of this issued by any court or the taking
Act: possession or such period where
possession has been taken but in
Provided any period specified in the
that where an award of a Tribunal for the
award has been compensation is lying deposited
made and in a court or designated account
compensation in maintained for this purpose,
respect of a shall be excluded.
majority of land
holdings has not
been deposited in
the account of the
beneficiaries,
then, all
beneficiaries
specified in the
notification for
acquisition under
section 4 of the
said Land
Acquisition Act,
shall be entitled to

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compensation in
accordance with
the provisions of
this Act.

5. Insertion of new section 6. 31A. Payment of lump- sum amount by
31A. State Government for its linear nature
projects.
Notwithstanding anything
contained in this Act, it shall be
competent for the State
Government to pay, whenever the
land is to he acquired for its own
use amounting to less than one
hundred acres or whenever the
land is to be acquired in case of
which are linear in nature as
referred to in proviso to sub-
section (4) of section 10, as
Rehabilitation and Resettlement
cost, such lump sum amount equal
to fifty per cent. of the amount of
compensation as determined under
section 27 to the affected families
6. 40. Special powers in 7. 40. Special powers in case of urgency to
case of urgency to acquire land in certain cases.
acquire land in certain
(1) In cases of urgency, whenever
cases.
the appropriate Government so
(1) In cases of directs, the Collector, though no
urgency, such award has been made, may,
whenever the on the expiration of thirty days
appropriate from the publication of the notice
Government so mentioned in section 21, take
directs, the possession of any land needed for
Collector, though a public purpose and such land
no such award has shall thereupon vest absolutely in
been made, may, the Government, free from all
on the expiration encumbrances.
of thirty days
from the (2) The powers of the appropriate
publication of the Government under sub-section (1)
notice mentioned shall be restricted to the minimum
in section 21, take area required for the defence of
possession of any India or national security or for
land needed for a any emergencies arising out of
public purpose natural calamities or any other
and such land emergency with the approval of
shall thereupon Parliament or to comply with the
directions given by the Central

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vest absolutely in Government to the State
the Government, Government:
free from all Provided that the Collector
encumbrances. shall not take possession of any
building or part of a building
under this sub-section without
(2) The powers giving to the occupier thereof at
of the least forty-eight hours notice of his
appropriate intention to do so, or such longer
Government notice as may be reasonably
under sub- sufficient to enable such occupier
section (1) to remove his movable property
shall be from such building without
restricted to unnecessary inconvenience.
the minimum
area required (3) to (5) XXX
for the XXX XXX
defence of
India or
national
security or
for any
emergencies
arising out of
natural
calamities or
any other
emergency
with the
approval of
Parliament:

Provided that
the Collector shall
not take
possession of any
building or part of
a building under
this sub-section
without giving to
the occupier
thereof at least
forty-eight hours
notice of his
intention to do so,
or such longer
notice as may be
reasonably
sufficient to

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enable such
occupier to
remove his
movable property
from such
building without
unnecessary
inconvenience.

(3) to (5)
XXX
XXX
XXX
7. 46. Provisions relating 8. 46. Provisions relating to rehabilitation
to rehabilitation and and resettlement to apply in case of
resettlement to apply in certain persons other than specified
case of certain persons persons.
other than specified
persons. (1) Where any person other than a
specified person is purchasing
(1) Where any land through private negotiations
person other than for an area equal to or more such
a specified person limits, as may be notified by the
is purchasing land appropriate Government,
through private considering the relevant State
negotiations for specific factors and for which the
an area equal to or payment of Rehabilitation and
more such limits, Resettlement Costs under this Act
as may be notified is required, he shall file an
by the appropriate application with the District
Government Collector notifying him of
considering the (a) intent to purchase;
relevant State
specific factors (b) purpose for which such
and circumstances purchase is being made;
for which the
payment of
(c) particulars of lands to be
Rehabilitation and
purchased.
Resettlement
Costs under this (2) to (5) XXX
Act is required, he XXX XXX
shall file an
application with (6) If any land has been purchased
the District through private negotiations by a
Collector 21 of person on or after the 5th day of
notifying him of 1860 September, 2011, which is more
(a) intent to than such limits referred to in sub-
purchase; section (1) and, if the same land is
(b) purpose acquired within three years from

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for which the date of commencement of this
such Act, then, forty per cent. of the
purchase is compensation paid for such land
being made; acquired shall be shared with the
original land owners.
(c)
particulars Explanation.- For the purpose of
of lands to this section, the expression-
be
purchased. (a) "original land owner" refers to
the owner of the land as on the 5th
(2) to (5) XXX day of September, 2011;

XXX (b) "specified persons" includes any
XXX person other than-
(i) deleted;
(6) If any land has (ii) Government company;
been purchased (ii) association of persons or
through private trust or society as registered
negotiations by a under the Societies Registration
person on or after Act, 1860, wholly or partially
the 5th day of aided by the appropriate
September, 2011, Government or controlled by
which is more than the appropriate Government.
such limits referred
to in sub-section
(1) and, if the same
land is acquired
within three years
from the date of
commencement of
this Act, then, forty
per cent. of the
compensation paid
for such land
acquired shall be
shared with the
original land
owners.
Explanation. - For
the purpose of this
section, the
expression-
(a) "original land
owner" refers to
the owner of the
land as on the 5th
day of September,
2011;
(b) "specified

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persons" includes
any person other
than-
(i) appropriate
Government;
(ii)
Government
company;
(iii)
association of
persons or
trust or society
as registered
under the
Societies
Registration
Act, 1860,
wholly or
partially aide
by the
appropriate
Government
or controlled
by the
appropriate
Government.
8. 87. Offences by 9. 87. Offences by Government Officials.
Government Where any offence under this
departments. Act has been committed by any
(1) Where an person who is or was employed
offence under this in the Central Government or
Act has been the State Government, as the
committed by any case may be, at the time of
department of the commission of such alleged
Government, the offence, the court shall take
head of the 2 of cognizance of such offence
department, be 1974 provided the procedure laid
deemed to be down in section 197 of the Code
guilty of the of Criminal Procedure, 1973 is
offence and shall followed.
be liable to
proceeded against
and punished
accordingly
Provided
that nothing
contained in this
section shall
render any person

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liable to any
punishment if
such person
proves offence
was committed
without his
knowledge or that
exercised all due
diligence to
prevent the
offence that the
such person
commission of
such offence.
(2)
Notwithstanding
anything
contained in sub-
section (1), where
any offence under
this Act has been
committed by a
Department of the
Government and
it is proved that
the offence has
been committed
with the consent
or connivance of,
or is attributable
to any neglect on
the part of any
officer, other than
the head of the
department, such
officer shall also
be deemed to be
guilty of that
offence and shall
be liable to be
proceeded against
and punished
accordingly.

17. Having thus reproduced the relevant provisions of
Constitution of India, Central Act, 2013, Amendment Act,
2016, communications of the State and Central Government

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above, we shall now proceed to analyse the chronology of
important events which as such are not in dispute. The same
are as under:

Sr. Date               Particulars                                                   Page        Page
No. No. in No. i
SCA SCA
No. No.
9864 17653
1 May, 2013 An announcement came to be made for 178 81

carrying out a joint feasibility study on
Mumbai-Ahmedabad High-Speed Rail
Project [`the Project' for short to be co-

                       financed by Government of India and
Government of Japan through its
governmental agency i.e. Japan

International Cooperation Agency [`JICA'
for short] was made.

2   01.01.2014         Right     to       Fair      Compensation
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act,

2013 [`the Central Act of 2013' for short]
came into effect.

3   3.12.2014          The     Central      Government          issued         an        -           82
Ordinance called "Right to Fair

Compensation and Transparency in Land
Acquisition, Rehabilitation and
Resettlement (Amendment) Ordinance,
2014".

4 30.05.2015 The Central Government issued the Right - 114
to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and

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Resettlement (Amendment) Second
Ordinance, 2015.

5 July, 2015 JICA, after considering various options, 179 81
submitted its Joint Feasibility Report,
wherein a dedicated route for the
Project, also came to be decided.

6 28.05.2015 Central Government issued a `Removal
of Difficulties Order, 2015 under Section
113(2) of the Central Act of 2013.

7 31.08.2015 The aforesaid Ordinance dated - 82
30.05.2015 came to be lapsed.

8 August to Various developments took place 179 82
December,
wherein the Government of Japan offered
2015
assistance package for the Project
followed by formation of an Empowered
Committee on Innovative Collaboration
under the Chairmanship of Vice-

Chairman, Niti Ayog.

9 December, Memorandum of Cooperation was signed 179 82
2015
between the Government of Japan and
Government of India for implementation
of the Project providing, inter alia, for
transfer of Technology, Make-in India for
High Speed Rail trains and establishment
of Training Institute for High Speed Rail.
10 12.02.2016 With a view to facilitate the 179 83
implementation and execution of the said
linear Project, the Government of India
and participating State Governments
formed a Joint Venture Company called
`National High-speed Corporation Ltd.'

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(`the Corporation' for short) consisting of
the Central Government, Government of
Gujarat and Government of Maharashtra
with a main object viz. to plan, design,
develop, build, commission, maintain,
operate and finance High-Speed Rail
Services between the State of
Maharashtra and State of Gujarat.

11 31.03.2016 The Right to Fair Compensation and                                           268           83
Transparency in Land Acquisition,
Rehabilitation and Resettlement
(Gujarat Amendment) Bill, 2016
came to be passed in the Legislative
Assembly.
12 March to Several rounds of meetings of the said 179 83
December,

different committees and working groups
2016
viz. (1) Joint Committee, (ii) Working
Group, (iii) Technical Group, etc. took
place for finalizing the detailed plans for
implementation and execution of the
Project.

13 26.04.2016 A communication was addressed to the 271 160
Hon'ble Governor, requesting to reserve
the aforesaid State Bill of 2016 for kind
consideration of the Hon'ble President
for the reasons stated therein.

14 21.05.2016 A communication came to be addressed 286 175
by the office of the Hon'ble President
along with the copies of the aforesaid Bill
and its Statement of Objects and
Reasons with the explanation of the

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nature of repugnancy, etc. and the
reasons for the amendment, for the grant
of assent.

15 08.08.2016 After the receipt of the request by - 120
the office of the Hon'ble the
Governor for the assent to the Bill of
2016, ultimately the same came to be
accorded by the Hon'ble the
President to the said Bill of 2016,
whereupon the said Bill got
culminated into the Right to Fair
Compensation Transparency in
Land Act, Rehabilitation and
Resettlement (Gujarat Amendment)
Act, 2016 (`the State Amendment Act
of 2016' for short) and which then
came into effect on 15.08.2016.

16 12.01.2017 Memorandum of Understanding came to 193 124
be arrived at between the Government of
Gujarat through Gujarat Infrastructure
Development Board on one hand and the
Corporation on the other for efficient
implementation / development of the
project and it was agreed that
Government of Gujarat would facilitate
the acquisition of the land for the
Project.

17 31.03.2017 The Government of India, Ministry of 196 127
Railways, Railway Board, addressed a
communication to the Chief Secretary,

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Government of Gujarat, stating, inter
alia, that the State Government may
nominate in each District, Dedicated
Land Acquisition Officers along with
required support staff with a view to
seeing that the land acquisition process
can be initiated as soon as the land plan
is submitted.

18 25.04.2017 In view of the above, the State 198 129
Government passed an order appointing
Land Acquisition Officers for land
acquisition for 8 districts (as mentioned
in the letter) by designating them as
`Competent Authority for Land
Acquisition' for the project.

19 14.09.2017         Hon'ble Prime Minister and his Janapese                             181           84
counterpart Mr. Shinzo Abe laid
foundation stone in the city of

Ahmedabad for the country's first 508
kms, High Speed Rail Project between
Mumbai and Ahmedabad.

20 17.09.2017         Loan agreements came to be signed                                     -           85
between JICA on one hand and
Government of India on the other,

providing Japanese ODA loans of 85.974
billion yen to be repaid in 50 years with
15 years grace, with interest at the rate
of 0.1%.

21 09.10.2017 A letter inter alia requesting the Chief 199 130
Secretary of the State Government was
addressed by the Corporation that it is

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planning to submit the Land Acquisition
Papers to the respective Land
Acquisition Officers progressively during
the month and that it is expected that all
the papers for the land acquisition would
be submitted to the concerned
Government Authorities during the
month, more particularly in view of the
size of the linear project, whose success
largely depends upon timely acquisition
inasmuch as the Project has been desired
to be delivered in August, 2022.

22 22.12.2017         The State Government thereafter, in its                           181           85
Roads Buildings Department

constituted a High Power Committee for
various issues, viz. for land acquisition,
forest environment, power supply,
utility shifting for implementation of the
Project.

23 December, An independent agency called M/s. - 92
2017 to July,
Arcadis carried out district-wise impact
2018
survey under the supervision of JICA.

24 02.02.2018 A communication was addressed to all 200 131
the concerned authorities by the State
Government informing about the
convening of the first meeting of the
High Power Committee under the
Chairmanship of the Chief Secretary of
the Government of Gujarat, along with
various Central as well as the State
Authorities.

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25 06.02.2018 The Under Secretary, Revenue 142 86
Department of the State Government
issued various taluka / village-wise
notifications in exercise of the powers
conferred under Section 10A of the State
Amendment Act of 2016.

26 16.02.2018 In view of the above, the meeting was 181 85
conducted for the issues relating to the
project, including the issue relating to
the land acquisition, as per the agenda
attached therewith.

27 20.03.2018         The     minutes        of      the     meeting             dated       204          135
16.02.2018 were sent to all the
authorities.
28 09.04.2018 The State Government at the behest of 55 86

the Central Government issued various
taluka / village-wise notifications under
Section 11(1) of the Central Act of 2013,
declaring that the lands mentioned in the
Schedule annexed to the said
notifications are required for the
designated public purpose i.e. Project in
question.

29 10.08.2018 In view of the survey conducted by M/s. - 92
Arcadis, a report namely `Resettlement
Action Plan - Mumbai Ahmedabad High
Speed Railway Project' containing a
detailed Social Impact Assessment
Study, was submitted.

30 11.09.2018         State    Government               in        its     Revenue            222          151
Department issued two Government

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Resolutions, clarifying the issues as

regards the parameters to be observed
while determining the compensation
under the Central Act of 2013.

31 08.10.2018 A               Presidential          Notification             under 145G                  140
Article 258 of the Constitution of
India came to be issued, entrusting
the State Government to execute
functions relating to the land
acquisition, while ratifying all
actions taken by the State

Government in relation to acquisition
of lands within the territory of
Gujarat.

18. We may now refer to decision of the Constitution Bench
in the case of Synthetics and Chemicals Ltd. Ors. v.
State of U.P. Ors. [(1990)1 SCC 109] about basic tenets
of construing provisions of the Constitution and in para 67,
the Apex Court held as under:

"67. It is well to remember that the meaning of the
expressions used in the Constitution must be found
from the language used. We should interpret the
words of the Constitution on the same principle of
interpretation as one applies to an ordinary law but
these very principles of interpretation compel one to
take into account the nature and scope of the Act
which requires interpretation. A Constitution is the
mechanism under which laws are to be made and
not merely an Act which declares what the law is to

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be. It is also well-settled that a Constitution must
not be construed in any narrow or pedantic sense
and that construction which is most beneficial to the
widest possible amplitude of its power, must be
adopted. An exclusionary clause in any of the
entries should be strictly and, therefore, narrowly
construed. No entry should, however, be so read as
not to rob it of entire content. A broad and liberal
spirit should, therefore, inspire those whose duty it
is to interpret the Constitution, and the courts are
not free to stretch or to pervert the language of an
enactment in the interest of any legal or
constitutional theory. Constitutional adjudication is
not strengthened by such an attempt but it must
seek to declare the law but it must not try to give
meaning on the theory of what the law should be,
but it must so look upon a Constitution that it is a
living and organic thing and must adapt itself to the
changing situations and pattern in which it has to
be interpreted. It has also to be borne in mind that
where division of powers and jurisdiction in a
federal Constitution is the scheme, it is desirable to
read the Constitution in harmonious way. It is also
necessary that in deciding whether any particular
enactment is within the purview of one Legislature
or the other, it is the pith and substance of the
legislation in question that has to be looked into. It
is well-settled that the various entries in the three
lists of the Indian Constitution are not powers but
fields of legislation. The power to legislate is given
by Art. 246 and other Articles of the Constitution.

The three lists of the 7th Schedule to the
Constitution are legislative heads or fields of
legislation. These demarcate the area over which
the appropriate legislatures can operate. It is well-
settled that widest amplitude should be given to the
language of the entries in three lists but some of
these entries in different lists or in the same list
may override and sometimes may appear to be in
direct conflict with each other, then and then only
comes the duty of the court to find the true intent
and purpose and to examine the particular
Legislation in question. Each general word would be
held to extend to all ancillary or subsidiary matters
which can fairly and reasonably be comprehended
in it. In interpreting an entry it would not be

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reasonable to import any limitation by comparing or
contrasting that entry with any other in the same
list. It has to be interpreted as the Constitution
must be interpreted as an organic document in the
light of the experience gathered. In the
Constitutional scheme of division of powers under
the legislative lists, there are separate entries
pertaining to taxation and other laws. The aforesaid
principles are fairly well-settled by various decisions
of this Court and other courts. Some of these
decisions have been referred to in the decision of
this Court in civil appeal No. 62(N)/ 70-- The India
Cement Ltd. etc. v. The State of Tamil Nadu etc."

In para 68, the very judgment refers to a
decision in the case of M.P.V.Sundararamier Co. v. State
of A.P. [AIR 1958 SC 468] where the Court laid down
liberal approach while considering legislative entries and it is
held as under:

"68 ......

[i] legislative entries are to be liberally
construed. But when a topic is governed by two
entries, then they have to be reconciled. It
cannot be that one entry is to be liberally
construed and the other entry is not to be
liberally construed.

[ii] under the Constitutional scheme of
division of powers under legislative lists, there
are separate entries pertaining to taxation and
other laws. A tax cannot be levied under a
general entry.

[iii] a Constitution is an organic document and
has to be so treated and construed.

[iv] if there is a conflict between the entries,
the first principle is to reconcile them. But the
Union power will prevail by virtue of Article
246(1) (3). The words "notwithstanding" and
"subject to" are important and give primacy to

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the central legislative power."

[Emphasis Supplied]

[b] The Apex Court in the case of Kaiser-I-Hind Pvt.

Ltd. and Ors., etc. v. National Textile Corporation Ltd.
Ors., etc. [AIR 2002 SC 3404] in paras 10 and 11 referred
to essentials of Article 254 of the Constitution of India, in para
12 reference is made to clause (2) of Article 254 and in para
13 narrated the ingredients. Paragraphs 10, 11, 12 , 13 and
14 of the said judgment read as under:

"Essentials of Article 254

10 For deciding the controversy, we found first
refer to Article 254, which reads thus:-

"254. Inconsistency between laws made by
Parliament and laws made by the
Legislatures of States.--(1) If any provision
of a law made by the Legislature of a State
is repugnant to any provision of a law
made by Parliament which Parliament is
competent to enact, or to any provision of
an existing law with respect to one of the
matters enumerated in the Concurrent
List, then, subject to the provisions of
Clause (2), the law made by Parliament,
whether passed before or after the law
made by the Legislature of such State, or,
as the case may be, the existing law, shall
prevail and the law made by the
Legislature of the State shall, to the extent
of the repugnancy, be void.

2. Where a law made by the Legislature of
a State with respect to one of the matters
enumerated in the Concurrent List
contains any provision repugnant to the
provisions of an earlier law made by

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Parliament or an existing law with respect
to that matter, then, the law so made by
the Legislature of such State shall, if it
has been reserved for the consideration of
the President and has received his assent,
prevail in that State:

Provided that nothing in this clause shall
prevent Parliament from enacting at any
time any law with respect to the same
matter including a law adding to,
amending varying or repealing the law so
made by the Legislature of the State."

[Emphasis supplied]

11. It is apparent that language of Clause (1)
of Article 254 gives supremacy to the law made
by the Parliament, which Parliament is
competent to enact. It inter alia provides
[subject to the provisions of Clause (2)] that -

[a] if any provision of law made by the
Legislature of State is repugnant to any
provision of a law made by the Parliament
which the Parliament is competent to
enact, then the law, made by the
Parliament whether passed before or after
the law made by the Legislature of such
State shall prevail and the law made by
Legislature of the State shall, to the
extent of repugnancy, be void; or

[b] if any provision of a law made by the
legislature of State is repugnant to any
provision of an existing law with respect to
one of the matters enumerated in the
Concurrent List, then the existing law
shall prevail and the law made by the
legislature of the State shall, to the extent
of repugnancy, be void.

12 For the purpose of the present case,
Clause (2) requires interpretation, which on
the analysis provides that where a law:--

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[a] made by the legislature of a State;

[b] with respect to one of the matters
enumerated in the Concurrent List;

[c] contains any provision repugnant to the
provisions of an earlier law made by the Parliament
or existing law with respect to that matter;

then, the law so made by the legislature of the State
shall-

[1] if it has been 'reserved for consideration of the
President'; and

[2] has received 'his assent';

would prevail in that State.

13. Hence, it can be stated that for the State law
to prevail, following requirements must be satisfied-

[1] law made by the legislature of a State
should be with respect to one of the
matters enumerated in the Concurrent
List;

[2] it contains any provision repugnant
to the provision of an earlier law made by
the Parliament or an existing law with
respect to that matter;

[3] the law so made by the Legislature of
the State has been reserved for the
consideration of the President; and

[4] it has received 'his assent'.

14 In view of aforesaid requirements, before
obtaining the assent of the President, the State
Government has to point out that the law made
by the State legislature is in respect of one of
the matters enumerated int eh Concurrent List
by mentioning entry/entries of Concurrent List
and that it contains provision or provisions

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repugnant to the law made by the Parliament
or existing law. Further, the words "reserved
for consideration" would definitely indicate
that there should be active application of mind
by the President to the repugnancy pointed out
between the proposed State law and the earlier
law made by the Parliament and the necessity
of having such a law, in facts and
circumstances of the matter, which is
repugnant to a law enacted by the Parliament
prevailing in a State. The word 'consideration'
would main feast that after careful thinking
over and due application of mind regarding the
necessity of having State law which is
repugnant to the law made by the Parliament,
the President may grant assent. This aspect is
further reaffirmed by use of word "assent" in
Clause (2) which implies knowledge of the
President to the repugnancy between the State
law and the earlier law made by the Parliament
on the same subject matter and the reasons for
grant of such assent. The word "assent" would
mean in the context as an expressed agreement
of mind to what is proposed by the State."

[Emphasis
Supplied]
By referring to Corpus Juris Secundum about
Assent and referring to its dictionary meaning in Shorter
Oxford Dictionary, Bouvier's Law Dictionary, Law Lexicon of
British India by P. Ramanatha Aiyer, Websters' 3rd New
International Dictionary [Vol.I], Random House Dictionary,
and Words Phrases Judicial Dictionary, in paras 15 and 16
held as under:

"15. The learned counsel Mr. Ravichandran has
rightly pointed out the different meanings given to
the word "assent" in various dictionaries, which are
as under:-

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Corpus Juris Secundum-

Assent (As a Noun) - A passive act of concurrence;
the act of the mind in admitting or agreeing to
anything; the act of agreeing or consenting to
accept some proposition; and, by context,
"acceptance". It also has been defined as agreement
or approval;..... "Assent" implies knowledge of some
kind in the party assenting to that to which he
assents; also permission on the part of the party
assenting....As used in some statutes, however,the
term has been held to require affirmative, positive
action on the apart of the party assenting.. It has
been said that the term indicates the meeting of the
minds of the contracting parties, and that the word
is applicable only to conduct before or at the time of
the doing of an act and hence does not include an
approval after the commission of an act.... Assent--
(As a Verb)-- The verb implies affirmative action of
some sort as distinguished from mere silence and
inaction; and has been defined as meaning to
accept, agree to or consent, to accord agree,
concede, or yield; to express and agreement of the
mind to what is alleged or proposed; to express
one's agreement acquiescence, or concurrence; also
to admit a thing as true; to approve, ratify, or
confirm; and sometimes to authorize or empower.

Shorter Oxford Dictionary-

Assent - [1] The concurrence of the will compliance
with a desire. [2] Official, judicial,or formal
sanction; the action or instrument that signifies
such sanction ME. [3] Accord. [4] Opinion. [5]
Agreement with a statement, or matter of opinion;
mental acceptance.

Bouvier's Law Dictionary-

Assent--Approval of something done. An undertaking
to do something in compliance with a request...

Law Lexicon of British India by P. Ramanatha
Aiyar - Assent - The act of the mind in admitting or
agreeing to the truth of a proposition proposed for
acceptance; consent, agreeing to; to admit, yield, or
conceded: to express an agreement of the mind to
what is alleged or proposed, (as) Royal assent or

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Viceeroy's assent to an enactment passed in the
Legislative Assembly; Executor's assent to a legacy;
assent of a corporation to bye-laws.

Royal Assent, in England, the approbation given by
the Sovereign in Parliament to a bill which has
passed both houses, after which it becomes law.
This assent may be given in two ways; (a) in person,
when the Sovereign comes to the House of Peers,
the Commons are sent for, and the titles of all the
bills which have passed are read. The royal assent in
declared in Norman. French by the Clerk of the
Parliament. (b) By letters patent, under the great
seal signed by the Sovereign, and notified in his or
her absence.

Websters' 3rd New International Dictionary
(Vol.I) - Assent-1. common accord; general
approval a concurrence with approval: [2] the
accepting as true or certain of something (as a
doctrine or conclusion) proposed for belief..

Random House Dictionary--

Assent - [1] To agree or concur, subscribe to )often
fol. By to): to assent to a statement. [2] To give in;
yield; concede; assenting to his demands, she did as
she was told-n. [3] Agreement as to a proposal;
concurrence. [4] Acquiesence; compliance.

Words Phrases Judicial Dictionary - Mitra-

Assent - Assent means agreeing to or recognizing a
matter...etc. Wharton's Law Lexicon.

16. Applying the aforesaid meaning of the word
assent' and form the phraseology used in Clause (2)
the object of Article 254(2) appears that even
though the law made by the Parliament would have
supremacy, after considering the situation
prevailing in the State and after considering the
repugnancy between the State legislation and
earlier law made by the Parliament, the President
may give his assent to the law made by the State
legislature. This would require application of mind
to both the laws and the repugnancy as well as the
peculiar requirement of the State to have such a

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law, which is repugnant to the law made by the
Parliament. The word assent is used purposefully
indicating affirmative action of the proposal made
by the State for having law repugnant to the earlier
law made by the Parliament. It would amount to
accepting or conceding and concurring to the
demand made by the State of such law. This cannot
be done without consideration of the relevant
material. Hence the paras used is reserved for
consideration, which under the Constitution
cannot be an idle formality but would require
serious consideration on the material placed
before the President. The 'consideration' could
only be to the proposal made by the State. "

[Emphasis Supplied]

Then, the Apex Court referred to various decisions
and in paras 25 to 30 held as under:

"25 In our view, for finding out whether the assent
was given qua the repugnancy between the State
legislation and the earlier law made by the
Parliament, there is no question of deciding validity
of such assent nor the assent is subjected to any
judicial review. That is to say, merely looking at the
record, for which assent was sought, would not
mean that the Court is deciding whether the assent
is rightly, wrongly or erroneously granted. The
consideration by the Court is limited to the extent
that whether the State has sought assent qua
particular earlier law or laws made by the
Parliament prevailing in the State or it has sought
general assent. In such case, the Court is not
required to decide the validity of the 'assent'
granted by the President. In the present case, the
assent was given after considering extent and
nature of repugnancy between the Bombay Rent Act
and Transfer of Property Act as well as the
Presidency Small Cause Courts Act. Therefore, it
would be totally unjustified to hold that once the
assent is granted by the President, the State law
would prevail qua earlier other law enacted by the
Parliament for which no assent was sought for nor
which was reserved for the consideration of the

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President.

26 The learned senior counsel for the appellant
further referred to the decision of Madras High
Court in Bapalal and Co. v. P. Thakurdas and Ors.
wherein the Court held thus:-

"...In this case the assent is sought to be
invalidated on the ground that the President
was not made aware of the repugnancy
between the proposed State Law (Rent Control
Act) and the existing Central Law (the Transfer
of Property Act) in Ex.P.12, which does
indicate the extent to which the State law is
repugnant to the earlier existing Central Law.
It is said that in this case Ex.P.12 does not
exactly indicate how far the proposed
State Act is repugnant to the provisions of
the existing Central law and any assent
given without considering the extent and
the nature of the repugnancy should be
taken to be no assent at all. However, a
perusal of Ex.P.12 shows that Section 10
of the Act has been referred as a provision
which can be said to be repugnant to the
provisions of the Civil Procedure Code and
the Transfer of Property Act which are
existing laws on the concurrent subject.
Further, a copy of the Bill has been
reserved for the consideration of the
President under Article 254(2) of the
Constitution. Therefore, even if the State
Legislature did not point out the
provisions of the Bill which are repugnant
to the existing Central Law, the President
should be presumed to have gone through
the Bill to see whether any of the
provisions is repugnant to the Central Law
and whether such a legislation is to be
permitted before giving assent to the Bill .
Merely because the State Government
when seeking the assent of the President
does not indicate the exact provisions
which are repugnant to the earlier Central
Law under Concurrent List, the assent

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given by the President cannot be said to
be invalid. According to the learned Advocate-
General inconsistency between the proposed
law and the existing Central Law has been
pointed out under Ex.P.12, and the Bill has
been sent for scrutiny and that the Central
Government should be taken to know its job
while considering the question as to whether
the assent is to be given or withheld, and,
therefore, there is no room for any contention
that the assent in this case is not valid."

27. In that case, the Court also observed thus:-

"The assent given by the President to the Tamil
Nadu Buildings (Lease and Rent Control) Act
of 1960 cannot be held to be invalid for two
reasons (i) the inconsistency between the State
Law and the Central Law on the subject was in
fact pointed out while seeking the assent of the
President and - (ii) even otherwise the Bill
having been sent for the scrutiny of the
President, the President should be taken to
have scrutinised the bill before giving his
assent with the assistance of his legal
advisers."

28. In this case, we have made it clear that we are
not considering a question that the assent of the
President was rightly or wrongly given. We are also
not considering the question that-whether 'assent'
given without considering the extent and the nature
of the repugnancy should be taken as no assent at
all. Further, in the aforesaid case, before Madras
High Court, also the relevant proposal made by the
State was produced. The Court had specifically
arrived at a conclusion that Ex.P.12 shows that
Section 10 of the Act has been referred to as the
provision which can be said to be repugnant to the
provisions of Code of Civil Procedure and the
Transfer of Property Act, which are existing laws on
the concurrent subject. After observing that, the
Court has raised the presumption. We do not think
that it was necessary to do so. In any case as
discussed above, the essential ingredients of Article

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254(2) are -- (1) mentioning of the entry/entries with
respect to one of the matters enumerated in the
Concurrent List; (2) stating repugnancy to the
provisions of an earlier law made by the Parliament
and the State law and reasons for having such law;
(3) thereafter it is required to be reserved for
consideration of the President; and (4) receipt of the
assent of the President.

29 In this view of the matter, it cannot be said
that the High Court committed any error in looking
at the file of the correspondence Ex.F collectively
for finding out - for what purpose 'assent' of the
President to the Extension of Acts extending the
duration of Bombay Rent Act was sought for and
given. After looking at the said file, the Court
considered relevant portion of the letter, which
referred to the Bill passed by the Maharashtra
Legislative Council and the Maharashtra Legislative
Assembly extending the duration of the Bombay
Rent Act for 5 years from Ist April, 1986. The letter
stated: "As the provisions of the Bombay Rents,
Hotel and Lodging House Rates Control Act,
1947 are repugnant to the provisions of the
Transfer of Property Act, 1882 and the
Presidency Small Cause Courts Act, 1882,
which are the existing laws relating to entries
6, 13 and 46 in the Concurrent Legislative List,
and as Clause 2 of the Bill is intended to
extend the life of the principal Act for a period
of five years, it is necessary to reserve the Bill
for the consideration and assent of the
President with reference to Article 254(2) of
the Constitution of India. The Governor has
reserved the Bill for the consideration of the
President under Article 200 of the Constitution
of India." A telegraphic message dated 25th
February, 1986 sent by the Special Commissioner,
New Delhi, addressed to two Secretaries of the
State of Maharashtra and the Secretary to the
Governor of the State of Maharashtra shows that
the President accorded his assent to this Bill on
23rd February, 1986. Thereafter, the Court rightly
relied upon the decision in Gram Panchayat's case
(supra) for arriving at the conclusion that the assent

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of the President was sought to the Extension Acts
for the purpose of overcoming its repugnancy
between the Bombay Rent Act on the one hand and
the Transfer of Property Act and the President
Small Cause Courts Act on the other. The efficacy of
the President's assent was limited to that purpose
only. Therefore, the P.P. Eviction Act would prevail
and not the Bombay Rent Act.

30 We further make it clear that granting of
assent under Article 254(2) is not exercise of
legislative power of President such as
contemplated under Article 123 but is part of
legislative procedure. Whether procedure
prescribed by the Constitution before enacting
the law is followed or not can always be looked
into by the Court."

[Emphasis Supplied]

[c] On the aspect of retrospective / retroactive
operation / retrospectivity of a statute, the Apex Court in the
case of State of Rajasthan Ors. v. Basant Agrotech
(India) Ltd. [(2013)15 SCC 1] laid down certain principles
while distinguishing from power of retrospective delegated
legislation vis-à-vis Article 245 of the Constitution of India and
in paragraphs 21 to 24 observed as under:

"21 There is no dispute over the fact that a
legislature can make a law retrospectively or
prospectively subject to justifiability and acceptability
within the constitutional parameters. A subordinate
legislation can be given retrospective effect if a
power in this behalf is contained in the principal Act.
In this regard we may refer with profit to the decision
in Mahabir Vegetable Oils (P) Ltd. and another v.
State of Haryana and Others [(2006)3 SCC 620],
wherein it has been held that : [SCC p.633, para 41-
42]-

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"41 We may at this stage consider the
effect of omission of the said note. It is
beyond any cavil that a subordinate
legislation can be given a retrospective
effect and retroactive operation, if any
power in this behalf is contained in the
main Act. The rule-making power is a
species of delegated legislation. A
delegatee therefore can make rules only
within the four corners thereof.

42. It is a fundamental rule of law that no
statute shall be construed to have a
retrospective operation unless such a
construction appears very clearly in the
terms of the Act, or arises by necessary and
distinct implication. (See West v.
Gwynne[14])."

23. In MRF Ltd. Kottayam v. Asstt. Commissioner
(Assessment) Sales Tax and Others [(2006)8 SCC
702], the question arose whether under Section 10
(3) of the Kerala General Sales Tax Act, 1963 power
was conferred on the Government to issue a
notification retrospectively. This Court approved the
view expressed by the Kerala High Court in M. M.
Nagalingam Nadar Sons v. State of Kerala[16],
wherein it has been stated that in issuing
notifications under Section 10, the Government
exercises only delegated powers while legislature has
plenary powers to legislate prospectively and
retrospectively, a delegated authority like the
Government acting under the powers conferred on it
by the enactment concerned, can exercise only those
powers which are specifically conferred. In the
absence of such conferment of power the
Government, the delegated authority, has no power
to issue a notification with retrospective effect.

23 In Vice-Chancellor, M.D. University, Rohtak v.
Jahan Singh[17], it has been clearly laid down that in
the absence of any provision contained in the
legislative Act, a delegatee cannot make a delegated
legislation with retrospective effect.

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25. In Ahmedabad Urban Development Authority v.
Sharadkumar Jayantikumar Pasawalla and others
[(1992)3 SCC 285], a three-Judge Bench has ruled
thus: -

"7... in a fiscal matter it will not be proper to
hold that even in the absence of express
provision, a delegated authority can impose tax
or fee. In our view, such power of imposition of
tax and/or fee by delegated authority must be
very specific and there is no scope of implied
authority for imposition of such tax or fee. It
appears to us that the delegated authority must
act strictly within the parameters of the
authority delegated to it under the Act and it
will not be proper to bring the theory of implied
intent or the concept of incidental and ancillary
power in the matter of exercise of fiscal power."

[Emphasis Supplied]

The Apex Court no doubt referred to certain decisions
cited by learned counsel appearing for the State in paras 28
and 32 including the decision in the case of D.G.Gose and
Co. (Agents) (P) Ltd. v. State of Kerala, (1980)2 SCC
410] where meaning of retrospective was produced from
Craies on Statute Law. Paras 28 to 32 of the judgment read
as under:

"28. In A. Thangal Kunju Musaliar [AIR 1956 SC 246],
the Constitution Bench, apart from other facets, was
dealing with the validity of the notification dated
26.7.1949 as it had brought the Travancore Taxation
on Income (Investigation, Commission) Act into force
with effect from 22.7.1949. The said notification was
challenged on the ground that it was bad as it had
purported to bring the Act into operation from
retrospective effect. It was urged that Government
could not, in the absence of express provision
authorizing in that behalf, fix the commencement of
the Act retrospectively and further the courts

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disfavoured retrospective operation of laws which
prejudicially affect vested rights.

29 Repelling the said submission, the Constitution
bench stated thus : [A.Thangal Kunju Musaliar case,
[AIR 1956 SC 246] -

"39 .....No such reason is involved in this case.
Section 1(3) authorises the Government to bring
the Act into force on such date as it may, by
notification, appoint. In exercise of the power
conferred by this section the Government surely
had the power to issue the notification bringing
the Act into force on any date subsequent to the
passing of the Act. There can, therefore, be no
objection to the notification fixing the
commencement of the Act on 22.7.1949 which
was a date subsequent to the passing of the Act.

So the Act has not been given retrospective
operation, that is to say, it has not been
made to commence from a date prior to the
date of its passing. It is true that the date
of commencement as fixed by the
notification is anterior to the date of the
notification but that circumstance does not
attract the principle disfavouring the
retroactive operation of a statute."

After so stating, their Lordships proceeded to advert
to the aspect whether the notification was
retrospective or not and in that regard ruled thus :

[A.Thangal Kunju Musaliar case, [AIR 1956 SC 246] -

"39 ...The operation of the notification
itself is not retrospective. It only brings the
Act into operation on and from an earlier
date. In any case it was in terms authorised
to issue the notification bringing the Act
into force on any date subsequent to the
passing of the Act and that is all that the
Government did."

30. On a seemly appreciation of the ratio laid down
in that case, we have no trace of doubt in our mind

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that the said decision has no applicability to the facts
in the case at hand. As is evident, the notification
giving effect to the enactment was prior to the
date of issue of notification but much after the
legislature had passed the enactment and
further the language employed in the Act was
quite different. Hence, it can be stated with
certitude that the said decision does not further
the point urged by the learned counsel for the
State.

31. The authority in D.G. Gose and Co. (Agents) Pvt.
Ltd. v. State of Kerala [(1980)2 SCC 410], has been
commended to us by the learned counsel for the
State, as we understand, to substantiate the point
that a levy can always be imposed at any point of time
even from the retrospective date unless it is grossly
unreasonable. He has specifically drawn inspiration
from paragraphs 13 and 14 of the said decision. Be it
noted, in the said case, the controversy related to the
Kerala Building Tax Act, 1961. The said Act was
eventually passed after lot of changes on 2.4.1975 by
which tax was imposed on buildings. However, the
imposition of tax on buildings was made with
retrospective effect from 1.4.1973.

32 One of the challenges pertained to retrospective
application of the law. In that context, the
Constitution Bench, speaking through Shinghal, J., in
paragraphs 14 to 16, stated thus : D.G. Gose and Co.
(Agents) Pvt. Ltd. v. State of Kerala [(1980)2 SCC
410] -

"14. Craies on Statute Law, seventh Edn., has
stated the meaning of "retrospective" at p. 367
as follows:

"A statute is to be deemed to be
retrospective, which takes away or impairs
any vested right acquired under existing
laws, or creates a new obligation, or
imposes a new duty, or attaches a new
disability in respect of transactions or
considerations already past. But a statute
'is not properly called a retrospective

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statute because a part of the requisites for
its action is drawn from a time antecedent
to its passing'."

It has however, not been shown how it could be
said that the Act has taken away or impaired
any vested right of the assessees before us
which they had acquired under any existing law,
or what that vested right was. It may be that
there was no liability to building tax until the
promulgation of the Act (earlier the Ordinances)
but mere absence of an earlier taxing statute
cannot be said to create a "vested right", under
any existing law, that it shall not be levied in
future with effect from a date anterior to the
passing of the Act. Nor can it be said that by
imposing the building tax from an earlier date
any new obligation or disability has been
attached in respect of any earlier transaction or
consideration. The Act is not therefore
retrospective in the strictly technical sense.

"15 What it does is to impose the building
tax from April 1, 1973. But as was held in
Bradford Union v. Wiltshire[23], if the
language of the statute shows that the
legislature thinks it expedient to authorise
the making of retrospective rates, it can fix
the period as to which the rate may be
retrospectively made.

16 This Court had occasion to examine
the validity of the retrospective levy of
Sales Tax in Tata Iron and Steel Co. Ltd. v.
State of Bihar[24] and it was held that that
was not beyond the legislative competence
of the State legislature."

[Emphasis Supplied]

Then the Apex Court also considered Three Judges
Bench decision in the case of State of State of M.P. v.

Tikamdas [(1975)2 SCC 100] wherein the Apex Court held
that there is no doubt that unlike legislation made by a

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sovereign legislature, subordinate legislation made by a
delegate cannot have retrospective effect unless the rule-
making power in the statute concerned expressly or by
necessary implication confers power in this behalf.

Thus, what is required to be seen is whether
rule making powers expressly or any necessary
implication confers power about giving retrospective
effect to the statute.

[d] In the case of A.A.Padmanabhan v. State of
Kerala Ors. [(2018)4 SCC 537] the Apex Court in
paragraphs 30, 31, 35, 38 and 40, held as under:

"30. The principles for ascertaining the inconsistency
/ repugnancy between two statutes were laid down
by this Court in Deep Chand Vs. State of U.P and
others, AIR 1959 SC 648. K. Subba Rao, J. speaking
for the Court stated following in paragraph 29 : [AIR
p.665]

"29......Repugnancy between two statutes may
thus be ascertained on the basis of the
following three principles:

[1] Whether there is direct conflict
between the two provisions;

[2] Whether Parliament intended to lay
down an exhaustive code in respect of the
subject-matter replacing the Act of the
State Legislature and

[3] Whether the law made by Parliament
and the law made by the State Legislature
occupy the same field."

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31 This Court in State of Kerala and others Vs.
Mar Appraem Kuri Company Limited and another,
(2012) 7 SCC 106, in paragraph 47 held that : [SSC
p.130]

"47. The question of repugnancy between
parliamentary legislation and State legislation
arises in two ways. First, where the legislations,
though enacted with respect to matters in their
allotted spheres, overlap and conflict. Second,
where the two legislations are with respect to
matters in the Concurrent List and there is a
conflict. In both the situations, the
Parliamentary legislation will predominate, in
the first, by virtue of non obstante clause in
Article 246(1); in the second, by reason of
Article 254(1)".

There cannot be any dispute to the proposition laid
down by this Court to the State of Kerala case
[(2012)7 SCC 106].

35 Even if it is assumed that, in working of two
legislations which pertain to different subject
matters, there is an incidental encroachment in
respect of small area of operation of two legislations,
it cannot be held that one legislation overrides the
other. When we look into the pith and substance of
both the legislations, i.e., Act, 1958 and Act, 2013, it
is clear that they operate in different fields and it
cannot be said that Act, 1958 is repugnant to Act,
2013. It is also relevant to note that under Section
15(2) it is provided that where any school has vested
in the Government under sub-section (1),
compensation shall be paid to the persons entitled
thereto on the basis of the market value thereof as on
the date of the notification.

38 Applying the ratio as laid down by this Court in
the above noted cases, we conclude that Act, 1958
and Act, 2013 operate in different fields and Section
15 of the Act, 1958 in no manner is overridden or
repugnant to Act, 2013. There was no invalidity in
the exercise of the power of the State Government
under Section 15 to take over the schools. The
owners being entitled to compensation at the market

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rate on the date of notification, the procedure for
taking over the property is in full compliance of
requirement of Article 300A of the Constitution of
India. We, thus, do not find any merit in this
submission of learned counsel for the appellant.

40. This Court dismissed the appeal filed by the
Council and had made the observation that right to
property is not only a constitutional or a statutory
right but also a human right. Therefore, in case the
person aggrieved is deprived of the land without
making the payment of compensation, it would be
tantamount to forcing the said uprooted persons to
become vagabond. There cannot be any dispute to
the proposition laid down by this Court as above. For
the land acquired under the Land Acquisition Act
compensation determined under the provisions of the
Land Acquisition Act, 1894 is required to be paid to
the land owner. The order granting interim relief to
the appellant was held to be just order in which this
Court refused to interfere."

[e] In the case of Rajiv Sarin Anr. v. State of
Uttarkhand Ors [(2011)8 SCC 708], the Apex Court in
paragraphs 29, 33, 34, 35, 45, 49, 56, 59, 63, 66, 67, 70, 73,
78, 79, 85 86 read as under:

"Repugnancy and Article 254 of the Constitution

29 Learned senior counsel appearing for the
appellants raised two contentions in the context of
the inter-relation of the Indian Forest Act 1927 and
the KUZALR Act; firstly, the case of alleged
discrimination in as much as the Central Act i.e. the
Indian Forests Act provides for compensation under
the Land Acquisition Act 1894, which is higher; and
secondly, the case of alleged repugnancy.

33 It is trite law that the plea of repugnancy would
be attracted only if both the legislations fall under
the Concurrent List of the Seventh Schedule of the
Constitution. Under Article 254 of the Constitution, a

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State law passed in respect of a subject matter
comprised in List III i.e. the Concurrent List of the
Seventh Schedule of the Constitution would be
invalid if its provisions are repugnant to a law passed
on the same subject by the Parliament and that too
only in a situation if both the laws i.e. one made by
the State legislature and another made by the
Parliament cannot exist together. In other words, the
question of repugnancy under Article 254 of the
Constitution arises when the provisions of both laws
are completely inconsistent with each other or when
the provisions of both laws are absolutely
irreconcilable with each other and it is impossible
without disturbing the other provision, or conflicting
interpretations resulted into, when both the statutes
covering the same field are applied to a given set of
facts. That is to say, in simple words, repugnancy
between the two statutes would arise if there is a
direct conflict between the two provisions and the
law made by the Parliament and the law made by the
State Legislature occupies the same field. Hence,
whenever the issue of repugnancy between the law
passed by the Parliament and of State legislature are
raised, it becomes quite necessary to examine as to
whether the two legislations cover or relate to the
same subject matter or different.

34 It is by now a well-established rule of
interpretation that the entries in the list being
fields of legislation must receive liberal
construction inspired by a broad and generous
spirit and not a narrow or pedantic approach.
This Court in the cases of Navinchandra Mafatlal v.
CIT, reported in AIR 1955 SC 58 and State of
Maharashtra v. Bharat Shanti Lal Shah, reported in
(2008) 13 SCC 5 held that each general word should
extend to all ancillary and subsidiary matters which
can fairly and reasonably be comprehended within it.
In those decisions it was also reiterated that
there shall always be a presumption of
constitutionality in favour of a statute and while
construing such statute every legally
permissible effort should be made to keep the
statute within the competence of the State
Legislature.

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35 As and when there is a challenge to the
legislative competence, the courts will try to
ascertain the pith and substance of such enactment
on a scrutiny of the Act in question. In this process, it
would also be necessary for the courts to examine the
true nature and character of the enactment, its
object, its scope and effect to find out whether the
enactment in question is genuinely referable to a
field of the legislation allotted to the respective
legislature under the constitutional scheme.

45 For repugnancy under Article 254 of the
Constitution, there is a twin requirement, which is to
be fulfilled: firstly, there has to be a "repugnancy"
between a Central and State Act; and secondly, the
Presidential assent has to be held as being non-
existent. The test for determining such repugnancy is
indeed to find out the dominant intention of the both
legislations and whether such dominant intentions of
both the legislations are alike or different. To put it
simply, a provision in one legislation in order to give
effect to its dominant purpose may incidentally be on
the same subject as covered by the provision of the
other legislation, but such partial or incidental
coverage of the same area in a different context and
to achieve a different purpose does not attract the
doctrine of repugnancy. In nutshell, in order to
attract the doctrine of repugnancy, both the
legislations must be substantially on the same
subject.

46 Repugnancy in the context of Article 254 of the
Constitution is understood as requiring the
fulfillment of a "Triple test" reiterated by the
Constitutional Bench in M. Karunanidhi v. Union of
India, (1979) 3 SCC 431 @ page 443-444, which
reads as follows:-

"24. It is well settled that the presumption
is always in favour of the constitutionality
of a statute and the onus lies on the person
assailing the Act to prove that it is
unconstitutional. Prima facie, there does
not appear to us to be any inconsistency

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between the State Act and the Central Acts.
Before any repugnancy can arise, the
following conditions must be satisfied:

"1 That there is a clear and direct
inconsistency between the Central Act
and the State Act.

2 That such an inconsistency is
absolutely irreconcilable.

3 That the inconsistency between
the provisions of the two Acts is of
such nature as to bring the two Acts
into direct collision with each other
and a situation is reached where it is
impossible to obey the one without
disobeying the other."

In other words, the two legislations must cover
the same field. This has to be examined by a
reference to the doctrine of pith and substance.

49 This Court succinctly observed as follows in
Hoechst Pharmaceuticals Ltd. v. State of Bihar,
(1983) 4 SCC 45, at page 88 : [SCC para 67]:

"67. Article 254 of the Constitution makes
provision first, as to what would happen in the
case of conflict between a Central and State law
with regard to the subjects enumerated in the
Concurrent List, and secondly, for resolving
such conflict. Article 254(1) enunciates the
normal rule that in the event of a conflict
between a Union and a State law in the
concurrent field, the former prevails over the
latter. Clause (1) lays down that if a State law
relating to a concurrent subject is `repugnant'
to a Union law relating to that subject, then,
whether the Union law is prior or later in time,
the Union law will prevail and the State law
shall, to the extent of such repugnancy, be void.
To the general rule laid down in clause (1),
clause (2) engrafts an exception viz. that if

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the President assents to a State law which
has been reserved for his consideration, it
will prevail notwithstanding its repugnancy
to an earlier law of the Union, both laws
dealing with a concurrent subject. In such a
case, the Central Act, will give way to the State
Act only to the extent of inconsistency between
the two, and no more. In short, the result of
obtaining the assent of the President to a State
Act which is inconsistent with a previous Union
law relating to a concurrent subject would be
that the State Act will prevail in that State and
override the provisions of the Central Act in
their applicability to that State only. The
predominance of the State law may however be
taken away if Parliament legislates under the
proviso to clause (2). The proviso to Article
254(2) empowers the Union Parliament to
repeal or amend a repugnant State law, either
directly, or by itself enacting a law repugnant to
the State law with respect to the `same matter'.
Even though the subsequent law made by
Parliament does not expressly repeal a State
law, even then, the State law will become void
as soon as the subsequent law of Parliament
creating repugnancy is made. A State law would
be repugnant to the Union law when there is
direct conflict between the two laws. Such
repugnancy may also arise where both laws
operate in the same field and the two cannot
possibly stand together: See Zaverbhai Amaidas
v. State of Bombay; M. Karunanidhi v. Union of
India and T. Barai v. Henry Ah Hoe."

56 In a Full Bench decision of this Court in the
case of State of Maharashtra v. Bharat Shanti
Lal Shah, (2008) 13 SCC 5, this Court observed as
follows at page 23 -24 : [SCC para 48]

"48. Article 254 of the Constitution succinctly
deals with the law relating to inconsistency
between the laws made by Parliament and the
State Legislature. The question of repugnancy
under Article 254 will arise when a law made by

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Parliament and a law made by the State
Legislature occupies the same field with respect
to one of the matters enumerated in the
Concurrent List and there is a direct conflict in
two laws. In other words, the question of
repugnancy arises only in connection with
subjects enumerated in the Concurrent List. In
such situation the provisions enacted by
Parliament and the State Legislature cannot
unitedly stand and the State law will have to
make way for the Union law. Once it is proved
and established that the State law is repugnant
to the Union law, the State law would become
void but only to the extent of repugnancy. At the
same time it is to be noted that mere possibility
of repugnancy will not make a State law invalid,
for repugnancy has to exist in fact and it must
be shown clearly and sufficiently that the State
law is repugnant to the Union law."

Presidential Assent and Article 254(2) of the
Constitution

59 The issue argued was whether "General
Assent" can always be sought and obtained by
the State Government. Reference was made to a
Constitutional Bench decision of this Court in
Gram Panchayat Jamalpur v. Malwinder Singh,
(1985) 3 SCC 661; which was subsequently
further interpreted and followed in the case of
P.N. Krishna Pal v. State of Kerala, (1995)
Suppl. 2 SCC 187.

63 It is in this context, that the finding of this
Court in Kaiser-I-Hind (P) Ltd. at para 65 becomes
important to the effect that "pointed attention" of
the President is required to be drawn to the
repugnancy and the reasons for having such a law,
despite the enactment by Parliament, has to be
understood. It summarizes the point as follows at
page 215-16 as follows:

"65. The result of the foregoing discussion is:

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1 It cannot be held that summary
speedier procedure prescribed under
the PP Eviction Act for evicting the
tenants, sub-tenants or unauthorised
occupants, if it is reasonable and in
conformity with the principles of
natural justice, would abridge the
rights conferred under the
Constitution.

2[a] Article 254(2) contemplates
"reservation for consideration of the
President" and also "assent".

Reservation for consideration is not
an empty formality. Pointed attention
of the President is required to be
drawn to the repugnancy between the
earlier law made by Parliament and
the contemplated State legislation and
the reasons for having such law
despite the enactment by Parliament.

[b] The word "assent" used in clause
(2) of Article 254 would in context
mean express agreement of mind to
what is proposed by the State.

[c] In case where it is not indicated
that "assent"

is qua a particular law made by
Parliament, then it is open to the
Court to call for the proposals made
by the State for the consideration of
the President before obtaining assent.

3 Extending the duration of a
temporary enactment does not
amount to enactment of a new law.

However such extension may require
assent of the President in case of
repugnancy."

Article 300A of the Constitution and Compensation

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66 After passing of the Constitution (Forty Forth)
Amendment Act 1978 which deleted Article 19(1)(f)
and Article 31 from the Constitution and introduced
Article 300A in the Constitution, the Constitution
(44th Amendment) Act inserted in Part XII, a new
chapter: "Chapter IV - Right to Property" and
inserted a new Article 300A, which reads as follows:-

"300-A Persons not to be deprived of
property save by authority of law - No person
shall be deprived of property save by authority
of law"

67 It would be useful to reiterate paragraphs 3, 4
and 5 of the Statement of Objects and Reasons of the
Constitution (44th Amendment) Act which reads as
follows:-

"3. In view of the special position sought to be
given to fundamental rights, the right to
property, which has been the occasion for more
than one Amendment of the Constitution, would
cease to be a fundamental right and become
only a legal right. Necessary amendments for
this purpose are being made to Article 19 and
Article 31 is being deleted. It would, however,
be ensured that the removal of property from
the list of fundamental rights would not affect
the right of minorities to establish and
administer educational institutions of their
choice.

4. Similarly, the right of persons holding land
for personal cultivation and within the ceiling
limit to receive compensation at the market
value would not be affected.

5. Property, while ceasing to be a fundamental
right, would, however, be given express
recognition as a legal right, provision being
made that no person shall be deprived of his
property save in accordance with law."

70 Under Indian Constitution, the field of legislation
covering claim for compensation on deprivation of one's
property can be traced to Entry 42 List III of the

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Seventh Schedule of the Constitution. The Constitution
(7th Amendment) Act, 1956 deleted Entry 33 List I,
Entry 36 List II and reworded Entry 42 List III
relating to "acquisition and requisitioning of
property". The right to property being no more a
fundamental right, a legislation enacted under the
authority of law as provided in Article 300A of the
Constitution is not amenable to judicial review merely
for alleged violation of Part III of the Constitution.

73 It was further submitted that the inherent powers
of public purpose and eminent domain are embodied in
Article 300A, and Entry 42 List III, "Acquisition and
Requisitioning of Property" which necessarily connotes
that the acquisition and requisitioning of property will
be for a public use and for compensation and whenever
a person is deprived of his property, the limitations as
implied in Article 300A as well as Entry 42 List III will
come into the picture and the Court can always examine
the legality and validity of the legislation in question. It
was further submitted that awarding nil compensation is
squarely amenable to judicial review under Articles 32
and 226 of the Constitution of India.

78 When the State exercises the power of acquisition
of a private property thereby depriving the private
person of the property, provision is generally made in
the statute to pay compensation to be fixed or
determined according to the criteria laid down in the
statute itself. It must be understood in this context that
the acquisition of the property by the State in
furtherance of the Directive Principles of State Policy
was to distribute the material resources of the
community including acquisition and taking possession
of private property for public purpose. It does not
require payment of market value or indemnification to
the owner of the property expropriated. Payment of
market value in lieu of acquired property is not a
condition precedent or sine qua non for acquisition. It
must be clearly understood that the acquisition and
payment of amount are part of the same scheme and
they cannot be separated. It is true that the adequacy of
compensation cannot be questioned in a court of law,
but at the same time the compensation cannot be
illusory.

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79 Further, it is to be clearly understood that the
stand taken by the State that the right, title or interests
of a hissedar could be acquired without payment of any
compensation, as in the present case, is contrary to the
express provisions of KUZALR Act itself. Section 12 of
the KUZALR Act, 1960 states that every hissedar whose
rights, title or interest are acquired under Section 4,
shall be entitled to receive and be paid compensation.
Further, Section 4A of the KUZALR Act makes it clear
that the provisions of Chapter II (Acquisition and
Modifications of existing rights in Land), including
Section 12, shall apply mutatis mutandis to a forest land
as they apply to a khaikhari land."

85 That being so, the omission of the Section 39(1) (e)

(ii) of the UPZALR Act 1950 as amended in 1978 is of no
consequence since the UPZALR Act leaves no choice to
the State other than to pay compensation for the private
forests acquired by it in accordance with the mandate
of the law.

86 In view of the above, the present appeal is partly
allowed while upholding the validity of the Act and
particularly Sections 4A, 18(1) (cc) and 19 (1) (b) of the
KUZALR Act, we direct the second respondent, i.e.
Assistant Collector to determine and award
compensation to the appellants by following a
reasonable and intelligible criterion evolved on the
aforesaid guidelines provided and in light of the
aforesaid law enunciated by this Court hereinabove.

[f] In the case of Sidharth Sarawgi v. Board of
Trustees for the Port of Kolkata Ors. [(2014)16 SCC
248], the Apex Court considered about delegation of
legislative function / power and extent of permissible
delegation and in paras 2, 3, 4 and 5 discussed a subtle
distinction between delegation of legislative powers and
delegation of non-legislative / administrative powers. Paras 2
to 5 of the judgment read a under:

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"2. Delegation is the act of making or
commissioning a delegate. It generally means
parting of powers by the person who grants the
delegation and conferring of an authority to do
things which otherwise that person would have to
do himself. Delegation is defined in Black's Law
Dictionary as

"the act of entrusting another with authority
by empowering another to act as an agent or
representative". In P. Ramanatha Aiyar's, The
Law Lexicon, "delegation is the act of making
or commissioning a delegate. Delegation
generally means parting of powers by the
person who grants the delegation, but it also
means conferring of an authority to do things
which otherwise that person would have to do
himself".

3 Justice Mathew in Gwalior Rayon Silk
Manufacturing (Wvg.) Co. Ltd. v. The Assistant
Commissioner of Sales Tax and Others [(1974)4
SCC 98], has succinctly discussed the concept of
delegation. Paragraph 37 reads as follows:

"37. ... Delegation is not the complete handing
over or transference of a power from one
person or body of persons to another.
Delegation may be defined as the entrusting,
by a person or body of persons, of the exercise
of a power residing in that person or body of
persons, to another person or body of persons,
with complete power of revocation or
amendment remaining in the grantor or
delegator. It is important to grasp the
implications of this, for, much confusion of
thought has unfortunately resulted from
assuming that delegation involves or may
involve, the complete abdication or abrogation
of a power. This is precluded by the definition.
Delegation often involves the granting of
discretionary authority to another, but such
authority is purely derivative. The ultimate
power always remains in the delegator and is

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never renounced."

4 There is a subtle distinction between
delegation of legislative powers and delegation of
non-legislative/administrative powers. As far as
delegation of power to legislate is concerned, the
law is well-settled: the said power cannot be sub-
delegated. The Legislature cannot delegate
essential legislative functions which consist in the
determination or choosing of the legislative policy
and formally enacting that policy into a binding
rule of conduct [Harishankar Bagla v. State of M.P.
(AIR 1954 SC 465). Subordinate legislation which
is generally in the realm of Rules and Regulations
dealing with the procedure on implementation of
plenary legislation is generally a task entrusted to
a specified authority. Since the Legislature need
not spend its time for working out the details on
implementation of the law, it has thought it fit to
entrust the said task to an agency. That agency
cannot entrust such task to its subordinates; it
would be a breach of the confidence reposed on the
delegate.

5 Regarding delegation of non-legislative /
administrative powers on a person or a body to do
certain things, whether the delegate himself is to
perform such functions or whether after taking decision
as per the terms of the delegation, the said agency can
authorize the implementation of the same on somebody
else, is the question to be considered. Once the power is
conferred, after exercising the said power, how to
implement the decision taken in the process, is a matter
of procedure. The Legislature may, after laying down the
legislative policy, confer discretion on an administrative
agency as to the execution of the policy and leave it to
the agency to work out the details within the framework
of that policy (Khambhalia Municipality v. State of
Gujarat, AIR 1967 SC 1048). So long as the essential
functions of decision making is performed by the
delegate, the burden of performing the ancillary and
clerical task need not be shouldered by the primary
delegate. It is not necessary that the primary delegate
himself should perform the ministerial acts as well. In
furtherance of the implementation of the decision

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already taken by the primary delegate as per the
delegation, ministerial or clerical tasks may be
performed by authorized officers. The complexity of
modern day administration and the expansion of
functions of the State to the economic and social
spheres have made it necessary that the
Legislature gives wide powers to various
authorities when the situation requires it. Today's
governmental functions are a lot more complex and
the need for delegation of powers has become more
compelling. It cannot be expected that the head of
the administrative body performs each and every
task himself."

[Emphasis Supplied]

The Apex Court in para 9 of the above judgment held as

under:

"9 The Constitution confers power and imposes duty
on the Legislature to make laws and the said functions
cannot be delegated by the Legislature to the executive.
The Legislature is constitutionally required to keep in its
own hands the essential legislative functions which
consist of the determination of legislative policy and its
formulation as a binding rule of conduct. After the
performance of the essential legislative function by the
Legislature and laying the guiding policy, the Legislature
may delegate to the executive or administrative
authority, any ancillary or subordinate powers that are
necessary for giving effect to the policy and purposes of
the enactment. In construing the scope and extent of
delegated power, the difference between the essential
and non-essential functions of the delegate should also
be borne in mind. While there cannot be sub-delegation
of any essential functions, in order to achieve the
intended object of the delegation, the non-essential
functions can be sub-delegated to be performed under
the authority and supervision of the delegate."

[g] In the case of State of Jammu and Kashmir v.
Lakhwinder Kumar Ors. [(2013)6 SCC 333] in the

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context of subordinate / delegated legislative and rule-making
power in the statute, when the power is conferred in general
and thereafter in support of enumerated matters, the
particularization in respect of the specified subject is
construed as merely illustrative and does not limit the scope
of general power, the Apex Court in para 24 referred to a
decision in the case of King Emperor v. Sibnath Bajerji
[AIR 1945 PC 156] and in para 25 referred to a decision
in the case of Afzal Ullah v. State of U.P. [AIR 1964 SC
264], and held as under:

"24 The Privy Council applied this principle in the case
of Emperor v. Sibnath Banerji, AIR 1945 PC 156, to
uphold the validity of Rule 26 of the Defence of India
Rules, which though was found in excess of the express
power conferred under enumerated provision, but
covered under general power. Relevant portion of the
judgment reads as under:

"Their Lordships are unable to agree with the
learned Chief Justice of the Federal Court on his
statement of the relative positions of sub-sections
(1) and (2) of Section 2, Defence of India Act, and
counsel for the respondents in the present appeal
was unable to support that statement, or to
maintain that R.26 was invalid. In the opinion of
their Lordships, the function of sub- section (2) is
merely an illustrative one; the rule-making power is
conferred by sub-section (1), and "the rules" which
are referred to in the opening sentence of sub-
section (2) are the rules which are authorized by,
and made under, sub-section (1); the provisions of
sub-section (2) are not restrictive of sub-section
(1), as indeed is expressly stated by the words
"without prejudice to the generality of the powers
conferred by sub-section (1)." There can be no
doubt - as the learned Judge himself appears to
have thought - that the general language of sub-

section (1) amply justifies the terms of R.26, and
avoids any of the criticisms which the learned

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Judge expressed in relation to sub-section (2).

Their Lordships are therefore of opinion that Keshav
Talpade v. Emperor, I.L.R. (1944) Bom. 183, was
wrongly decided by the Federal Court, and that R.26 was
made in conformity with the powers conferred by sub-
section (1) of Section 2, Defence of India Act."

25 A constitution Bench of this Court in the case
of Afzal Ullah v. State of Uttar Pradesh, AIR 1964
SC 264, quoted with approval the law laid down by
the Privy Council in the case of Sibnath Banerji
(supra) and held that enumerated provisions do not
control the general terms as particularization of
topics is illustrative in nature. It reads as follows:
[Afzal Ullah v. State of Uttar Pradesh, AIR 1964 SC 268,
para 13]

"13. Even if the said clauses did not justify the
impugned bye- law, there can be little doubt that
the said bye-laws would be justified by the general
power conferred on the Boards by Section 298(1).
It is now well-settled that the specific provisions
such as are contained in the several clauses of
Section 298(2) are merely illustrative and they
cannot be read as restrictive of the generality of
powers prescribed by Section 298(1), vide Emperor
v. Sibnath Banerji, AIR 1945 PC 156. If the powers
specified by Section 298(1) are very wide and they
take in within their scope bye-laws like the ones
with which we are concerned in the present appeal,
it cannot be said that the powers enumerated
under Section 298(2)control the general words
used by Section 298(1). These latter clauses merely
illustrate and do not exhaust all the powers
conferred on the Board, so that any cases not
falling within the powers specified by Section
298(2) may well be protected by Section 298(1),
provided, of course, the impugned bye-law can be
justified by-reference to the requirements of
Section 298(1). There can be no doubt that the
impugned bye-laws in regard to the markets
framed by Respondent No. 2 are for the
furtherance of municipal administration under the
Act, and so, would attract the provisions of Section

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298(1). Therefore, we are satisfied that the High
Court was right in coming to the conclusion that
the impugned bye-laws are valid."

26 In view of what we have observed above it is
evident that Rule 41 of the Rules has been made to give
effect to the provisions of the Act. In our opinion, it has
not gone beyond what the Act has contemplated or is
any way in conflict thereof. Hence, this has to be treated
as if the same is contained in the Act. Wide discretion
has been given to the specified officer under Section 80
of the Act to make a choice between a Criminal Court
and a Security Force Court but Rule 41 made for the
purposes of carrying into effect the provision of the Act
had laid down guidelines for exercise of that discretion.
Thus, in our opinion, Rule 41 has neither gone beyond
what the Act has contemplated nor it has supplanted it
in any way and, therefore, the Commanding Officer has
to bear in mind the guidelines laid for the exercise of
discretion."

[Emphasis Supplied]

[h] In the context of doctrine of pith and substance
vis-à-vis Article 245 of the Constitution of India and
repugnancy between Central Act and State Act certain
principles are laid down by the Apex Court in the case of
I.T.C. Ltd. Ors. v. State of Karnataka Ors. [1985
(supp) SCC 476] in paras 17 and 18, which read as under:

"17 It is also not disputed that under s. 2 of the
1975 Act the entire tobacco industry was taken over
by the Central Government. Having thus narrated the
admitted facts I would now proceed to the merits of
the appeals. To begin with, I might indicate the
cardinal principles justifying the competency of the
respective legislatures with respect to the entries
concerned:-

[1] Entries in each of the Lists must be given the
most liberal and widest possible interpretation and

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no attempt should be made to narrow or whittle
down the scope of the entries. This is a well settled
principle of law and was reiterated in a recent
decision of this Court in S.P. Mittal v. Union of India
Ors. [(1983)1 SCC 51] where this Court observed
thus : [SCC p.80, para 64]

"It may be pointed out at the very outset that
the A function of the Lists is not to confer
powers. They merely demarcate the legislative
fields. The entries in the three Lists are only
legislative heads or fields or legislation and the
power to legislate is given to appropriate
legislature by Articles 245 and 248 (sic 246) of
the Constitution.

[2] The application of the doctrine o f pith and
substance really means that where a legislation
falls entirely within the scope of an entry within
the competence of a State legislature then this
doctrine will apply and the Act will not be
struck down, the doctrine of pith and substance
has been summarised in the case of Delhi Cloth
General Mills Co. Ltd. v. Union of India Ors.
[(1983)4 SCC 166] where Desai, J. speaking for
the Court made the following observations :
[SCC p.192, para 33]

"To resolve the controversy if it becomes
necessary to ascertain to which entry in
the three Lists, the legislation is referable,
the Court has evolved the doctrine of pith
and substance. If in pith and substance,
the legislation falls within one entry or the
other but some portion of the subject-

matter of the legislation incidentally
trenches upon and might enter a field
under another List, then it must be held to
be valid in its entirety, even though it
might incidentally trench on matters
which are beyond its competence."

[3] The consideration of encroachment or
entrenchment of one List in another and the extent
thereof is also well established. If the entrenchment
is minimal and does not affect the dominant part of

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some other entry, which is not within the competence
of the State Legislature, the Act may be upheld as
constitutionally valid.

[4] The nature and character of the scope of the
entries having regard to the touch stone of the
provisions of Arts. 245 and 246.

[5] The doctrine of occupied field has a great place
in the interpretation as to whether or not a particular
legislature is competent to legislate on a particular
entry. This means that when the field is completely
occupied by List I, as in this case, then the State
legislature is wholly incompetent to legislate and no
entrenchment or A encroachment, minimal or
otherwise, by a State legislature is permitted. In
other words, where the field is not wholly occupied,
than a mere minimal encroachment would not affect
the validity of the State legislation.

18 Thus, in my opinion, the five principles have to
be read and construed together and not in isolation-
where however, the Central and the State legislation
cover the same field then the central legislation
would prevail. it is also well settled that where two
Acts, one passed by the Parliament and the other by
a State legislature, collide and there is no question of
harmonising them, then the Central legislation must
prevail."

[i] About the approach of a writ court while
interpreting non obstante clause, the Apex Court in the case
of Indra Kumar Patodia Anr. V. Reliance Industries
Limited Ors. [(2012)13 SCC 1] held in paras 18 and 19
as under:

"18 It is clear that the non obstante clause has to be
given restricted meaning and when the section
containing the said clause does not refer to any
particular provisions which intends to over ride but
refers to the provisions of the statute generally, it is not

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permissible to hold that it excludes the whole Act and
stands all alone by itself. In other words, there requires
to be a determination as to which provisions answers the
description and which does not. While interpreting the
non obstante clause, the Court is required to find out the
extent to which the legislature intended to do so and the
context in which the non obstante clause is used. We
have already referred to the definition of complaint as
stated in Section 2(d) of the Code which provides that
the same needs to be in oral or in writing. The non
obstante clause, when it refers to the Code only excludes
the oral part in such definition.

19 According to us, the non obstante clause in Section
142(a) is restricted to exclude two things only from the
Code i.e. (a) exclusion of oral complaints and (b)
exclusion of cognizance on complaint by anybody other
than the payee or the holder in due course. Section 190
of the Code provides that a Magistrate can take
cognizance on a complaint which constitutes such an
offence irrespective of who had made such complaint or
on a police report or upon receiving information from
any person other than a police officer or upon his own
knowledge. Non obstante clause, when it refers to the
core, restricts the power of the Magistrate to take
cognizance only on a complaint by a payee or the holder
in due course and excludes the rest of Section 190 of the
Code. In other words, none of the other provisions of the
Code are excluded by the said non obstante clause,
hence, the Magistrate is therefore required to follow the
procedure under Section 200 of the Code once he has
taken the complaint of the payee/holder in due course
and record statement of the complainant and such other
witnesses as present at the said date. Here, the Code
specifically provides that the same is required to be
signed by the complainant as well as the witnesses
making the statement. Section 200 of the Code reads
thus:

"200. Examination of complainant.- A Magistrate
taking cognizance of an offence on complaint shall
examine upon oath the complainant and the
witnesses present, if any, and the substance of
such examination shall be reduced to writing and
shall be signed by the complainant and the
witnesses, and also by the Magistrate:

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Provided that, when the complaint is made in
writing, the Magistrate need not examine the
complainant and the witnesses-

(a) if a public servant acting or purporting to
act in the discharge of his official duties or a
Court has made the complaint; or

(b) if the Magistrate makes over the case for
inquiry or trial to another Magistrate under
section 192:

Provided further that if the Magistrate makes
over the case to another Magistrate under
section 192 after examining the complainant
and the witnesses, the latter Magistrate need
not re-examine them."

Mere presentation of the complaint is only the first
step and no action can be taken unless the process
of verification is complete and, thereafter, the
Magistrate has to consider the statement on oath,
that is, the verification statement under Section
200 and the statement of any witness, and the
Magistrate has to decide whether there is sufficient
ground to proceed. It is also relevant to note
Section 203 of the Code which reads as follows:

"203. Dismissal of complaint.- If, after
considering the statements on oath (if any) of
the complainant and of the witnesses and the
result of the inquiry or investigation (if any)
under section 202, the Magistrate is of
opinion that there is no sufficient ground for
proceeding, he shall dismiss the complaint,
and in every such case he shall briefly record
his reasons for so doing."

It is also clear that a person could be called upon to
answer a charge of false complaint/perjury only on
such verification statement and not mere on the
presentation of the complaint as the same is not on
oath and, therefore, need to obtain the signature of
the person. Apart from the above section, the
legislative intent becomes clear that "writing" does

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not pre-suppose that the same has to be signed.
Various sections in the Code when contrasted with
Section 2(d) clarify that the legislature was clearly
of the intent that a written complaint need not be
signed. For example, Sections 61, 70, 154, 164 and
281 are reproduced below:

"61. Form of summons.

Every summons issued by a court under this Code
shall be in writing, in duplicate, signed by the
presiding officer of such court or by such other
officer as the High Court may, from time to time,
by rule direct, and shall bear the seal of the court.

* * *

70. Form of warrant of arrest and duration.

(1) Every warrant of arrest issued by a court under
this Code shall be in writing, signed by the
presiding officer of such court and shall bear the
sea] of the court.

(2) Every such warrant shall remain in force until it
is cancelled by the Court which issued it, or until it
is executed.

* * *

154. Information in cognizable cases.

(1) Every information relating to the commission of
a cognizable offence, if given orally to an officer in
charge of a police station, shall be reduced to
writing by him or under his direction, and be read
over to the informant; and every such information,
whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it,
and the substance thereof shall be entered in a
book to be kept by such officer in such form as the
State Government may prescribe in this behalf.

* * *

164. Recording of confessions and statements.

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xxx (4) Any such confession shall be recorded in
the manner provided in section 281 for recording
the examination of an accused person and shall be
signed by the person making the confession; and
the Magistrate shall make a memorandum at the
foot of such record to the following effect-

* * *

281. Record of examination of accused.

[1] Whenever the accused is examined by a
Metropolitan Magistrate, the Magistrate shall
make a memorandum of the substance of the
examination of the accused in the language of
the court and such memorandum shall be
signed by the Magistrate and shall form part of
the record....."

A perusal of the above shows that the legislature
has made it clear that wherever it required a
written document to be signed, it should be
mentioned specifically in the section itself, which is
missing both from Section 2(d) as well as Section

142."

[j] That in the case of Krishna District Co-operative
Marketing Society Limited, Vijayawada v.
N.V.Purnachandra Rao Ors. [(1987)4 SCC 99] the Apex
Court while dealing the conflict between special provisions of
an earlier Act and general provision of a later law and by
referring Maxwell on Interpretation of Statutes wherein case
of Earl of Selborne L.C. in The Vera Cruz [(1884)10 AC 59]
was discussed, and in paragraphs 8, 9, 10 and 11 held as
under:

"8 We shall now proceed to consider the merits of the

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contention that the State Act which is a later Act and
which has received the assent of the President should
prevail over the provisions of Chapter V-A of the Central
Act. The above contention is based on Article 254(2) of
the Constitution and the argument is that the provisions
of section 40 which deal with termination of service, in a
shop or an establishment contained in the State Act
which is enacted by the State Legislature in exercise of
its powers under Entry 22 of List III of the Seventh
Schedule to the Constitution being repugnant to the
provisions contained in Chapter V-A of the Central Act
which is an earlier law also traceable to Entry 22 of the
List II1 of the Seventh Schedule to the Constitution
should prevail as the assent of the President has been
given to the State Act. It is true that the State Act is a
later Act and it has received the assent of the President
but the question is whether there is any such
repugnancy between the two laws as to make the
provisions of the Central Act relating to retrenchment
ineffective in the State of Andhra Pradesh. It is seen that
the State Act does not contain any express provision
making the provisions relating to retrenchment in the
Central Act ineffective insofar as Andhra Pradesh is
concerned. We shall then have to consider whether there
is any implied repugnancy between the two laws.
Chapter V-A of the Central Act which is the earlier law
deals with cases arising out of lay-off and retrenchment.
Section 25J of the Central Act deals with the effect of the
provisions of Chapter V-A on other laws inconsistent
with that Chapter. Sub-section (2) of section 25J is quite
emphatic about the supremacy of the provisions relating
to the rights and liabilities arising out of lay-off and
retrenchment. These are special provisions and they do
not apply to all kinds of termination of services. Section
40 of the State Act deals generally with termination of
service which may be the result of misconduct, closure,
transfer of establishment etc. If there is a conflict
between the special provisions contained in an earlier
law dealing with retrenchment and the general
provisions contained in a later law generally dealing
with terminations of service, the existence of
repugnancy between the two laws cannot be easily
presumed. In Maxwell on the Interpretation of Statutes,
(12th Edn. ) at page 196 it is observed thus:

"Now if anything be certain it is this, "said the Earl

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of Selborne L.C. in The Vera Cruz, (1884) 10 App.
Cas, 59 at p. 68 "that where there are general
words in a later Act capable of reasonable and
sensible application without extending them to
subjects specially dealt with by earlier legislation,
you are not to hold that earlier and special
legislation indirectly repealed, altered, or
derogated from merely by force of such general
words, without any indication of a particular
intention to do so." In a later case, Viscount
Haldane said: "We are bound ....... to apply a rule of
construction which has been repeatedly laid down
and is firmly established. It is that wherever
Parliament in an earlier statute has directed its
attention to an individual case and has made
provision for it unambiguously, there arises a
presumption that if in a subsequent statute the
Legislature lays down a general principle, that
general principle is not to be taken as meant to rip
up what the Legislature had before provided for
individually, unless an intention to do so is
specially declared. A merely general rule is not
enough even though by its terms it is stated so
widely that it would, taken by itself, cover special
cases of the kind I have referred to."

9 We respectfully agree with the rule of construction
expounded in the above passage. By enacting section
25J(2) Parliament, perhaps, intended that the rights and
liabilities arising out of lay-off and retrenchment should
be uniform throughout India where the Central Act was
in force and did not wish that the State should have their
own laws inconsistent with the Central law. If really the
State Legislature intended that it should have a law of
its own regarding the rights and liabilities arising out of
retrenchment it would have expressly provided for it and
submitted the Bill for the assent of the President. The
State Legislature has not done so in this case. Section
40 of the State Act deals with terminations of service
generally. In the above situation we cannot agree with
the contention based on Article 254(2) of the
Constitution since it is not made out that there is any
implied repugnancy between the Central law and the
State law.

10 The result of the above discussion is that if the

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employees are 'workmen' and the management is an
'industry' as defined in the Central Act and the action
taken by the management amounts to 'retrenchment'
then the rights and liabilities of the parties are governed
by the provisions of Chapter V-A of the Central Act and
the said rights and liabilities may be adjudicated upon
and enforced in proceedings before the authorities
under section 41(1) and section 41(3) of the State Act.

11 We may incidentally observe that the Central
Act itself should be suitably amended making it possible
to an individual workman to seek redress in an
appropriate forum regarding illegal termination of
service which may take the form of dismissal, discharge,
retrenchment etc. or modification of punishment
imposed in a domestic enquiry. An amendment of
the Central Act introducing such provisions will make
the law simpler and also will reduce the delay in the
adjudication of industrial disputes. Many learned
authors of books on industrial law have also been urging
for such an amendment. The State Act in the instant
case has to some extent met the above demand by
enacting section 41 providing for a machinery for
settling disputes arising out of termination of service
which can be resorted to by an individual work- man. In
this connection we have one more suggestion to make.
The nation remembers with gratitude the services
rendered by the former Labour Appellate Tribunal which
was manned by some of our eminent Judges by evolving
great legal principles in the field of labour law, in
particular with regard to domestic enquiry, bonus,
gratuity, fair wages, industrial adjudication etc. The
Industrial Disputes (Appellate Tribunal) Act, 1950 which
provided for an all-India appellate body with powers to
hear appeals against the orders and awards of Industrial
Tribunals and Labour Courts in India was repealed in
haste. If it had continued by now the labour
jurisprudence would have developed perhaps on much
more satisfactory lines than what it is today. There is a
great need today to revive and to bring into existence an
all- India Labour Appellate Tribunal with powers to hear
appeals against the decisions of all Labour Courts,
Industrial Tribunals and even of authorities constituted
under several labour laws enacted by the States so that
a body of uniform and sound principles of Labour law
may be evolved for the benefit of both industry and

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labour throughout India. Such an appellate authority can
become a very efficient body on account of
specialisation. There is a demand for the revival of such
an appellate body even from some workers'
organisations. This suggestion is worth considering. All
this we are saying because we sincerely feel that
the Central Act passed forty years ago needs a second
look and requires a comprehensive amendment."

[k] In the case of K.T.Plantation Pvt. Ltd. Anr. V.
State of Karnataka [AIR 2011 SC 3430], the Apex Court
held in para 66 that when the repugnancy between the
Central and State Legislations is pleaded the court has to first
examine whether the two legislations cover or relate to the
same subject matter and the test for determining the same is
to find out the dominant intention of the two legislations and
if the dominant intention of the two legislations is different,
they cover different subject matter then merely because the
two legislations refer to some allied or cognate subjects, they
do not cover the same field. That a provision in one
legislation to give effect to its dominant purpose may
incidentally be on the same subject as covered by the
provision of the other legislation, but such partial coverage of
the same area in a different context and to achieve a different
purpose does not bring about the repugnancy which is
intended to be covered by Article 254(2). In other word, both
the legislations must be specifically on the same subject to
attract Article 254.

The Apex Court also considered Article 300A of the
Constitution of India and term "eminent domain" (jus or
dominium eminens) in subsequent paras and also public
purpose vis-à-vis compensation. In the context of Article

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31A(1)(1) of the Constitution of India and arguments dealing
with term "eminent domain", the Apex Court held in paras 84
to 134 as under:

"EMINENT DOMAIN

84. Hugo Grotius (a Dutch Jurist who also developed
Natural Law) is credited with the invention of the term
"eminent domain" (jus or dominium eminens) which
implies that public rights always overlap with private
rights to property, and in the case of public utility, public
rights take precedence. Grotius sets two conditions on
the exercise of the power of eminent domain: the first
requisite is public advantage and then compensation
from the public funds be made, if possible, to the one
who has lost his right. Application of the above principle
varies from countries to countries. Germany, America
and Australian Constitutions bar uncompensated
takings. Canada's constitution, however, does not
contain the equivalent of the taking clause, and eminent
domain is solely a matter of statute law, the same is the
situation in United Kingdom which does not have a
written constitution as also now in India after the 44th
Constitutional Amendment.

85. Canada does not have an equivalent to the Fifth
Amendment taking clause of the U.S. Constitution and
the federal or provincial governments are under any
constitutional obligation to pay compensation for
expropriated property. Section 1(a) of the Canadian Bill
of Rights does state that, "The right of the individual to
life, liberty, security of a person and enjoyment of
property and the right not to be deprived thereof except
by due process of law."

86. In Australia, Section 51 (xxxi) of the Constitution
permits the federal government to make laws with
respect to "the acquisition of property on just terms from
any State or persons for any purpose in respect of which
the Parliament has powers to make laws."

87. Protocol to the European Convention on Human
Rights and Fundamental Freedom, Article 1 provides

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that every natural or legal person is entitled to the
peaceful enjoyment of his possession and no one shall be
deprived of his possessions except in public interest and
subject to the conditions provided by law and by the
several principles of International law.

88. Fifth Amendment of the U.S. Constitution says that
the government shall not take private property for public
use without paying just compensation. This provision
referred to as the eminent domain, or taking clause has
generated an enormous amount of case laws in the
United States of America.

89. The US Supreme Court in Hawaii Housing
Authority v. Midkiff, 467 US 229 (1984) allowed the use
of eminent domain to transfer land from lessor to
lessees. In that ruling the court held the government
does not itself have the use the property to legitimate
taking, it is a takings purpose and not its mechanics that
must pass the muster under the public use clause. The
US Supreme Court later revisited the question on what
constitute public use in Kelo v. City of New London (545
US 469 (2005). In that case the Court held that a plan of
economic development, that would primarily benefit a
major pharmaceutical company, which incidentally
benefited the public in the nature of increased
employment opportunities and increased tax benefits
was a `public use'. The Court rejected the arguments
that takings of this kind, the Court should require a
`reasonable certainty' that the respective public benefits
will actually accrue.

90. Eminent domain is distinguishable alike from the
police power, by which restriction are imposed on
private property in the public interest, e.g. in connection
with health, sanitation, zoning regulation, urban
planning and so on from the power of taxation, by which
the owner of private property is compelled to contribute
a portion of it for the public purposes and from the war-
power, involving the destruction of private property in
the course of military operations. The police power
fetters rights of property while eminent domain takes
them away. Power of taxation does not necessarily
involve a taking of specific property for public purposes,
though analogous to eminent domain as regards the
purposes to which the contribution of the taxpayer is to

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be applied. Further, there are several significant
differences between regulatory exercises of the police
powers and eminent domain of deprivation of property.
Regulation does not acquire or appropriate the property
for the State, which appropriation does and regulation is
imposed severally and individually, while expropriation
applies to an individual or a group of owners of
properties.

91 The question whether the "element of
compensation" is necessarily involved in the idea of
eminent domain arose much controversy. According to
one school of thought (See Lewis, Eminent Domain, 3rd
Edition, 1909) opined that this question must be
answered in the negative, but another view (See
Randolph Eminent Domain in the United States (Boston
1894 [AWR]), the claim for compensation is an inherent
attribute of the concept of eminent domain. Professor
Thayer (cases on Constitutional law Vol 1.953), however,
took a middle view according to which the concept of
eminent domain springs from the necessity of the state,
while the obligation to reimburse rests upon the natural
rights of individuals. Right to claim compensation, some
eminent authors expressed the view, is thus not a
component part of the powers to deprive a person of his
property but may arise, but it is not as if, the former
cannot exist without the other. Relationship between
Public Purpose and Compensation is that of "substance
and shadow". Above theoretical aspects of the doctrine
have been highlighted only to show the reasons, for the
inclusion of the principle of eminent domain in the
deleted Article 31(2) and in the present Article
30(1A) and in the 2nd proviso of Article 31A of our
Constitution and its apparent exclusion from Article
300A.

92 Our Constitution makers were greatly influenced
by the Western doctrine of eminent domain when they
drafted the Indian Constitution and incorporated the
right to property as a Fundamental Right in Article 19(1)

(f), and the element of public purpose and compensation
in Articles 31(2). Of late, it was felt that some of the
principles laid down in the Directive Principles of State
Policy, which had its influence in the governance of the
country, would not be achieved if those articles were
literally interpreted and applied. The Directive Principles

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of the state policy lay down the fundamental principles
for the governance of the country, and through those
principles, the state is directed to secure that the
ownership and control of the material resources of the
community are so distributed as best to sub-serve the
common good and that the operation of the economic
system does not result in the concentration of wealth
and means of production to the common detriment.
Further, it was also noticed that the fundamental rights
are not absolute but subject to law of reasonable
restrictions in the interest of the general public to
achieve the above objectives specially to eliminate
Zamindari system.

93 While examining the scope of the Bihar Land
Reforms Act, 1950 conflicting views were expressed by
the Judges with regard to the meaning and content
of Article 19(1)(f) and Article 31 as reflected in Sir
Kameshwar Singh's case (supra). Suffice it to say that
the Parliament felt that the views expressed by the
judges on the scope of Articles 19(1)(f) and 31 might
come as a stumbling block in implementing the various
welfare legislations which led to the First Constitutional
Amendment 1951 introducing Articles 31A and 31B in
the Constitution.

94 Article 31A enabled the legislature to enact laws to
acquire estates which also permitted the State in taking
over of property for a limited period either in the `public
interest' or to `secure the proper management of the
property', amalgamate properties, and extinguish or
modify the rights of managers, managing agents,
directors, stockholders etc. Article provides that such
laws cannot be declared void on the grounds that they
are inconsistent with Articles 14 and 19. Article
31B protected the various lands reform laws enacted by
both the Parliament and the State Legislatures by
stating that none of these laws, which are to be listed in
the Ninth Schedule, can become void on the ground that
they violated any fundamental right.

95 This Court in a series of decisions viz. in State
of West Bengal v. Bella Banerjee Others AIR
1954 SC 170 and State of West Bengal v. Subodh
Gopal Bose AIR 1954 SC 92 took the view
that Article 31, clauses (1) and (2) provided for the

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doctrine of eminent domain and under clause (2) a
person must be deemed to be deprived of his
property if he was "substantially dispossessed" or
his right to use and enjoy the property was
"seriously impaired" by the impugned law. The
Court held that under Article 31(1) the State could not
make a law depriving a person of his property without
complying with the provisions of Article 31(2). In Bella
Banerjee's case (supra), this Court held that the
legislature has the freedom to lay down principles which
govern the determination of the amount to be given to
the owners of the property appropriated, but the Court
can always, while interpreting Article 31(1) and Article
31(2), examine whether the amount of compensation
paid is just equivalent to what the owner had been
deprived of.

96 The Parliament, following the above judgment,
brought in the Fourth Amendment Act of 1955 and
amended clause (2) of Article 31 and inserted clause (2-
A) to Article 31. The effect of the amendment is that
clause (2) deals with acquisition or requisition as defined
in clause (2-A) and clause (1) covers deprivation of a
person's property by the state otherwise than by
acquisition or requisition. The amendment enabled the
State to deprive a person of his property by law. Under
amended clause (2), the property of a citizen could be
acquired or requisitioned by law which provides for
compensation for the property so acquired or
requisitioned and either fixes the amount of
compensation or specifies the principles on which and
the manner in which the compensation is to be
determined. However, it was also provided that no such
law could be called in question in any court on the
ground that the compensation provided by that law was
not adequate.

97. This Court in Kavalappara Kottarathil Kochuni's case
(supra) held that Articles 31(1) and (2) are different
fundamental rights and that the expression `law"
in Article 31(1) shall be a valid law and that it cannot be
a valid law, unless it imposes a reasonable restriction in
public interest within the meaning of Article 19(5) and
therefore be justiciable.

98. The Constitution was again amended by the

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Seventeenth Amendment Act of 1964, by which the State
extended the scope of Article 31A and Ninth Schedule to
protect certain agrarian reforms enacted by the Kerala
and Madras States and Jagir, Inam, muafi or any other
grant, janmam, ryotwari etc. were included within the
meaning of "estate". It also added the 2nd proviso to
clause (1) to protect a person of being deprived of land
less than the relevant land ceiling limits held by him for
personal cultivation, except on payment of full market
value thereof by way of compensation.

99. This Court in P. Vajravelu Mudaliar's case (supra)
examined the scope of the Land Acquisition (Madras
Amendment) Act 1961 by which the lands were acquired
for the purpose of building houses which move was
challenged under Articles 31 and 14. The Court held that
if the compensation fixed was illusory or the principles
prescribed were irrelevant to the value of the property
at or about the time of acquisition, it could be said that
the Legislature had committed a fraud on power and
therefore the law was inadequate. Speaking for the
Bench, Justice Subha Rao stated that "If the legislature,
through its ex facie purports to provide for
compensation or indicates the principles for ascertaining
the same, but in effect and substance takes away a
property without paying compensation for it, it will be
exercising power it does not possess. If the Legislature
makes a law for acquiring a property by providing for an
illusory compensation or by indicating the principles for
ascertaining the compensation which do not relate to the
property acquired or to the value of such property at or
within a reasonable proximity of the date of acquisition
or the principles are so designed and so arbitrary that
they do not provide for compensation at all, one can
easily hold that the legislature made the law in fraud of
its powers." Justice Subha Rao reiterated his view
in Union of India v. Metal Corporation of India Ltd.
Another AIR 1967 SC 637.

100. In Shantilal Mangaldas's case (supra), the validity
of Bombay Town Planning Act 1958 was challenged
before this Court on the ground that the owner was to be
given market value of land at date of declaration of
scheme, which was not the just equivalent of the
property acquired, the Court held that after the Fourth
Amendment resulting in the changes to Article 31(2) the

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question of `adequacy of compensation' could not be
entertained. Justice Hidayatullah stated that the stance
taken in the previous case by Justice Subha Rao as
"obiter and not binding". The validity of the Banking
Companies (Acquisition and Transfer of Undertakings)
Act 1969 came up for consideration before the eleven
judges Bench of this Court in Rustom Cowasjee Cooper
v. Union of India (1970) 2 SCC 298. The Act, it was
pointed out, did lay down principles for determination
and payment of compensation to the banks, which was to
be paid for in form of bonds, securities etc., and
compensation would not fulfill the requirement of Article
31(2). A majority of the judges accepted that view and
held that both before and after the amendment to Article
31(2) there was a right to compensation and by giving
illusory compensation the constitutional guarantee to
provide compensation for an acquisition was not
complied with. The Court held that the Constitution
guarantees a right to compensation - an equivalent in
money of the property compulsorily acquired which is
the basic guarantee and, therefore, the law must provide
compensation, and for determining compensation
relevant principles must be specified; if the principles
are not relevant the ultimate value determined is not
compensation.

101. The validity of Articles 19(1)(f) and (g) was also the
subject matter ofI.C. Golaknath and Others v. State of
Punjab, AIR 1967 SC 1643. In that case, a large portion
of the lands of Golak Nath family was declared surplus
under the Punjab Security of Land Tenures Act 1953.
They challenged the act on the grounds that it denied
them their Constitutional Rights to acquire and hold
property and practice any profession. Validity of Articles
19(1)(f) and (g), the 17th Amendment, the 1st
Amendment and the 4th Amendment were also
questioned. Chief Justice Subha Rao speaking for the
majority said that the Parliament could not take away or
abridge the Fundamental Rights and opined that those
rights form `basic structure' of the Constitution and any
amendment to the Constitution can be made to preserve
them, not to annihilate.

102. The Parliament enacted the (24th Amendment)
Act 1971, by which the Parliament restored to the
amending power of the Parliament and also extended the

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scope of Article 368 which authorised the Parliament to
amend any part of the Constitution.

103. Parliament then brought in the 25th Amendment
Act, 1971 by which Article 31(2) was amended by which
private property could be acquired on payment of an
"amount" instead of "compensation". A new Article
31(C)was also inserted stating that "no law giving effect
to the policy of the State towards acquiring the
principles specified in clause (b) or clause (c) of Article
39 shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the
rights conferred by Article 14,Article 19 or Article
31; and no law containing a declaration that it is for
giving effect to such policy shall be called in question in
any court on the ground that it does not give effect to
such policy.

104. The constitutionality of the above amendments was
also the subject matter in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala Another (1973) 4 SCC 225,
which overruled the principles laid down in Gokalnath's
case (supra) and held that a Constitutional amendment
could not alter the basic structure of the Constitution,
and hence Article 19(1)(f) was not considered to be the
basic structure of the Constitution, as later explained
in Indira Nehru Gandhi v. Raj Narain (1975) Supp. SCC

1.

105. We are in these cases, primarily concerned with the
scope of the Forty Fourth Amendment 1978, which
deleted Article 19(1)(f) and Article 31from the
Constitution of India and introduced Article 300A, and
its impact on the rights of persons, who are deprived of
their properties. We have extensively dealt with the
scope of Articles 19(1)(f) and Article 31 as interpreted in
the various decisions of this Court so as to examine the
scope and content of Article 300A and the circumstances
which led to its introduction. The Forty Fourth
Amendment Act, inserted in Part XII, a new chapter:
"Chapter IV - Right to Property and inserted Article
300A, which reads as follows:-

"No person shall be deprived of property save by
authority of law."

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106. Reference to the Statement of Objects and Reasons
of the 44th Amendment in this connection may be
apposite. Paragraphs 3, 4 and 5 of the Statement of
Objects and Reasons reads as follows:

"3. In view of the special position sought to be
given to fundamental rights, the right to property,
which has been the occasion for more than one
Amendment of the Constitution, would cease to be
a fundamental right and become only a legal right.
Necessary amendments for this purpose are being
made to Article 19 and Article 31 is being deleted.
It would, however, be ensured that the removal of
property from the list of fundamental rights would
not affect the right of minorities to establish and
administer educational institutions of their choice.

4. Similarly, the right of persons holding land for
personal cultivation and within the ceiling limit to
receive compensation at the market value would
not be affected.

5. Property, while ceasing to be a fundamental
right, would, however, be given express
recognition as a legal right, provision being made
that no person shall be deprived of his property
save in accordance with law."

107 In Jilubhai Nanbhai Khachar Others v. State of
Gujarat Another(1995) Supp. 1 SC 596, this Court
examined whether Section 69-A, introduced by the
Gujarat Amendment Act 8 of 1982 in the Bombay Land
Revenue Code which dealt with vesting mines, minerals
and quarries in lands held by persons including
Girasdars and Barkhalidars in the State violated Article
300A of the Constitution. The Court held that the
`property' in Article 300A includes mines, minerals and
quarries and deprivation thereof having been made by
authority of law was held to be valid and not violative
of Article 300A.

108. Article 300A, when examined in the light of the
circumstances under which it was inserted, would
reveal the following changes:

1. Right to acquire, hold and dispose of property

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has ceased to be a fundamental right under the
Constitution of India.

2. Legislature can deprive a person of his property
only by authority of law.

3. Right to acquire, hold and dispose of property is
not a basic feature of the Constitution, but only a
Constitutional right.

4. Right to Property, since no more a fundamental
right, the jurisdiction of the Supreme Court
under Article 32 cannot be generally invoked,
aggrieved person has to approach the High Court
under Article 226 of the Constitution.

109. Arguments have been advanced before us stating
that the concept of eminent domain and its key
components be read into Article 300A and if a statute
deprives a person of his property unauthorizedly,
without adequate compensation, then the statute is
liable to be challenged as violative of Articles 14, 19 and
21 and on the principle of rule of law, which is the basic
structure of our Constitution. Further it was also
contended that the interpretation given by this Court on
the scope of Article 31(1) and (2) in various judgments
be not ignored while examining the meaning and content
of Article 300A.

110. Article 300A proclaims that no person can be
deprived of his property save by authority of law,
meaning thereby that a person cannot be deprived of his
property merely by an executive fiat, without any
specific legal authority or without the support of law
made by a competent legislature. The expression
`Property' in Art.300A confined not to land alone, it
includes intangibles like copyrights and other
intellectual property and embraces every possible
interest recognised by law. This Court in State of W. B.
Others v. Vishnunarayan Associates (P) Ltd
Another (2002) 4 SCC 134, while examining the
provisions of the West Bengal Great Eastern Hotel
(Acquisition of Undertaking) Act, 1980, held in the
context of Article 300A that the State or executive
offices cannot interfere with the right of others unless
they can point out the specific provisions of law which
authorises their rights. Article 300A, therefore, protects
private property against executive action. But the
question that looms large is as to what extent their

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rights will be protected when they are sought to be
illegally deprived of their properties on the strength of a
legislation. Further, it was also argued that the twin
requirements of `public purpose' and `compensation' in
case of deprivation of property are inherent and
essential elements or ingredients, or "inseparable
concomitants" of the power of eminent domain and,
therefore, of entry 42, List III, as well and, hence, would
apply when the validity of a statute is in question. On the
other hand, it was the contention of the State that since
the Constitution consciously omitted Article 19(1)(f),
Articles 31(1) and 31(2), the intention of the Parliament
was to do away the doctrine of eminent domain which
highlights the principles of public purpose and
compensation.

111 Seervai in his celebrated book `Constitutional Law
of India' (Edn. IV), spent a whole Chapter XIV on the
44th Amendment, while dealing with Article 300A. In
paragraph 15.2 (pages 1157-1158) the author opined
that confiscation of property of innocent people for the
benefit of private persons is a kind of confiscation
unknown to our law and whatever meaning the word
"acquisition" may have does not cover "confiscation" for,
to confiscate means "to appropriate to the public
treasury (by way of penalty)". Consequently, the law
taking private property for a public purpose without
compensation would fall outside Entry 42 List III and
cannot be supported by another Entry in List III.
Requirements of a public purpose and the payment of
compensation according to the learned author be read
into Entry 42 List III. Further the learned author has
also opined that the repeal of Article 19(1)

(f) and 31(2) could have repercussions on other
fundamental rights or other provisions which are to be
regarded as part of the basic structure and also stated
that notwithstanding the repeal of Article 31(2), the
word "compensation" or the concept thereof is still
retained in Article 30(1A) and in the second proviso
to Article 31A(1)meaning thereby that payment of
compensation is a condition of legislative power in Entry
42 List III.

112. Learned senior counsel Shri T.R. Andhyarujina, also
referred to the opinion expressed by another learned
author Prof. P.K. Tripathi, in his article "Right to

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Property after 44th Amendment - Better Protected than
Ever Before" (reported in AIR 1980 J pg. 49-52). Learned
author expressed the opinion and the right of the
individual to receive compensation when his property is
acquired or requisitioned by the State, continues to be
available in the form of an implied condition of the
power of the State to legislate on "acquisition or
requisition of property" while all the exceptions and
limitations set up against and around it in Article 31, 31A
and 31B have disappeared. Learned author opined
that Article 300Awill require obviously, that the law
must be a valid law and no law of acquisition or
requisitioning can be valid unless the acquisition or
requisition is for a public purpose, unless there is
provision in law for paying compensation, will continue
to have a meaning given to it, by Bela Banerjee's case
(supra).

113. Learned author, Shri S.B. Sathe, in his article
"Right to Property after the 44th Amendment" (AIR 1980
Journal 97), to some extent, endorsed the view of Prof.
Tripathi and opined that the 44th amendment has
increased the scope of judicial review in respect of right
to property. Learned author has stated although Article
300A says that no one shall be deprived of his property
save by authority of law, there is no reason to expect
that this provision would protect private property only
against executive action. Learned author also expresses
the wish that Article 21 may provide viable check upon
Article 300A.

114. Durga Das Basu in his book "Shorter Constitution of
India", 13th Edition, dealt with Article 300A in Chapter
IV wherein the learned author expressed some
reservation about the views expressed by Seervai, as
well as Prof. Tripathi Learned author expressed the
view, that after the 44th amendment Act there is no
express provision in the Constitution outside the two
cases specified under Article 30(1A) and the second
proviso to 31(1A) requiring the State to pay
compensation to an expropriated owner. Learned author
also expressed the opinion that no reliance could be
placed on the legislative Entry 42 of List III so as to
claim compensation on the touchstone of fundamental
rights since the entry in a legislative list does not confer
any legislative power but only enumerates fields of

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legislation. Learned counsel on the either side, apart
from other contentions, highlighted the above views
expressed by the learned authors to urge their
respective contentions.

115. Principles of eminent domain, as such, is not seen
incorporated in Article 300A, as we see, in Article
30(1A), as well as in the 2nd proviso to Article 31A(1)
though we can infer those principles in Article
300A.Provision for payment of compensation has been
specifically incorporated in Article 30(1A) as well as in
the 2nd proviso to Article 31A(1) for achieving specific
objectives. Constitution's 44th Amendment Act, 1978
while omitting Article 31 brought in a substantive
provision Clause (1A) to Article 30. Resultantly, though
no individual or even educational institution belonging to
majority community shall have any fundamental right to
compensation in case of compulsory acquisition of his
property by the State, an educational institution
belonging to a minority community shall have such
fundamental right to claim compensation in case State
enacts a law providing for compulsory acquisition of any
property of an educational institution established and
administered by a minority community. Further, the
second proviso to Article 31A(1) prohibits the Legislature
from making a law which does not contain a provision
for payment of compensation at a rate not less than the
market value which follows that a law which does not
contain such provision shall be invalid and the
acquisition proceedings would be rendered void.

116. Looking at the history of the various constitutional
amendments, judicial pronouncements and the
statement of objects and reasons contained in the 44th
Amendment Bill which led to the 44th Amendment Act we
have no doubt that the intention of the Parliament was to
do away with the fundamental right to acquire, hold and
dispose of the property. But the question is whether the
principles of eminent domain are completely obliterated
when a person is deprived of his property by the
authority of law under Article 300A of the Constitution.

PUBLIC PURPOSE

117. Deprivation of property within the meaning of

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Art.300A, generally speaking, must take place for public
purpose or public interest. The concept of eminent
domain which applies when a person is deprived of his
property postulates that the purpose must be primarily
public and not primarily of private interest and merely
incidentally beneficial to the public. Any law, which
deprives a person of his private property for private
interest, will be unlawful and unfair and undermines the
rule of law and can be subjected to judicial review. But
the question as to whether the purpose is primarily
public or private, has to be decided by the legislature,
which of course should be made known. The concept of
public purpose has been given fairly expansive meaning
which has to be justified upon the purpose and object of
statute and the policy of the legislation. Public purpose
is, therefore, a condition precedent, for invoking Article
300A.

COMPENSATION

118. We have found that the requirement of public
purpose is invariably the rule for depriving a person of
his property, violation of which is amenable to judicial
review. Let us now examine whether the requirement of
payment of compensation is the rule after the deletion of
Article 31(2).Payment of compensation amount is a
constitutional requirement under Article 30(1A) and
under the 2nd proviso to Article 31A(1), unlike Article
300A. After the 44th Amendment Act, 1978, the
constitutional obligation to pay compensation to a
person who is deprived of his property primarily
depends upon the terms of the statute and the legislative
policy. Article 300A, however, does not prohibit the
payment of just compensation when a person is deprived
of his property, but the question is whether a person is
entitled to get compensation, as a matter of right, in the
absence of any stipulation in the statute, depriving him
of his property.

119. Before answering those questions, let us examine
whether the right to claim compensation on deprivation
of one's property can be traced to Entry 42 List III. The
7th Constitutional Amendment Act, 1956 deleted Entry
33 List I, Entry 36 List II and reworded Entry 42 List III
relating to "acquisition and requisitioning of property". It

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was urged that the above words be read with the
requirements of public purpose and compensation.
Reference was placed on the following judgment of this
Court in support of that contention. In State of Madras v.
Gannon Dunkerley Co. (Madras) Ltd . (1959) SCR 379 at 413),
this Court considered Entry 48 List II of the Government
of India Act, 1935, "tax on sales of goods", in accordance
with the established legal sense of the word "sale",
which had acquired a definite precise sense and held
that the legislature must have intended the "sale",
should be understood in that sense. But we fail to see
why we trace the meaning of a constitutional provision
when the only safe and correct way of construing the
statute is to apply the plain meaning of the words. Entry
42 List III has used the words "acquisition" and
"requisitioning", but Article 300A has used the
expression "deprivation", though the word deprived or
deprivation takes in its fold "acquisition" and
"requisitioning", the initial presumption is in favour of
the literal meaning since the Parliament is taken to
mean as it says.

120. A Constitution Bench of this Court in Hoechst
Pharmaceuticals Ltd.'s case (supra), held that the
various entries in List III are not "powers" of Legislation
but "fields" of Legislation. Later, a Constitution Bench of
this Court in State of West Bengal Another v. Kesoram
Industries Ltd. Others AIR 2005 SC 1646, held that
Article 245 of the Constitution is the fountain source of
legislative power. It provides that subject to the
provisions of this Constitution, the Parliament may make
laws for the whole or any part of the territory of India,
and the Legislature of a State may make laws for the
whole or any part of the State. The legislative field
between the Parliament and the Legislature of any State
is divided by Article 246 of the Constitution. Parliament
has exclusive power to make laws with respect to any of
the matters enumerated in List I in Seventh Schedule,
called the Union List and subject to the said power of the
Parliament, the Legislature of any State has power to
make laws with respect to any of the matters
enumerated in List III, called the Concurrent List.
Subject to the above, the Legislature of any State
has exclusive power to make laws with respect to
any of the matters enumerated in List II, called the

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State List. Under Article 248, the exclusive power
of the Parliament to make laws extends to any
matter not enumerated in any Concurrent List or
State List.

121. We find no apparent conflict with the words
used in Entry 42 List III so as to infer that the
payment of compensation is inbuilt or inherent
either in the words "acquisition and requisitioning"
under Entry 42 List III. Right to claim
compensation is, therefore, cannot be read into the
legislative Entry 42 List III. Requirement of public
purpose, for deprivation of a person of his property
under Article 300A, is a pre-condition, but no
compensation or nil compensation or its
illusiveness has to be justified by the state on
judicially justiciable standards. Measures designed
to achieve greater social justice, may call for lesser
compensation and such a limitation by itself will
not make legislation invalid or unconstitutional or
confiscatory. In other words, the right to claim
compensation or the obligation to pay, though not
expressly included in Article 300A, it can be
inferred in that Article and it is for the State to
justify its stand on justifiable grounds which may
depend upon the legislative policy, object and
purpose of the statute and host of other factors.

122. Article 300A would be equally violated if the
provisions of law authorizing deprivation of
property have not been complied with. While
enacting Article 300A Parliament has only
borrowed Article 31(1) [the "Rule of law" doctrine]
and not Article 31(2) [which had embodied the
doctrine of Eminent Domain]. Article 300A enables
the State to put restrictions on the right to
property by law. That law has to be reasonable. It
must comply with other provisions of the
Constitution. The limitation or restriction should
not be arbitrary or excessive or what is beyond
what is required in public interest. The limitation
or restriction must not be disproportionate to the
situation or excessive. The legislation providing for
deprivation of property under Article 300A must be
"just, fair and reasonable" as understood in terms

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of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in
each case, courts will have to examine the scheme
of the impugned Act, its object, purpose as also the
question whether payment of nil compensation or
nominal compensation would make the impugned
law unjust, unfair or unreasonable in terms of
other provisions of the Constitution as indicated
above. At this stage, we may clarify that there is a
difference between "no" compensation and "nil"
compensation. A law seeking to acquire private
property for public purpose cannot say that "no
compensation shall be paid". However, there could
be a law awarding "nil" compensation in cases
where the State undertakes to discharge the
liabilities charged on the property under
acquisition and onus is on the government to
establish validity of such law. In the latter case, the
court in exercise of judicial review will test such a
law keeping in mind the above parameters.

123. Right to property no more remains an overarching
guarantee in our Constitution, then is it the law, that
such a legislation enacted under the authority of law as
provided in Article 300A is immune from challenge
before a Constitutional Court for violation of Articles 14,
21 or the overarching principle of Rule of Law, a basic
feature of our Constitution, especially when such a right
is not specifically incorporated in Article 300A, unlike
Article 30(1A) and the 2nd proviso to Article 31A.

124. Article 31A was inserted by the 1st Amendment Act,
1951 to protect the abolition of Jamindari Abolition Laws
and also the other types of social, welfare and regulatory
legislations effecting private property. The right to
challenge laws enacted in respect of subject matter
enumerated under Article 31A(1)(a) to (g) on the ground
of violation of Article 14 was also constitutionally
excluded. Article 31B read with Ninth Schedule protects
all laws even if they are violative of the fundamental
rights, but in I.R. Coelho's case (supra), a Constitution
Bench of this Court held that the laws added to the
Ninth Schedule, by violating the constitutional
amendments after 24.12.1973, if challenged, will be
decided on the touchstone of right to freedom
guaranteed by Part III of the Constitution and with

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reference to the basic structure doctrine, which includes
reference under Article 21 read with Articles 14, 15 etc.
Article 14 as a ground would also be available to
challenge a law if made in contravention of Article 30(1)
(A).

125. Article 265 states that no tax shall be levied or
collected except by authority of law, then the essential
characteristics of tax is that it is imposed under statute
power, without tax payer's consent and the payment is
enforced by law. A Constitution Bench of this Court in
Kunnathat Thathunni Moopil Nair's case (supra) held
that Sections 4, 5-A and 7 of the Travancore-Cochin
Land Tax Act are unconstitutional as being violative of
Article 14 and was held to be in violation of Article 19(1)

(f). Of course, this decision was rendered when the right
to property was a fundamental right. Article 300A,
unlike Articles 31A(1) and 31C, has not made the
legislation depriving a person of his property immune
from challenge on the ground of violation of Article 14 or
Article 21 of the Constitution of India, but let us first
examine whether Article 21 as such is available to
challenge a statute providing for no or illusory
compensation and, hence, expropriatory.

126. A Constitution Bench of this Court in Ambika Prasad
Mishra v. State of U.P. Others (1980) 3 SCC
719, while examining the constitutional validity of Article
31A, had occasion to consider the scope of Article 21 in
the light of the judgment of this Court in Maneka
Gandhi's case (supra). Dealing with the contention that
deprivation of property amounts to violation of the right
guaranteed under Article 21 of the Constitution of India,
this Court held as follows:

"12. Proprietary personality was integral to
personal liberty and a mayhem inflicted on a man's
property was an amputation of his personal liberty.
Therefore, land reform law, if unreasonable,
violates Article 21 as expansively construed in
Maneka Gandhi. The dichotomy between personal
liberty, in Article 21, and proprietary status, in
Articles 31 and 19 is plain, whatever philosophical
justification or pragmatic realisation it may possess
in political or juristic theory. Maybe, a penniless
proletarian, is unfree in his movements and has

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nothing to lose except his chains. But we are in
another domain of constitutional jurisprudence. Of
course, counsel's resort to Article 21 is prompted
by the absence of mention of Article 21 in Article
31-A and the illusory hope of inflating Maneka
Gandhi to impart a healing touch to those whose
property is taken by feigning loss of personal
liberty when the State takes only property, Maneka
Gandhi is no universal nostrum or cure-all, when all
other arguments fail!"

127. The question of applicability of Article 21 to the
laws protected under Article 31C also came up for
consideration before this Court in State of Maharashtra
Another v. Basantibai Mohanlal Khetan Others
(1986) 2 SCC 516, wherein this Court held that Article
21 essentially deals with personal liberty and has little to
do with the right to own property as such. Of course, the
Court in that case was not concerned with the question
whether the deprivation of property would lead to
deprivation of life or liberty or livelihood, but was
dealing with a case, where land was acquired for
improving living conditions of a large number of people.
The Court held that the Land Ceiling Laws, laws
providing for acquisition of land for providing housing
accommodation, laws imposing ceiling on urban
property etc. cannot be struck down by invoking Article
21 of the Constitution. This Court in Jilubhai Nanbhai
Khachar's case (supra) took the view that the principle
of unfairness of procedure attracting Article 21does not
apply to the acquisition or deprivation of property under
Article 300A.

128. Acquisition of property for a public purpose may
meet with lot of contingencies, like deprivation of
livelihood, leading to violation of Art.21, but that per se
is not a ground to strike down a statute or its provisions.
But at the same time, is it the law that a Constitutional
Court is powerless when it confronts with a situation
where a person is deprived of his property, by law, for a
private purpose with or without providing
compensation? For example, a political party in power
with a massive mandate enact a law to acquire the
property of the political party in opposition not for public
purpose, with or without compensation, is it the law, that
such a statute is immune from challenge in a

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Constitutional Court? Can such a challenge be rejected
on the ground that statute does not violate the
Fundamental Rights (due to deletion of Art.19(1)(f) and
that the legislation does not lack legislative competence?
In such a situation, is non-availability of a third ground
as propounded in State of A.P. Others v. Mcdowell
Co. Others (1996) 3 SCC 709, is an answer? Even in
Mcdowell's case (supra), it was pointed out some other
constitutional infirmity may be sufficient to invalidate
the statute. A three judges Bench of this Court in
Mcdowell Co. Others case (supra) held as follows:

"43. .......The power of Parliament or for that
matter, the State Legislature is restricted in
two ways. A law made by Parliament or the
legislature can be struck down by courts on
two grounds and two grounds alone, viz., (1)
lack of legislative competence and (2)
violation of any of the fundamental rights
guaranteed in Part III of the Constitution or of
any other constitutional provision. There is no
third ground......... No enactment can be
struck down by just saying that it is arbitrary
or unreasonable. Some or other constitutional
infirmity has to be found before invalidating
an Act. An enactment cannot be struck down
on the ground that court thinks it unjustified.
Parliament and the legislatures, composed as
they are of the representatives of the people,
are supposed to know and be aware of the
needs of the people and what is good and bad
for them. The court cannot sit in judgment
over their wisdom.........."

129. A two judges Bench of this Court in Union of India
Another v. G. Ganayutham (1997) 7 SCC 463, after
referring to Mcdowell's case (supra) stated as under:

"that a statute can be struck down if the
restrictions imposed by it are disproportionate
or excessive having regard to the purpose of
the statute and that the Court can go into the
question whether there is a proper balancing
of the fundamental right and the restriction
imposed, is well settled."

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130. Plea of unreasonableness, arbitrariness,
proportionality, etc. always raises an element of
subjectivity on which a court cannot strike down a
statute or a statutory provision, especially when the
right to property is no more a fundamental right.
Otherwise the court will be substituting its wisdom
to that of the legislature, which is impermissible in
our constitutional democracy.

131. In Dr. Subramanian Swamy v. Director, CBI
Others (2005) 2 SCC 317, the validity of Section 6-A of
the Delhi Special Police Establishment Act, 1946, was
questioned as violative of Article 14 of the Constitution.
This Court after referring to several decisions of this
Court including Mcdowell's case (supra), Khoday
Distilleries Ltd. Others v. State of Karnataka Others
(1996) 10 SCC 304, Ajay Hasia Others v. Khalid Mujib
Sehravardi Others (1981) 1 SCC 722, Mardia
Chemicals Ltd. Others v. Union of India Others
(2004) 4 SCC 311, Malpe Vishwanath Achraya Others
v. State of Maharashtra Another (1998) 2 SCC 1 etc.
felt that the question whether arbitrariness and
unreasonableness or manifest arbitrariness and
unreasonableness being facets of Article 14 of the
Constitution are available or not as grounds to invalidate
a legislation, is a matter requiring examination by a
larger Bench and accordingly, referred the matter for
consideration by a Larger Bench.

132. Later, it is pertinent to note that a five- judges
Bench of this Court in Ashok Kumar Thakur v. Union of
India Others (2008) 6 SCC 1 while examining the
validity of the Central Educational Institutions
(Reservation in Admission) Act, 2006 held as follows:

219. A legislation passed by Parliament can be
challenged only on constitutionally recognised
grounds. Ordinarily, grounds of attack of a
legislation is whether the legislature has legislative
competence or whether the legislation is ultra vires
the provisions of the Constitution. If any of the
provisions of the legislation violates fundamental
rights or any other provisions of the Constitution, it
could certainly be a valid ground to set aside the

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legislation by invoking the power of judicial review.
A legislation could also be challenged as
unreasonable if it violates the principles of equality
adumbrated in our Constitution or it unreasonably
restricts the fundamental rights under Article 19 of
the Constitution. A legislation cannot be challenged
simply on the ground of unreasonableness because
that by itself does not constitute a ground. The
validity of a constitutional amendment and the
validity of plenary legislation have to be decided
purely as questions of constitutional law........."

Court also generally expressed the view that the
doctrines of "strict scrutiny", "compelling evidence"
and "suspect legislation" followed by the U.S.
Courts have no application to the Indian
Constitutional Law.

133. We have already found, on facts as well as on law,
that the impugned Act has got the assent of the
President as required under the proviso to Article
31A(1), hence, immune from challenge on the ground of
arbitrariness, unreasonableness under Article 14 of the
Constitution of India.

134. Statutes are many which though deprives a person
of his property, have the protection of Article 30(1A),
Article 31A, 31B, 31C and hence immune from challenge
under Article 19 or Article 14. On deletion of Article
19(1(f) the available grounds of challenge are Article 14,
the basic structure and the rule of law, apart from the
ground of legislative competence. In I.R. Coelho's case
(supra), basic structure was defined in terms of
fundamental rights as reflected under Articles 14, 15,
19, 20, 21 and 32. In that case the court held that
statutes mentioned in the IXth Schedule are immune
from challenge on the ground of violation of fundamental
rights, but if such laws violate the basic structure, they
no longer enjoy the immunity offered, by the IXth
Schedule."

[Emphasis Supplied]

[l] In the case of Samsher Singh v. State of Punjab
and Anr. [1974)2 SCC 831] the Apex Court referred to a

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decision in the case of Jayantilal Amritlal Shodhna v. F.N.Rana
[AIR 1964 SC 648] wherein validity of notification issued by
President under Article 258(1) of the Constitution of India
entrusting with the consent of the Government of Bombay to
the Commissioners of Divisions in the State of Bombay, the
functions of the Central Government under the Land
Acquisition Act in relation to the acquisition of land for the
purpose of the Union within the territorial jurisdiction of the
Commissioners, was considered and in paragraphs 41 to 43,
the Apex Court observed as under:

"41 This Court in Jayantilal Amritlal Shodhan v. F.
N. Rana Ors. [1964] 5 S. C. R. 294 considered the
validity of a notification issued by the President
under Article 258(1) of the Constitution entrusting
with the consent of the Government of Bombay to the
Commissioners of Divisions in the State of Bombay
the functions of the Central Government under the
Land Acquisition Act in relation to the acquisition of
land for the purposes of the Union within the
territorial jurisdiction of the Commissioners. The
notification issued by the President was dated 24
July, 1959. The Commissioner of Baroda Division,
State of Gujarat by notification published on 1
September, 1960, exercising functions under the
notification issued by the President notified under
Section 4(1) of the Land Acquisition Act that certain
land belonging to the appellant was needed for a
public purpose. On 1 May, 1960 under the Bombay
Reorganization Act, 1960 two States were carved out,
viz., Maharashtra and Gujarat. The appellant
contended that the notification issued by the
President under Article 258(1) was ineffective
without the consent of the Government of the, newly
formed State of Gujarat.

42 This Court in Jayantilal Amritlal Shodhan's case
(supra) held that Article 258 enables the President to
do by notification what the Legislature could do by
legislation, namely, to entrust functions relating to

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matters to which executive power of the Union
extends to officers named in the notification. The
notification issued by the President was held to have
the force of law. This Court held that Article 258 (1)
empowers. the President to entrust to the State the
functions which are vested in the Union, and which
are exercisable by the President on behalf of the
Union and further went on to say that Article 258
does not authorize the President to entrust such
power as are expressly vested in the President by the
Constitution and do not fall within the ambit of
Article 258(1). This Court illustrated that observation
by stating that the power of the President to
promulgate Ordinances under Articles 268 to 279
during an emergency, to declare failure of
constitutional machinery in States under Article 356,
to declare a financial emergency under Article 360;

to make rules regulating the recruitment and
conditions of service of persons appointed to posts
and services in connection with the affairs of the
Union under Article 309 are not powers of the Union
Government but are vested in the President by the
Constitution and are incapable of being delegated or
entrusted to any other body or authority under
Article 258 (1).

43 The ratio in Jayantilal Amritlal Shodhan's case
(supra) is confined to the powers of the President
which can be conferred on States under Article 258.
The effect of Article 258 is to make a blanket
provision enabling the President to exercise the
power which the Legislature could exercise by
legislation, to entrust functions to the Officers to be
specified in that behalf by the President and subject
to the conditions Prescribed thereby. The result of
the notification by the President under Article 258 is
that wherever the expression appropriate
Government" occurs in the Act in relation to
provisions for acquisition of land for the purposes of
the Union, the words "Appropriate Government or
the Commissioner of the Division having territorial
jurisdiction over the area in which the land is situate"
were deemed to be substituted."

Further, in paras 48 and 144, the Apex Court has taken

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note role of the President as well as Governor in the

Constitution of India. Paras 48 and 144 read as under:

"48 The President as well as the Governor is
the Constitutional or formal head. The
President as well as the Governor exercises his
powers and functions conferred on him by or
under the Constitution on the aid and advice of
his Council of Ministers, save in spheres where
the Governor is required by or under the
Constitution to exercise his functions in his
discretion. Wherever the Constitution requires
the satisfaction of the President or the Governor
for the exercise by the President or the
Governor of any power or function, the
satisfaction required by the Constitution is not
the personal satisfaction of the President or
Governor but the satisfaction of the President
or Governor in the Constitutional sense in the
Cabinet system of Government, that is,
satisfaction of his Council of Ministers on whose
aid and advice the President or the Governor
generally exercise all his powers and functions.
The decision of any Minister or officer under
rules of business made under any of these two
Articles 77(3) and 166(3) is the decision of the
President or the Governor respectively. These
articles did not provide for any delegation.
Therefore, the decision of Minister or officer
under the rules of business is the decision of
the President or the Governor."

144 Some observations in the ruling relied upon,
namely Jayantilal Amritlal Shodhan v. F N. Rama
[supra] apparently seem to support the conclusion
reached in Sardarilal,(Supra) but it must be
remembered that the actual case turned on the
constitutionality of the President delegating
executive powers conferred on him by Art. 258 to a
government of a State. In that case a distinction was
made between functions with which the Union

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Government is invested and those vested in the
President. The Court took the view that Art.258 (1)
did not permit the President to part with powers and
functions with which he is, by express provisions of
the Constitution qua President, invested. The
particular observations relied upon in Sardarilal may
well be extracted here:

"The power to promulgate Ordinances
under Art. 123; to suspend the provisions
of Arts. 268 to 279 during an emergency; to
declare failure of the Constitutional
machinery in States under Art. 356; to
declare a financial emergency under Art.

360 to make rules regarding the
recruitment and conditions of service of
persons appointed to posts and services in
connection with the affairs of the Union
under Art. 309-to enumerate a few out of
the various powers-are not powers of the
Union Government; these are powers
vested in the President by the Constitution
and are incapable of being delegated or
entrusted to any other body or authority
under Art. 258 (1). The plea that the very
nature of these powers is such that they
could not be intended to be entrusted
under Art. 258 (1) to the State or officer of
the State, and, therefore, that clause must
have a limited content, proceeds upon an
obvious fallacy. Those powers cannot be
delegated under Art. 258(1) because they
are not the powers of the Union and not
because of their special character. There is
a vast array of other powers exercisable by
the President-to mention only a few
appointment of judges; Art. 124 217,
appointment of Committees of Official
Languages Act, Art. 344, appointment of
Commissions to investigate conditions of
backward classes; Art. 340, appointment of
Special Officer for Scheduled Castes and
Tribes; Art. 338, exercise of his pleasure to
terminate employment; Art. 310
declaration that in the interest of the

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security of the State it is not expedient to
give a public servant sought to be
dismissed an opportunity contemplated by
Art. 311 (2)-these are executive powers of
the President and may not be delegated or
entrusted to another body or officer
because they do not fall within Art. 258".

[Emphasis Supplied]

19. We have given our thoughtful consideration to the
exhaustive submissions made by learned counsel appearing
for the petitioners and learned Advocate General appearing
for the State of Gujarat and also learned counsels appearing
for NHSRCL and Railways. Keeping in mind the Object and
Reasons of the Act 2013 namely expropriate piece of
legislation which provides for a humane, participative,
informed and transparent process for land acquisition for
Industrialization, Development of Essential
Infrastructural facilities and Urbanisation with least
disturbance to the owners of the land and other affected
families and also provide just and fair compensation to
the affected families whose land has been acquired or
proposed to be acquired and also to see that such
affected persons are rehabilitated and resettled and
simultaneously facilitating land acquisition for avowed objects
of industrialization, infrastructure and urbanization projects
in a timely and transparent manner and also principles
governing the interpretation of Constitution of India as
emerging on reading of the Constitution Bench judgement of
the Apex Court in the case of Synthetics and Chemicals
Ltd. Ors. (supra) that the Constitution is a living thing and

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must adapt itself to the changing situations and pattern in
which it has to be interpreted and further various entries in
the three lists of the Indian Constitution are not powers but
fields of legislation and requirement of liberal approach while
considering legislative entries as held in the case of
M.P.V.Sundararamier Co. (supra), we reiterate that
essentials of Article 254 of the Constitution of India as held in
paragraph no. 10 in the case of Kaiser-I-Hind (supra)
namely about inconsistencies between laws made by
Parliament and laws made by Legislation of States, following
requirements are to be satisfied:

(I) Laws made by the Legislature of State should be with
respect to one of the matters enumerated in the
Concurrent List;

(II) It contains any provision repugnant to the
provisions of an earlier law made by the Parliament or
an existing law with respect to that matter;
(III) The law so made by the Legislature of the State has
been reserved for the consideration of the President and
lastly;

(IV) It has received the President's assent.

19.1 The assent is interpreted as reflected from the earlier
paragraphs wherein the Apex Court has noted various
meaning attributed in Corpus Juris Secundum about
Assent and referring to its dictionary meaning in
Shorter Oxford Dictionary, Bouvier's Law Dictionary,
Law Lexicon of British India by P. Ramanatha Aiyer,
Websters' 3rd New International Dictionary [Vol.I],

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Random House Dictionary, and Words Phrases
Judicial Dictionary (supra) as per the emphasis supplied
therein. In the facts of this case, if we notice the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Gujarat amendment) Bill,
2016 namely Gujarat Bill No. 5 of 2016, it has inserted
Section 10A , Section 23A, proviso after the existing proviso in
sub-section (2) of Section 24 and Section 31A with regard to
grant of exemption of Chapter II III of Act, 2013 in case of
certain projects to be undertaken by the State Government
and clause (j) thereof is about infrastructure projects
including projects under public private partnership where the
ownership of land continues to vest with the Government.
The above Section 10A enumerates broad legislative policy
and guidelines and the same is reproduced hereunder once
again:

"10A. The State Government may, in the public
interest, by notification in the Official Gazette,
exempt any of the following projects from the
application of the provisions of Chapter II and
Chapter III of this Act, namely:-

(f) Such projects vital to national security or defence of
India and every part thereof, including preparation for
defence or defence production;

(g) Rural infrastructure including electrification;

(h) Affordable housing and housing for the poor
people;

(i) Industrial corridors set up by the State Government and
its undertakings (in which case the land shall be

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acquired up to one kilometre on both sides of designated
railway line or roads for such industrial corridor); and

(j)Infrastructure projects including projects under
public-private partnership where the ownership of
land continues to vest with the Government;

Provided that the State Government shall,
before the issue of notification, ensure the
extent of land for the proposed acquisition
keeping in view the bare minimum land
required for such project."

[Emphasis Supplied]

19.2 It is pertinent to note that in order to achieve minimum
consequential impact in terms of displacement amongst other
needs, the funding agency involved in the entire project has
already in advance decided about the two main aspects (I)
selection of a particular route (II) bare minimum extent of
land i.e. patch of land having width of 17.5+5+5 meters only
for accommodating elevated corridor.

19.3 By letter dated 26.04.2016 addressed by the Secretary
of Legislative Parliamentary Affairs Department of the
State of Gujarat to the Principal Secretary to the Hon'ble the
Governor of Gujarat, in pursuance of Article 200 of the
Constitution of India an authentic copy in triplicate of the
Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (Gujarat
amendment) Bill, 2016 which was passed by the Gujarat
Legislative Assembly on 31.03.2016 was presented to the
Honourable Governor of Gujarat. The subject matter of the

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Bill admittedly falls under Entry No. 42 in List III of the
Seventh Schedule of the Constitution of India and it
categorically mentions that provisions of the Bill are
repugnant to the provisions of the Gujarat Amendment Bill,
2013 and existing law falling under Entry No. 42 in the
Concurrent List. As per the above communication, request
was made to Honourable the Governor of Gujarat to move to
the Government of India to obtain assent of the President to
such Bill. The above communication is accompanied with a
certificate that certain documents were attached. The Bill,
2016 also contained a note on clauses of the proposed
legislation.

19.4 Apropos the above, the office of the Honourable
Governor addressed a communication to the Principal
Secretary to the State, Ministry of Home Affairs, Government
of India, New Delhi on 21.05.2016 with the following
categorical observations:

1. The Bill was passed by the Gujarat
Legislative Assembly at its meeting held on 31st
March, 2016.

2. The subject matter of the Bill falls under
Entry 42 in List III of the VIIth Schedule to the
Constitution of India.

3. The Bill was not referred to the Select
Committee.

4. AS the provisions of the Bill are repugnant to
the provisions of the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013,
which is an existing law falling under entry 42 in
the Concurrent List, the State Government has
opined that it is necessary to reserve the Bill for
the kind consideration of the Hon. President of
India with reference to Clause (2) of Article 254

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of the Constitution of India.

19.5 The above communication also referred to the Statement
of Objects and Reasons attached to the Bill which also gives
background under which the State Government considered it
necessary to introduce the Bill. Upon due deliberation and
consideration, the Honourable Governor of Gujarat thought it
fit and necessary to reserve the Bill for the kind consideration
of the President of India and further directed to submit it to
the Government of India in the Ministry of Home Affairs for
further process so that finally kind consent of the Honourable
President of India could be obtained.

19.6 As per communication of Ministry of Home Affairs,
Government of India dated 10.08.2016, the Honourable
President of India had assented the Bill on 08.08.2016 as per
powers conferred under Article 201 of the Constitution of
India. The enclosures reveal that the Honourable President
was apprised of the existing provisions of the Act and Sections
as would appear after incorporating the amendments in the
existing provisions. Thus, pointedly it was brought to the
notice of the President of India about the
repugnancies/inconsistencies in the Bill that was passed by
the Gujarat State Legislative Assembly namely Gujarat
Amendment Bill, 2016. For the sake of convenience, we may
again reproduce the nature of repgunancies/inconsistencies
brought to the notice of the Honourable President of India in a
tabular form by pointing out existing provisions of central
legislation namely Central Act, 2013, respective clause nos. of
the Bill, section as would appear after incorporating
amendment in the existing provisions which clearly go to

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show that the President was presented with the
inconsistencies in the respective Acts upon Gujarat
Amendment Bill, 2016 presented to the Honourable President
of India which was reserved by the Governor for assent of the
Honourable President.

Sr Existing provisions Clau Section as would
. se appear after
N No. incorporating
o. of amendment in the
the existing provisions
Bill
1. 2. Application of Act. 2. 2. Application of Act.
(1) xxx (1) xxx xxx
xxx
xxx
(2) The provisions of this Act
xxx relating to land acquisition,
compensation, rehabilitation and
(2) The provisions resettlement, Shall also apply,
of this Act when the appropriate Government
relating to land acquires land for the following
acquisition, purposes, namely:-
consent,
compensation, (a) for public private
rehabilitation and partnership projects, where
resettlement, shall the ownership of the land
also apply, when continues to vest with the
the appropriate Government, for public
Government purpose as defined in sub-
acquires land for section (1);
the following
purposes, (b) for private companies for
namely:- public purpose, as defined in
sub-section (1):
(a) for
public Provided that in the
private case of acquisition for-
partnership
projects, (i) private companies, the
where the prior consent of atleast eighty
ownership percent. of those affected families,
of the land as defined in sub-clause clause (i)
continues to and (v) of clause (c) of section 3;
vest with and

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the (ii) public private partnership
government projects; the prior consent of at
, for public least seventy per cent. of those
purpose as affected families, as defined in
defined in sub-clauses (i) and (v) of clause
sub-section (c) of section 3, shall be obtained
(1): through a process as may be
prescribed by the appropriate
(b) for Government:
private
companies Provided further that the
for public process of obtaining the consent shall be
purpose, as carried out along with the Social
defined in Impact Assessment study referred to in
sub-section section 4:
(1):
Provided also that no land shall

be transferred by way of acquisition, in
Provided that in the Scheduled Areas in
the case of acquisition contravention of any law (including any
for- order or judgment of a court which
has become final) relating to land transfer,

(i) private prevailing in such Scheduled
companies, the prior Areas:

consent of atleast eighty
percent of Provided also that the
those affected acquisition of land for the projects
families, as listed in sub-section (1) of section
defined in sub- 10A and the purposes specified therein
clauses (i) and shall be exempted from the provisions
(v) of clause (c) of the first proviso to this sub-
of Section 3; section.
and
(3) xxx xxx
(ii) public xxx
private
partnership
projects, the
prior consent of
at least seventy
per cent of those
affected
families, as
defined in sub-
clauses (i) and
(v) of clause (c)
of Section 3,
shall be
obtained
through a
process as may
be prescribed by

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the appropriate
Government:
Provided further
that the process
of obtaining the
consent shall be
carried out
along with the
Social Impact
Assessment
study referred to
in Section 4:

Provided also
that no land
shall be
transferred by
way of
acquisition, in
the Scheduled
Areas in
contravention of
any law
(including any
order or
judgment of a
court which has
become final)
relating to land
transfer,
prevailing in
such Scheduled
Areas.

(3) xxx
xxx
xxx

2. Insertion of new section 3. 10A. Power of State Government to
10A. exempt certain projects.
The State Government may, in the

public interest, by notification in the
Official Gazette, exempt any of the
following projects from the
application of the provisions of
Chapter II and Chapter III of this
Act, namely:-

(a) such projects vital to national

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security or defence of India
and every part thereof,
including preparation for
defence or defence production

(b) rural infrastructure including
electrification;

(c) affordable housing and housing
for the poor people;

(d) industrial corridors set up by
the State Government and its
undertakings (in which case
the land shall be acquired up to
one kilometer on both sides of
designated railway line or
roads for such industrial
corridor); and

(e) infrastructure projects
including projects under
public-private partnership
where the ownership of land
continues to vest with the
Government:

Provided that the State
Government shall, before the issue of
notification, ensure the extent of
land for the proposed acquisition keeping
in view the bare minimum land
required for such project.".

3.   Insertion of new section           23A. Award of Collector without
23A. enquiry in case of agreement of
interested persons.
(1) Notwithstanding anything
contained in section 23, if at any
stage of the proceedings, the
Collector is satisfied that all the
persons interested in the land who
appeared before him have agreed
in writing on the matters to be
included in the award of the
Collector in the form prescribed
16 of by rules made by the State
1908. Government, he may, without
making further enquiry, make an
award according to the terms of
such agreement.
(2) The determination of

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compensation for any land under
sub section (1) shall not in any
way affect the determination of
compensation in respect of other
lands elsewhere in accordance
with the other provisions of this
Act.
(3) Notwithstanding anything
contained in the Registration Act,
1908, no agreement made under
sub-section (1) shall be liable to
registration under that Act.
4. 24. Land acquisition 5. 24. Land acquisition process under Act
process under Act No. 1 No. 1 of 1894 shall be deemed to have
of 1894 shall be deemed lapsed in certain cases.
to have lapsed in certain (1) XXX
cases. XXX
(1) XXX XXX
1 of
1894 (2) Notwithstanding anything
XXX
contained in sub-section (1), in
case of land acquisition
XXX
proceedings initiated under the
(2) Land Acquisition Act, 1894,
Notwithstanding where an award under the said
anything section 11 has been made five
contained in sub- years or more prior to the
section (1), in commencement of this Act but the
case of land physical possession of the land has
acquisition not been taken or the
proceedings compensation has not been paid,
initiated under the the said proceedings shall be
Land Acquisition deemed to have lapsed and the
Act, 1894, where appropriate Government, if it so
an award under chooses, shall initiate the
the said section 11 proceedings of such land
has been made acquisition afresh in accordance
five years or more with the provisions of this Act:
prior to the
commencement of Provided that where an
this Act but the award has been made and
physical compensation in respect of a
possession of the majority of land holdings has not
land has not been been deposited in the account of
taken or the the beneficiaries, then, all
compensation has beneficiaries specified in the
not been paid, the notification for acquisition under
said proceedings section 4 of the said Land
shall be deemed Acquisition Act, shall be entitled
to have lapsed and to compensation in accordance

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the appropriate with the provisions of this Act:
Government, if it
so chooses, shall Provided further that in
initiate the computing the period referred to
proceedings of in this sub-section, any period or
such land periods during which the
acquisition afresh proceedings for acquisition of
in accordance the land were held up on
with the account of any stay or injunction
provisions of this issued by any court or the taking
Act: possession or such period where
possession has been taken but in
Provided any period specified in the
that where an award of a Tribunal for the
award has been compensation is lying deposited
made and in a court or designated account
compensation in maintained for this purpose,
respect of a shall be excluded.
majority of land
holdings has not
been deposited in
the account of the
beneficiaries,
then, all
beneficiaries
specified in the
notification for
acquisition under
section 4 of the
said Land
Acquisition Act,
shall be entitled to
compensation in
accordance with
the provisions of
this Act.

5. Insertion of new section 6. 31A. Payment of lump- sum amount by
31A. State Government for its linear nature
projects.
Notwithstanding anything
contained in this Act, it shall be
competent for the State
Government to pay, whenever the
land is to he acquired for its own
use amounting to less than one
hundred acres or whenever the
land is to be acquired in case of
which are linear in nature as

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referred to in proviso to sub-
section (4) of section 10, as
Rehabilitation and Resettlement
cost, such lump sum amount equal
to fifty per cent. of the amount of
compensation as determined under
section 27 to the affected families
6. 40. Special powers in 7. 40. Special powers in case of urgency to
case of urgency to acquire land in certain cases.
acquire land in certain
(1) In cases of urgency, whenever
cases.
the appropriate Government so
(1) In cases of directs, the Collector, though no
urgency, such award has been made, may,
whenever the on the expiration of thirty days
appropriate from the publication of the notice
Government so mentioned in section 21, take
directs, the possession of any land needed for
Collector, though a public purpose and such land
no such award has shall thereupon vest absolutely in
been made, may, the Government, free from all
on the expiration encumbrances.
of thirty days
from the (2) The powers of the appropriate
publication of the Government under sub-section (1)
notice mentioned shall be restricted to the minimum
in section 21, take area required for the defence of
possession of any India or national security or for
land needed for a any emergencies arising out of
public purpose natural calamities or any other
and such land emergency with the approval of
shall thereupon Parliament or to comply with the
vest absolutely in directions given by the Central
the Government, Government to the State
free from all Government:
encumbrances. Provided that the Collector
shall not take possession of any
building or part of a building
(2) The powers under this sub-section without
of the giving to the occupier thereof at
appropriate least forty-eight hours notice of his
Government intention to do so, or such longer
under sub- notice as may be reasonably
section (1) sufficient to enable such occupier
shall be to remove his movable property
restricted to from such building without
the minimum unnecessary inconvenience.
area required
for the (3) to (5) XXX
defence of XXX XXX

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India or
national
security or
for any
emergencies
arising out of
natural
calamities or
any other
emergency
with the
approval of
Parliament:

Provided that
the Collector shall
not take
possession of any
building or part of
a building under
this sub-section
without giving to
the occupier
thereof at least
forty-eight hours
notice of his
intention to do so,
or such longer
notice as may be
reasonably
sufficient to
enable such
occupier to
remove his
movable property
from such
building without
unnecessary
inconvenience.

(3) to (5)
XXX
XXX
XXX
7. 46. Provisions relating 8. 46. Provisions relating to rehabilitation
to rehabilitation and and resettlement to apply in case of
resettlement to apply in certain persons other than specified
case of certain persons persons.
other than specified

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persons. (1) Where any person other than a
specified person is purchasing
(1) Where any land through private negotiations
person other than for an area equal to or more such
a specified person limits, as may be notified by the
is purchasing land appropriate Government,
through private considering the relevant State
negotiations for specific factors and for which the
an area equal to or payment of Rehabilitation and
more such limits, Resettlement Costs under this Act
as may be notified is required, he shall file an
by the appropriate application with the District
Government Collector notifying him of
considering the
relevant State (c) intent to purchase;
specific factors
(d) purpose for which such
and circumstances
purchase is being made;
for which the
payment of
Rehabilitation and (c) particulars of lands to be
Resettlement purchased.
Costs under this
(2) to (5) XXX
Act is required, he
XXX XXX
shall file an
application with
(6) If any land has been purchased
the District
21 of through private negotiations by a
Collector
1860 person on or after the 5th day of
notifying him of
September, 2011, which is more
(a) intent to than such limits referred to in sub-
purchase; section (1) and, if the same land is
(b) purpose acquired within three years from
for which the date of commencement of this
such Act, then, forty per cent. of the
purchase is compensation paid for such land
being made; acquired shall be shared with the
original land owners.
(c)
particulars Explanation.- For the purpose of
of lands to this section, the expression-
be
purchased. (a) "original land owner" refers to
the owner of the land as on the 5th
(2) to (5) XXX day of September, 2011;

XXX (b) "specified persons" includes any
XXX person other than-
(i) deleted;
(6) If any land has (ii) Government company;
been purchased (ii) association of persons or
through private trust or society as registered
negotiations by a under the Societies Registration

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person on or after Act, 1860, wholly or partially
the 5th day of aided by the appropriate
September, 2011, Government or controlled by
which is more than the appropriate Government.
such limits referred
to in sub-section
(1) and, if the same
land is acquired
within three years
from the date of
commencement of
this Act, then, forty
per cent. of the
compensation paid
for such land
acquired shall be
shared with the
original land
owners.
Explanation. - For
the purpose of this
section, the
expression-
(a) "original land
owner" refers to
the owner of the
land as on the 5th
day of September,
2011;
(b) "specified
persons" includes
any person other
than-
(i) appropriate
Government;
(ii)
Government
company;
(iii)
association of
persons or
trust or society
as registered
under the
Societies
Registration
Act, 1860,
wholly or
partially aide

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by the
appropriate
Government
or controlled
by the
appropriate
Government.
8. 87. Offences by 9. 87. Offences by Government Officials.
Government Where any offence under this
departments. Act has been committed by any
(1) Where an person who is or was employed
offence under this in the Central Government or
Act has been the State Government, as the
committed by any case may be, at the time of
department of the commission of such alleged
Government, the offence, the court shall take
head of the 2 of cognizance of such offence
department, be 1974 provided the procedure laid
deemed to be down in section 197 of the Code
guilty of the of Criminal Procedure, 1973 is
offence and shall followed.
be liable to
proceeded against
and punished
accordingly
Provided
that nothing
contained in this
section shall
render any person
liable to any
punishment if
such person
proves offence
was committed
without his
knowledge or that
exercised all due
diligence to
prevent the
offence that the
such person
commission of
such offence.
(2)
Notwithstanding
anything
contained in sub-
section (1), where

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any offence under
this Act has been
committed by a
Department of the
Government and
it is proved that
the offence has
been committed
with the consent
or connivance of,
or is attributable
to any neglect on
the part of any
officer, other than
the head of the
department, such
officer shall also
be deemed to be
guilty of that
offence and shall
be liable to be
proceeded against
and punished
accordingly.

19.7 Therefore, on the facts of the present case, there is

limited scope to undertake microscopic exercise of scrutiny of
satisfaction of the Honourable President qua such
repugnancies/inconsistencies when the same were brought to
the notice of the Honourable President of India.

20. Thus, pursuant to the Honourable President being
satisfied about the repugnancies/inconsistencies and after
having given his assent on 08.08.2016, all actions were taken
including issuance of notification dated 06.02.2018 under sub-
section (1) of Section 2 of the Act of 2013 and also issuance of
notification under sub-section(1) of Section 11 of the Act of
2013. Accordingly, requirement of Article 254(2) of the
Constitution of India is complied with and a Bill which was
reserved by the Governor received assent of the Honourable

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President of India and it became an Act being Act, 2016 and
State Law will prevail over Central Law to the extent of
inconsistency as laid down and which has been discussed
hereinafter in the case of M. Karunanidhi (supra).

21. However, during the pendency of writ petitions powers
conferred by clause (1) of Article 258 of the Constitution of
India and the President with the consent of the Government of
State of Gujarat directed (a) that the functions of the Central
Government as the appropriate government under the said
Act may be performed by the Government of Gujarat subject
to the condition that the Central Government may itself, at
any time, perform the functions of the appropriate
Government under the said Act if it deems fit to do so and (b)
that all the actions taken by the Government of Gujarat in
relation to acquisition of land within the territory of Gujarat
for the aforesaid purpose shall be deemed to have been taken
for and on behalf of the Central Government and shall be
deemed to be legal and valid for all purposes; and (c)
that the Government of Gujarat, while performing any
function under this notification, shall comply with such
general and special directions as the Central Government
may, from time to time, give.

22. Submissions made by learned advocate for the
petitioners about width and amplitude of exercise of
Presidential power under Article 258 of the Constitution of
India is subject to limitations imposed under Article 73 of the
Constitution of India if considered with principles of
interpretation of constitutional provisions and also of statutes
namely the Court has to adhere to golden rule of

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interpretation that provisions are to be interpreted by
adhering to plain, simple and grammatical interpretation.
Article 258 begins with non-obstante clause "Notwithstanding
anything to the contrary" while Article 73 has a phrase
"subject to the provisions of the Constitution of India" and
proviso therein contains restriction to the extent of "Save as
expressly provided in this Constitution or in any law by the
Parliament" and therefore what is expressly provided in the
Constitution is clearly powers conferred by the President to
entrust certain functions in relation to any matter to which
the executive power of the Union intends. Therefore, Article
258 as such governs the field stand alone and even if read in
juxtaposition to Article 73 of the Constitution of India, no
limitations are prescribed in Article 73 except that express
provisions in the Constitution are provided for entrusting such
functions. Article 73 and Article 258 of the Constitution of
India are mutually exclusive.

22.1 Article 258 provides for a blanket provision enabling the
Hon'ble President of India to exercise the power which the
legislature could exercise by Legislation and which includes
even the validation or ratification of past actions. This very
aspect is explained by the Apex Court in the case of Samsher
Singh (supra) wherein the judgement in the case of
Jayantilal Amritlal Shodhan (supra) was followed. We
have reproduced the relevant paragraphs in the case of
Samsher Singh (supra) as above.

23. Having so interpreted Article 258 of the Constitution of
India, we may advert to the contentions raised about powers
exercised by the President of India under Article 258

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belatedly during the pendency of writ petitions before this
Court to which we are of the considered opinion that no
malice or any arbitrariness can be attributed to the President
of India and further entrustment of functions either
conditionally or unconditionally to the State Government and
its officers cannot be interpreted as prospective but it relates
back to earlier period also. What is entrusted is functions in
relation to any matter to which the executive powers of the
Union extends and once such entrustment is held legal,
consequences and effect thereof are irrelevant and it operates
with retrospective effect when such functions are taken by the
State Government and its officers. Therefore, in our view all
the actions taken by the officers and the authorities of the
State of Gujarat under the Gujarat Amendment Bill/Act, 2016
upon receiving assent of the President under Article 254 of
the Constitution of India and further receiving ratification by
way of entrustment under Article 258 of the Constitution of
India confers legality and validity of all actions taken by the
officers and authorities of the State pursuant to the Bill/Act,
2016.

24. Once this Court holds that Gujarat Amendment Bill has
received due assent of the President under Article 254 of the
Constitution of India and further ratification under Article 258
altogether is sufficient enough to reject the contention of
learned advocate for the petitioners that Gujarat Amendment
Bill/Act, 2016 is ultra vires the provisions of the central
legislation viz Act, 2013 and Constitution of India. That
repugnancy with the Amendment Act, 2013 is admitted in the
contents of the bill itself. What is to be seen by this Court is
whether the Bill was reserved by the Governor of Gujarat for

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presidential assent and the President was pointedly apprised
about such repugnancy that prevailed in the existing law and
the proposed law by State of Gujarat and satisfaction of the
President arrived at upon due deliberation and consideration
cannot be a subject matter of judicial review by the Court as
held in the decisions to which reference is made in the earlier
paragraphs in the cases of Rajiv Sarin (supra) and
Yogendra Jaiswal (supra).

25. Moreover, it is well settled that the presumption is
always in favour of the constitutionality of a statute and the
onus lies on the person assailing the Act to prove that it is
unconstitutional. We have also not lost sight of the fact that
while examining the challenge to the constitutionality of an
enactment, one is to start with the presumption of
constitutionality and the Court should always put efforts to
uphold the constitutionality of a statute by giving purposive
interpretation to the provisions rather than striking them
down. The Apex Court in the case of Bihar Distillery Ltd
(supra) has specifically held that the equality of three wings
viz. Executive, Legislature and Judiciary should be recognised
and that Judiciary should give due regard to the fundamental
nature and importance of legislative process. It is further
held therein that presumption should be in favour of a
constitutionality of a statute and the Court should try to
sustain its validity to the extent possible by ironing out
defects, if any, in drafting and that an act should be declared
as void only if its unconstitutionality is clearly established.

26. In the case of M. Karunanidhi (supra), the Apex Court
has clarified as to when repugnancy may result and in para 8

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has observed as under:

1. Where the provisions of a Central Act and a
State Act in the Concurrent List are fully
inconsistent and are absolutely irreconcilable, the
Central Act will prevail and the State Act will
become void in view of the repugnancy.

2. Where however a law passed by the State
comes into collision with a law passed by
Parliament on an Entry in the Concurrent List,
the State Act shall prevail to the extent of the
repugnancy and the provisions of the Central
Act would become void provided the State Act
has been passed in accordance with clause (2)
of Article 254.

3. Where a law passed by the State Legislature
while being substantially within the scope of
the entries in the State List entrenches upon
any of the Entries in the Central List 264 the
constitutionality of the law may be upheld by
invoking the doctrine of pith and substance if
on an analysis of the provisions of the Act it
appears that by and large the law falls within
the four corners of the State List an
entrenchment, if any, is purely incidental or
inconsequential.

4. Where, however, a law made by the
State Legislature on a subject covered by
the Concurrent List is inconsistent with
and repugnant to a previous law made by
Parliament, then such a law can be
protected by obtaining the assent of the
President under Article 254(2) of the
Constitution. The result of obtaining the
assent of the President would be that so
far as the State Act is concerned, it will
prevail in the State and overrule the
provisions of the Central Act in their
applicability to the State only. Such a state
of affairs will exist only until Parliament
may at any time make a law adding to, or
amending, varying or repealing the law

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made by the State Legislature under the
proviso to Article 254.

[Emphasis Supplied]

26.1 Further, the Apex Court has in the aforesaid case also
observed that before any repugnancy can arise, certain
conditions must be satisfied. They are as under:

1. That there is a clear and direct inconsistency
between the Central Act and the State Act.

2. That such an inconsistency is absolutely
irreconcilable.

3. That the inconsistency between the provisions of
the two Acts is of such a nature as to bring the two
Acts into direct collision with each other and a
situation is reached where it is impossible to obey
the one without disobeying the other.

27. Thus, we find that the State has a valid assent. The
Apex Court in the case of P.N. Krishna Lal and Others
(supra), lays down the requirement as provided under Article
254 of the Constitution of India. In the present case, all the
essential ingredients of Article 254(2) as specified in
paragraph no. 27 of Kaiser-I-Hind (supra), have stood
complied with inasmuch as pointed attention of Hon'ble the
President was drawn (i) by referring Entry 42 of the
Concurrent List (ii) by sending the whole Bill relating to
the State Act containing the repugnant provisions (iii)
by indicating the reasons for having such a law in the
Statement of Objects and Reasons attached thereto (iv)
reserving the said Bill for consideration of the Hon'ble

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President and (v) accord of the assent of the Hon'ble
President on 08.08.2016. Once the assent of the President
is sought and given to the State Amendment, though to some
extent inconsistency or repugnancy exists between any
provision, part or parts of any Act or Acts, the repugnancy or
inconsistency ceases to operate in relation to the State in
which the assented State enacts law. When the
communications addressed to the President as referred in the
case of Kaiser-I-Hind (supra) as Ex. P12 and
correspondence as Ex. F collectively, they did not indicate the
extent to which State law was repugnant if compared to those
with the case on hand. It is apparent that the concern of local
needs is reflected in the Statement of Objects and Reasons
along with pointed repugnancies in the amending State law
viz-a-viz Central Law, 2013 and specifically brought to the
notice of Honourable President of India. The Honourable
President of India cannot be expected to be unmindful and
unaware of the central legislation namely Central Act, 2013
and thus facts of present case to which we have referred to
hereinabove collectively lead to the only conclusion which is
even tested on the touchstone of parameters laid down in the
decision in the case of Kaiser-I-Hind (supra) that the
Amending Act, 2016 and the assent so received along with
entrustment of power by the Honourable President of India
upon conjoint reading of Articles 73, 200, 201, 245, 246, 254
and 258 of the Constitution of India and Amendment Act,
2016 stand up to the scrutiny of this Court on the touchstone
of constitutionality.

28. Having satisfied ourselves to the requirement of
mandate of constitutional provisions to be followed by the

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respective constitutional dignitaries namely the Governor and
the Honourable President of India, we may just reiterate the
import highlights of the project in question which is a major
infrastructural project as per Section 10A(j) with a public
purpose with least displacement and Social Impact
Assessment as reflected from the SOR of the Amendment Act,
2016 and accordingly we reproduce paragraph no. 3.4 of the
affidavit-in-reply as under:

"3.4 The important highlights of the project have been
set out in paragraph no. 5 of the reply which highlights
are as under:

"5. Before proceeding further, I may set out
hereunder the important highlights of the
Project in question.

(j) Total length of Mumbai -

Ahmedabad High Speed Train
Corridor is going to be around
508 kms, out of which a portion of
350.53 kms is going to be in the
State of Gujarat, 2 kms in Union
Territory of Dadra Nagar Haveli,
and 155.64 kms in the State of
Maharashtra.

(k) Pertinently, most of the portion of
the aforesaid corridor is going to
be elevated, except 21 kms
(approx) which would be
underground tunnel, of which 7
kms will be under sea.

(l) It is for the purpose of having the
said elevated corridor, that
requirement of land is of a patch

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having width of 17.5 mtrs for the
train track at all places other than
Station and Depot areas.

(m) There will be one parallel road
having width of 4 mtrs, which
would be constructed all along the
track (except on bridges, tunnels
and special occasions) within the
patch of 17.5 mtrs, which would be
available for the local public for the
usage. Within a range of 5 mtrs,
from the edge of the said patch of
17.5 mtrs on both the sides, people
will be at liberty to construct after
having intimated to the
Corporation and after having taken
requisite permission of concerned
developmental authorities.

(n) One of the main objectives of the
project in question is to reduce
traffic pollution and to strengthen
intraregional connectivity and to
enhance wide - ranging economical
development of the target areas.

(o) There will be going to be two types
of trains, out of which, one would
be covering the distance between
Ahmedabad - Mumbai in about 2
hours with 4 stations and another
within 3 hours with 12 stations, in
such a fashion that there will be 35
pairs of such trains which would
be running between two
destinations and would be available
at the interval of every 30 minutes
during the normal hours and every
20 minutes during the peak hours.

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(p) Total area of land to be acquired
under the State of Gujarat for the
project is in the order of about 966
hectares, out of which 753
hectares represent private owned
land, 89 hectares of land belong to
the State and State Authorities,
124 hectares belong to Indian
Railways and 0.7 hectares is the
forest land.

(q) Pursuant to the requirement of
JICA, an independent agency called
M/s Arcadis was short listed by
the Corporation with the
concurrence of JICA to carryout
district wise impact survey under
the supervision of JICA, which was
accordingly carried out during the
period from December, 2017 to
July, 2018, followed by submission
of "Resettlement Action Plan -

Mumbai - Ahmedabad High Speed
Railway Project" dated 10.08.2018,
wherefrom, the following
information can be gathered:

(i) Total project affected
household - 13006 (8472 - Guj);

(ii) Total Structures likely to be
affected - 3683 (1904 - Guj).

(r) 2nd Schedule to the Central Act of
2013 deals with various elements
of rehabilitation and resettlement
entitlements for the affected
families. For the project in
question, elements referred to as
Sr. Nos. 4, 5, 6, 7, 8, 10 and 11 are
being pressed in services as per the
eligibility criteria of the affected

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families. At the time of passing the
Award under section 43 of the
Central Act of 2013 by the
administrator i.e. Acquisition
Officer, the provisions of section
31A of the State amendment Act,
2016 will also be taken into
account, which provides for the
grant of lump sum amount of
compensation equivalent to 50% of
the amount of compensation
determined under section 27 as
Rehabilitation and Resettlement
Cost."

Thus, these above features reveal that the project in
question is an infrastructural project as per Section 10A(j) of
the Act, 2016 and serves public purpose.

29. One of the grounds under challenge in the present
petitions is completely doing away with the Social Impact
Assessment and Consent Clause/s, on the ground that Gujarat
is an industrially progressive State and more and more
investment is coming to the state and hence the state
government aims to provide all basic facilities and
infrastructure to the entrepreneurs. It is necessary to
mention at this stage that a similar exercise like Social Impact
Assessment was carried out by M/s. Arcadis Pvt. Ltd.
appointed by NHSRCL in the State of Gujarat under the
supervision of JICA by undertaking district-wise impact survey
during the period from December 2017 to July 2018. During
the course of such an exercise, M/s. Arcadis has captured all
the details and information which are ordinarily available as a
result of the conduct of the Social Impact Assessment like (i)
estimation of affected families and their number of members;

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(ii) extent of land acquired, such as agricultural land, private
land or common properties; (iii) issues as regards the land
compensation, livelihood, rehabilitation and resettlement of
the population. In the above contextual facts and contention
about dispensation of Social Impact Assessment as per
Chapter II, we can safely refer to an exhaustive survey
carried out by M/s. Arcadis which meets with almost all
important requirements of Chapter II about Determination of
Social Impact and Public Purpose which includes in Part-A
which is about preliminary investigation for determination of
social impact and public purpose and Part-B is about appraisal
of social impact assessment report by an expert group. For
the sake of convenience, paragraph no. 7.7 of the affidavit-in-
reply which contains district wise project impact, distribution
of land area by ownership, district wise common property
resources affected, vulnerability status of project affected
households, project affected households with breakup of title
holders and non-title holders is reproduced once again:

(ii) Table 1-1 indicating 'District wise Project Impact'.

                                                                Actual Data     Estimated Data   Percenta
Number
Number Percentage ge of
Private of Land
Area in of total of Land Actual No of
SN District Land Parcel Structur Structure
(Ha) Land Parcel PAH PAH to CPR
(Ha) Surveyed es s
Parcel Survey* PAH Estimate
*
d
1 Ahmedabad 160.59 30.24 541 441 81.52 804 231 928 243 86.64 1
2 Kheda 106.18 96.52 815 765 93.87 771 109 783 121 98.47 9
3 Anand 52.35 48.2 434 433 99.77 898 140 901 143 99.67 4
4 Vadodara 166.94 115.42 1738 1620 93.21 1783 502 1828 505 97.54 9
5 Bharuch 140.33 128.18 921 724 78.61 830 62 1015 72 81.77 4
6 Surat 160.14 139.17 833 394 47.30 458 30 639 130 72.00 0
7 Navsari 87.76 79.53 836 704 84.21 916 288 1045 301 87.66 3
8 Valsad 128.33 107.2 861 851 98.84 2012 542 2046 548 98.34 6
9 Palghar 279.87 188.26 1341 1035 77.18 3498 1551 4396 1581 80.00 1
10 Thane 139.07 78.69 437 318 72.77 915 159 1166 179 78.47 0
11 DNH 8.12 7.26 118 100 84.75 121 68 137 68 88.32 0

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12 Mumbai 4.6 3.7 3 3 100.00 0 1 0 1 0.00 0
1022.3
Total 1434.28 8878 7388 83.22 13006 3683 14884 3892 87.38 37
7

(ii) Table 2-1 indicating 'Distribution of land area by Ownership'.

No Land plots affected (No.) Land area (Ha)
of
Fo
District/ UT vill Go Tota Fores
Pvt. res IR1 Pvt. Govt. IR Total
age vt. l t
t
S s
N
Ahmedab 106.
1. 16 410 78 0* 53 541 30.24 23.2 0.19 160.59
ad 95
2. Kheda 22 691 122 0* 2 815 96.52 9.22 0.26 0.18 106.18
3. Anand 11 367 67 0* 0 434 48.2 3.91 0.24 0 52.35
142 29.7
4. Vadodara 35 264 0* 52 1738 115.42 21.64 0.1 166.94
2 8
5. Bharuch 27 729 191 0* 1 921 128.18 11.09 1 0.06 140.33
6. Surat 28 641 191 0* 1 833 139.17 20.47 0.38 0.12 160.14
7. Navsari 28 681 154 0* 1 836 79.53 7.72 0.47 0.04 87.76
8. Valsad 30 679 173 9 0 861 107.2 17.66 3.46 0 128.33
0.45
9. Palghar 73 911 336 91 3 1341 188.26 30.51 60.63 279.87
6
1
Thane 22 329 68 37 3 437 78.69 41.7 17.36 1.32 139.07
0.
11 Mumbai
2 2 1 0 0 3 3.7 0.9 0 0 4.6
. Sub
12
DNH 2 101 17 0 0 118 7.26 0.86 0 0 8.12
.
696 166 13 1022.3 188.8 138. 1434.2
Total 296 116 8878 84.09
3 2 7 7 8 906 8
100.
Percentage (%) 78 19 2 1 71 13 6 10 100.00
00

(iii) Table 2-8 indicating 'District wise Common Property Resources
affected'.

        District                CPR                                     Area of CPR (sqm)

Total Affected Extent of impact (%)

Ahmedaba Property on No area available
d Gauchar
Kheda Pond 157 140 89.17
School 288 72 25
Toilet of school 7 2 28.57
Toilet 21 21 100
Pond 200 150 75
Temple 182 182 100
Pond 252 33 13.1

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Panchayat plot - 2
NA NA NA
No
Anand Temple 90 81 90
Pond 100 80 80
Pond 200 120 60
School 360 72 20
Temple 75.845 75.845 100
Temple 152.625 152.625 100
Temple 20.14 20.14 100
Hanuman temple NA NA
Vadodara
School NA NA
Panchayat land - 3
NA NA
No
Property on gauchar
NA NA
land
Society common
NA NA
Plot
Graveyard - 2 No NA NA

Bharuch Property on NA NA
Government land
Mosque NA NA
Temple 2.7 2.7 100
Navsari
Temple 6.67 6.67 100
School 10000 500 5
Handpump 4 4 100
Water Tank 7.29 7.29 100
Valsad Water Storage Tank 6.384 6.384 100
Panchayat land -2
NA NA
No
Small portion of
NA NA
school
Palghar
Temple 120 120 100

(iv) Table 2-9 indicating 'Vulnerability Status of Project Affected
Households'.

                 Vulnerable                                           V u ln e ra b ility C a te g o r y
Elderly
Particula person 1
rs D e s titu Orpha
t Landles
Yes No BPL W HH Disable without ST SC c a te g oO th e rs
e n s
depend ry
ent
Ahmedaba 10
565 362 30 68 14 2 1 16 5 316 4 6
d 3
Kheda 240 543 84 38 23 11 2 7 0 18 55 2 0
10
Anand 324 577 120 24 2 20 10 3 5 19 11 2
8
119 10
Vadodara 634 171 41 4 2 7 9 71 130 19 75
4 5
Bharuch 351 665 71 138 20 2 0 5 5 51 37 6 16
Surat 56 584 6 3 1 0 0 0 1 14 29 2 0
Navsari 504 541 11 115 11 2 0 24 32 14 36 17 15

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2 0
110 58
Valsad 944 90 158 25 3 1 4 5 60 4 5
2 9
128 311 88
Palghar 99 93 15 5 3 6 4 136 32 6
6 0 7
16
Thane 279 887 36 8 0 0 0 3 19 32 7 8
8
DNH 79 58 1 3 2 0 1 1 0 51 19 1 0
Mumbai 0 0 0 0 0 0 0 0 0 0 0 0 0
526 962 74 10
Total 915 176 31 30 83 83 2097 869 133
2 2 2 5
Percentag 35. 0.5
64.6 14.10 17.39 3.34 0.57 1.58 1.58 39.85 16.52 2.00 2.53
e 4 9

(v) Table 2-10 indicating 'Project Affected Households with breakup
of Title Holders and Non - Title holders'.

PAH Ownership
District NTH Total
TH
Encroacher Squatter Tenant Others Total
Ahmedabad 284 39 563 21 21 644 928
Kheda 740 12 18 2 11 43 783
Anand 875 5 5 1 15 26 901
Vadodara 1378 296 17 79 58 450 1828
Bharuch 961 21 15 0 18 54 1015
Surat 584 13 17 25 0 55 639
Navsari 988 18 24 3 12 57 1045
Valsad 1621 54 220 148 3 425 2046
Palghar 2048 1197 353 771 27 2348 4396
Thane 717 175 58 182 33 449 1166
DNH 109 0 21 0 7 28 137

30. Thus, the above exercise undertaken by the State
Government by appointing M/s. Arcadis - a well known expert
in the field even though requirement of Chapter II about
Social Impact Assessment is dispensed with takes care of the
provisions of Chapter II specifying the purport and object
behind carrying out Social Impact Assessment. It is an
elaborate exercise undertaken by the agency appointed by the
State of Gujarat - M/s. Arcadis to carry an exhaustive survey
about likelihood of effect of acquisition and requisition of the
land for the project concerned. The same reveal that the

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State Government was alive and conscious of the situation
which may arise upon acquisition of the land for the project of
national importance and falling within category (j) of the
legislation policy enumerated in Section 10A of the Act, 2016.
As we have reproduced the Statement of Objects and Reasons
of the Bill, 2016 in earlier paragraphs it refers to the State of
Gujarat as an industrially progressive State and attracting
more and more investment and so as to provide all basic
facilities and infrastructure to the entrepreneurs and
considering stringent provisions of the existing Act, 2016 only
with a view to make procedural part of the land acquisition
smooth and less cumbersome the proposed bill was presented
to the State Assembly by enumerating adequate guidelines to
which also reference is made earlier.

We are therefore of the view that exemption
granted by the impugned amendment from the purview of the
said Chapters II and III of the Central Act, 2013 namely about
Social Impact Assessment and Food Security is therefore legal
and valid and cannot be said to be unconstitutional.

31. Moreover, the purpose for which Social Impact
Assessment is required to be carried out under the Central
Act of 2013, is otherwise being taken care of in view of the
project in question being linear in nature which also cannot
be lost sight of. Further, Section 9 of the Central Act of 2013
grants exemption from Social Impact Assessment where land
is proposed to be acquired invoking the urgency provisions
under Section 40. Thus, Section 40 of the Central Act, 2013
is inter linked with Section 9 of the Act.

32. In fact relying on provisions of Section 9 and Section 40

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of the Act of 2013 it was submitted by learned advocate for
the petitioners that linear projects cannot claim justification
from the exemption of Social Impact Assessment. So far as
the said contention of learned counsel for the petitioners
about exercise undertaken by State Government of exempting
Chapter II pertaining to determination of Social Impact
Assessment by taking recourse to proviso to Section 10A of
Central Legislation, 2013 is illegal inasmuch as proviso as
above only exempts linear projects and that also for the
purpose of Food Security Chapter III only and no exemption
could have been granted of Chapter II Social Impact
Assessment. We have carefully gone through provisions of
Section 9 and Section 40 vis-a-vis Section 10 of the Central
Act and the fact remains that powers to enact a law flows
from Entry No. 42 of the Concurrent List. The Union and
State are both empowered to enact law relating to
"acquisition and reacquisition" and the exercise of insertion
of Sections 10A and 31A are in direct conflict with the
provisions of Chapter II of the Act of 2013 and Sections 9 and
40 of the Act of 2013 but at the same time Section 9 refers to
Section 40 about invocation of the urgency clause and the
above inconsistencies were brought to the notice of the
Honourable the President of India and having gone through
such inconsistencies, assent is accorded. Therefore, the
contention about lack of power with the State Government to
exempt Chapter II pertaining to Social Impact Assessment by
insertion of Section 10A of the Amendment Act, 2016 pales
into insignificance. The above reasoning will also hold true
qua challenge to insertion of Section 31A wherein also
inconsistency was brought to the notice of the Honourable
President of India and assent was given. Therefore, the

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challenge to insertion of Article 10A as well as Article 31 A
also fails and is accordingly rejected.

33. In Mr. Joshi, learned advocate for the petitioner's
submission, no public purpose or public interest is served for
providing basic infrastructural facilities and because the Act
of 2013 has stringent provisions, it cannot be a ground to do
away with Social Impact Assessment. The inherent powers of
public purpose and eminent domain are embodied in Article
300A, and Entry 42 List III, "Acquisition and Requisitioning of
Property" which necessarily connotes that the acquisition and
requisitioning of property will be for a public use and for
compensation and whenever a person is deprived of his
property, the limitations as implied in Article 300A as well as
Entry 42 List III will come into the picture and the Court can
always examine the legality and validity of the legislation in
question. The arguments dealing with term "eminent
domain", has been considered extensively by the Apex Court
in the case of K.T. Plantations (supra) which paragraphs
have been reproduced hereinabove. Public purpose is,
therefore, a condition precedent, for invoking Article 300A.
The Statement of Objects and Reasons of the Act of 2016,
makes it clear that the aspect of public purpose,
compensation and the machinery of hearing the objections are
taken care of.

34. Hugo Grotius is the person behind the development of
Natural Law and the invention of the term 'eminent domain',
which means that public rights always overlap with the
private rights to property and in case of public utility, public
rights take precedence. There are two conditions to be taken

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care of while exercising the power of eminent domain; (i)
Public purpose and (ii) compensation from public funds be
made, if possible, to the one who has lost his right. In
K.T.Plantation Pvt. Ltd. (supra), one of the arguments
advanced was that the concept of eminent domain and its key
components be read into Article 300A and if a statute deprives
a person of his property unauthorizedly, without giving
adequate compensation, then the statute is liable to be
challenged as violative of Articles 14, 19 and 21 and on the
principle of rule of law, which is the basic structure of the
Constitution. It was further held that Article 300A proclaims
that no person can be deprived of his property save by
authority of law, meaning thereby that a person cannot be
deprived of his property merely by an executive fiat, without
any specific legal authority or without the support of law
made by a competent legislature. Answering the question,
whether the principles of eminent domain are completely
obliterated when a person is deprived of his property by the
authority of law under Article 300A of the Constitution, it was
held that deprivation of property within the meaning of Article
300A, generally speaking, must take place for public purpose
or public interest. Any law, which deprives a person of his
private property for private interest, will be unlawful, unfair
and undermines the rule of law and can be subjected to
judicial review and the question as to whether the purpose is
primarily public or private, has to be decided by the
legislature, which of course should be made known. It was
further held that the concept of public purpose has been given
fairly expansive meaning which has to be justified upon the
purpose and object of statute and the policy of the legislation
and public purpose is, therefore, a condition precedent, for

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invoking Article 300A. Thus, the power of eminent domain
being inherent in the Government, can be exercised in public
interest and for public purpose.

35. Moreover, except for Chapters II and III of the Central
Act, 2013, all the remaining provisions thereof, particularly
compensation, rehabilitation and resettlement are applicable
to the acquisition in question whereby the landowners will not
be deprived of just, fair and reasonable compensation as
provided in the 1st Schedule as well as the elements of
Rehabilitation Resettlement as provided in the 2 nd Schedule
to the Central Act, 2013. Considering the law laid down by
the apex court in the case of Javed (supra), paragraphs no.
3, 12 and 14 and the decision of the Hon'ble Supreme Court
in the Triple Talaq case rendered in Shayara Bano (supra),
the contention that the legislation is manifestly arbitrary
cannot be accepted. Manifest arbitrariness must be something
done by the Legislature capriciously, irrationally, excessively,
disproportionately and/or without adequate determining
principles. No such ground is made out in the present case so
as to lay down that the Act is manifestly arbitrary. The
decision in the case of E. Aboobacker (supra) shall not be
applicable on the facts of the present case.

36. Even Section 105 of the Central Act, 2013 provides that
the Act is not to apply in certain cases or to apply with certain
modifications and such enactments, 13 in number, are
inserted in the Fourth Schedule, which, are pertaining to
establishment and development of basic infrastructure
whether industrial or otherwise and of national importance
which includes the Metro Railways (Construction and Works)

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Act, 1978, The National Highways Act, 1956, The Petroleum
and Minerals Guidelines (Acquisition of Right of User in Land)
Act, 1962 and Railways Act, 1989. The present project -
Mumbai Ahmedabad High Speed Rail Project is linear in
nature and also for industrial growth and other ancilliary
benefits including manufacturing of various components and
generating employment needs a special treatment and timely
execution of the project undertaken by JICA.

37. The present impugned Act, 2016 of the State
Government in our view is akin to legislations included in
sub-section (3) of Section 105 of the Central Act of 2013 read
with Order No.2368(e) dated 28.08.2015 issued under Section
113 of the Act of 2013 and Removal of Difficulties
cumulatively provide to the effect that only the provisions
relating to the determination of compensation in accordance
with the First Schedule, rehabilitation and resettlement in
accordance with the Second Schedule and infrastructural
amenities in accordance with the Third Schedule shall apply
to the cases of land acquisition under the aforesaid 13
enactments of the Fourth Schedule. This means that the
provisions of Chapter II relating to "Determination of Social
Impact and public purposes" and Chapter III relating to
"Special Provisions to safe guard Food Security" shall not
apply to the cases of the land acquisition under the aforesaid
legislations. The Parliament has chosen not to make
applicable the provisions of the Central Act of 2013 including
the provisions of Chapter II and Chapter III thereof to the
acquisition of lands for the Projects which are linear in nature
under various enactments referred to above. We do not find
the State Legislature in error while exempting the Projects

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which are not only linear in nature, but are also very much
similar to the Projects contemplated under the aforesaid
legislations, from the provisions of Chapter II and Chapter III
of the Central Act of 2013. The amendment of 2016 of State
Government charters on the same path adopted by the
Central legislation 2013 for exempting about 13 legislations
enumerated in Schedule 4 to sub-section (3) of Section 105 of
the Act, 2013.

38. It is apparent on reading Section 3(e)(iv) of the Act of
2013 which is reproduced in the earlier paragraphs, that in
relation to acquisition of land for public purpose in more than
one State, the Central Government in consultation with the
State Government is the appropriate Government. Therefore,
it is not the Central Government alone. We have been
persuaded to accept Mr. Trivedi's submission that this does
not and cannot debar the applicability of Section 10A of the
State Act, 2016 to the acquisition of lands situated in the
State of Gujarat. However, the argument canvassed about
appropriate government in case when the land is acquired in
more than one State is the concerned State Government is
also of no consequence in view of the entrustment and
ratification under Article 258 of Constitution of India of
executive action of the State Government in issuing
notification under Section 11(1) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 and all such
actions are therefore legal and valid. The project in question
is admittedly an infrastructural project as referred to in
Section 10A.

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39. About fair compensation and requirement of following
provisions of Section 26 of the Act, 2013, we have carefully
gone through the formula for computation of compensation as
found in the affidavit-in-reply and emphasised by learned
Advocate General that the notification dated 11.09.2018 takes
care of just and fair compensation. It cannot be termed as
unfair, unjust and opaque procedure. What is awarded in case
of acquisition of land of adjoining area by other authorities
under Railways Act or The National Highways Act, 1956 can
be presented to concerned authorities in case if the
compensation of land so awarded by the authorities under the
Gujarat Amendment Act, 2016 and Act of 2013 is found
inadequate to higher authorities in accordance with the
provisions of Section 64 namely reference to authorities and
also under Section 74 of the Constitution of India, a provision
for appeal to the High Court is provided under the Act.
Merely because one of the three options provided by sub-
section (1) of Section 26 is not available, the petitioners would
not lose out thereupon because of the usage of the words
"whichever is higher" and the market value can very well be
determined on the basis of the available options. Along with
all provisos to Section 26, the section is to be read
comprehensively.

40. The State Government has issued Government
Resolution, dated 11.9.2018, inter alia, clarifying the issues as
regards the parameters to be observed while determining the
compensation under the Central Act of 2013. By way of
Government Resolution No.LAQ/2018/1976/GH dated
11.9.2018, the State Government has clarified that the
farmers who are willing to offer their lands with consent as

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contained in the Government Resolution dated 4.4.2018 of the
Revenue Department and if the acquiring body is ready and
willing to pay compensation by adopting 'indexation
formula', then in those cases, indexation formula be applied
to the Annual Statement of Rates, 2011 i.e. 2011 Jantri. The
aforesaid indexation formula is carved out from the "Cost
Inflation Index (CII)" notified by the Central Government for
the F.Y. 2018-19 at Rs.280, with the Base Year 2001-02 (with
Cost Inflation Index at Rs.100) vide notification No. S.O.1790
(E) dated 05.06.2017. As we have seen from the hypothetical
situation given by the respondents, if the aforesaid Cost
Inflation Index formula is applied to Annual Statement of
Rates, the farmers will be getting compensation
approximately 50-60% on higher side. At the cost of
repetition, we reproduce hereinbelow the same:

Suppose, the total Jantri of the parcel of land is
Rs.10,00,000/- in the Financial Year 2011-12, then
in that case, its present day i.e. 2018-2019 value i.e.
Compensation amount can be worked out as under:

  Indexation of FY 2018-                                         Rs.280
19 (A) (which value was taken as
Rs.100 in the year 2001-
02)
Indexation of FY 2011- Rs.184
12 (B) (which value was taken as
Rs.100 in the year 2001-
02)
Jantri Value of FY Rs.10,00,000/-
2011-12 (C)
Compensation to be
awarded 10,00,000 x 280
(C X A B) Rs.15,21,739/-
180
Percentage Increase 52.17%

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40.1 Further, as far as the contention regarding non-revision
of jantri rates is concerned, it is required to be borne in mind
that the annual survey of jantri rates is basically for the
purpose of determination of market value of the property
under the Gujarat Stamp Act, 1958 and rules made
thereunder. Non revision of ASR itself will not be a ground to
hold that compensation will be inadequate, unfair and unjust.

On the contrary various resolutions passed from time to time
by the Department of Revenue, State of Gujarat reveal that
pro-rata increase is given in the ASR. In short, non-revision of
ASR from 2011 cannot be a ground to declare the Act as
unconstitutional. It is not necessary that on absence of
revision of ASRs, the notification under Section 11 should
fail.

41. With regard to the contention that initiation of land
acquisition process was without revising and updating the
market value of the lands in question as mandated by Section
26 of the Central Act, 2013 is concerned, it is required to be
seen that sub-section (1) of Section 26 of the Central Act of
2013, read with Explanation 1 thereto provides that in
assessing and determining the market value of the land,
any of the criteria as indicated in clause (a), clause (b)
or clause (c) may be adopted. If we read the entire section,
it is quite clear that the Act provides for sufficient guidelines
to be adopted for assessing and determining the market value
of land to be acquired. It is not necessary for the land
acquiring authorities to follow all three criterias as indicated
in the clauses for determination of market value, if but, it is
noticed that according to either of the criterias, the market
vaule is higher then they can adopt that particular criteria.

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42. Moreover, so far as section 32A of the Stamp Act is
concerned, it provides for determination of market value of
property according to which, when any instrument or
conveyance, etc. is produced before the authority for
registration, and if registering authority has reason to believe
that the consideration set forth therein is not approximate to
the market value of the property, then in that case, same is to
be referred to the Collector of the District where the property
is situated for determining the true market value of such
property and the appropriate duty payable on the instrument.
The said challenge of the petitioners does not hold any
ground.

43. Mr. A.J. Yagnik, learned counsel for the petitioners has
not pressed amendment of Section 40A of 30 of 2013 of
Gujarat Amendment Act, 2016 whereby in the principle Act, in
sub-section (2) of Section 40, after the words ""approval of
Parliament", the words "or to comply with the directions given
by the Central Government to the State Government" shall be
added is ultra vires to Section 40 of the Act, 2013.

44. One of the contentions of learned advocate for the
petitioners about consent not obtained of Governor but of
Government is a printer's devil so far as the book from which
reference is made. In fact the official copy of the Constitution
of India as provided in the gazette to which we have already
made reference in earlier paragraph, mentions assent of
Government and not of Governor in Article 258 of the
Constitution of India and in the facts of this case consent of

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Government of Gujarat was obtained before issuance of
notification by the President of India in exercise of powers
under Article 254 entrusting executive functions of Central
Government upon authorities of the State Government.

45. So far as the contention raised that what was sent for
the assent of the President was a bill and that Article 254
provides that what is to be sent for the assent of the President
is the "law" and therefore in absence of a law being sent for
assent, the entire exercise of the amendment is bad is
concerned, in view of the decisions of the Apex Court in the
cases of Smt. Salubhai Ramchandra and Others (supra)
as well as Kameshwar Singh (supra), the said contention is
misconceived.

46. With regard to challenge of the vice of excessive
legislation, it is required to be noted that there are sufficient
guidelines discerning from Section 10A itself. Sections 105
and 113 of the Act of 2013 and the Removal of Difficulties
Order, when read in the context of the Statement of Objects
and Reasons of the Amending Act, lay down the guiding
principles which need to be followed in executing projects
which are linear in nature. Delegation of a legislative function
is valid as Section 10A of the Act of 2016 itself says what the
legislative policy envisages. Under Section 10A of the Act of
2016, it is open for the State to issue an exemption, and it
cannot be said that the project is only of the Central
Government. Requiring/Acquiring body consists of the State
Government. The project therefore is equally of the State and
therefore exemptions from the provisions viz-a-viz the
territories of Gujarat can be granted. The contention of the

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petitioners that under Article 254 only the law and not the bill
can be sent for the assessment is misconceived.

47. It is trite that the State Act was repugnant to the Central
Act, however, it cannot be said that the law would not prevail
as it was repugnant because once reserved for consideration
and given an assent such a repugnant law would prevail. The
Statement of Objects and Reasons when read give an outline
as to what the law needs to formulate. An edifice is created
based on which the law is structured. The legislative function
so performed cannot be termed as bad on the principle of
excessive delegation. In view of the above, Section 10A of the
State Act, 2016 cannot be said to be suffering from the vice of
excessive delegation and also cannot be said to be delegating
the essential legislative function.

48. In this regard, we are of the view that the landmark
decision in the case of In Re: The Delhi Laws Act (supra)
wherein the question having arose therein was with regard to
the limits of delegation and the grounds for the same was
explained, is required to be considered minutely. In Delhi
Laws Act (supra), which was Presidential Reference under
Article 143 of the Constitution of India, following three
questions were referred to the Supreme Court of India for its
consideration and report:

"1 Was section 7 of the Delhi Laws Act, 1912, or
any of the provisions thereof and in what particular or
particulars or to what extent ultra vires the
Legislature which passed the said Act ?

2 Was the Ajmer Merwara (Extension of Laws)
Act, 1947, or any of the provisions thereof and in

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what particular or particulars or to what extent `ultra
vires' the Legislature which passed the said Act?

3 Is section 2 of the Part C States (Laws) Act,
1950, or any of the provisions thereof and in what
particular or particulars or to what extent ultra vires
the Parliament ?"

48.1 As per learned Chief Justice Kania, upon discussion of
Government of India Act, 1915, 1935 as amended by the
Indian Independence Act, 1947 and referring to a basic
difference between the Constitutions of the United States and
Britain found at page 15 of the book, English Administrative
Law by Sir Cecil Cart, and Article 149 following Vol. VI of
Halsbury's Laws of England, and distribution of legislative
powers between the center and the different provinces in the
context of case law cited by learned counsel on decision taken
by the Privy Council and Supreme Courts of Canada and
Australia in the case of `Queen v. Burah' 5 IA 178, and
Council of the Governor General of India for making laws and
regulations was an act to remove the Garo Hills from the
jurisdiction of tribunals established under the General
Regulations and acts passed by any legislation by British India
make various provisions, noticed that the decisions carefully
and deliberately did not endorse the contention that the
power of delegation was within powers of legislation.

48.2 Learned Judge also referred to decision in the case of
`King Emperor v. Benoari Lal Sarma', 72 I.A. 57 where
the question arose about special Criminal Courts Ordinance II
1942 under the powers vested in Governor General on the
delegation of an emergency on the outbreak of war and the
validity of such Ordinance was challenged, which was

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observed by their Lordships in the above decision that the
Governor General himself must discharge the duty of
legislation and cannot transfer it to other authorities. But the
Governor General had not delegated his legislative powers at
all. It was considered to be uncommon arrangement by which
the local application of the provision of a statute is determined
by the judgment of a local administrative body as to its
necessity, and their Lordships disagreed with the majority
view of the Federal Court that what was done was delegation
of legislative function. The decision in the case of `Russell v.
The Queen', 1882(7) AC 829 was referred. That another
decision in the case of `The Queen v. Burah', 5 IA 178 was
also quoted. In para 17 of judgment in Delhi Laws Case,
learned Chief Justice held that all those decisions instead of
supporting the proposition urged by the Attorney-General
impliedly that contention is negatived viz. the contention of
learned Attorney General that power of delegation was
contained in the power of legislation. Learned Chief Justice
also referred to decision in the case of `Hodge v. The
Queen', (1884) 9 AC 117 wherein appeal from the Court of
Appeal, Ontario, Canada, a question about the validity of the
Liquor Licences Act arose. Learned Chief Justice also
referred to certain decisions of Supreme Court of Australia in
the case of `Victoria Stevedoring and General
Contracting Company v. Dignan', 46 C.L.R. 73, where the
question was whether delegation of legislative power was
according to the Constitution came to be examined by the
High Court of Australia. After considering Canadian and
Australian constitutions and decisions of the Privy Council,
learned Chief Justice also noticed statutory construction

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authored by Crawford so as to examine position according to
the USA Constitution and referred to case laws of `Hampton
Co. v. United States', (1928) 276 US 394, wherein
earlier decision of the Supreme Court of Ohio in Cincinnati
W Z.R. Co. v. Clinton County Commissioners' , was
referred to wherein it was held that, "The true distinction
therefore is between the delegation of power to make the law
which necessarily involves a discretion as to what it shall be
and conferring an authority or discretion as to its execution to
be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made.

48.3 Further, what was stated in `Locke's Appeal', (1983)
72 Pa. 491, was referred to and also famous quote of Chief
Justice Hughes in the case of Panama Refining Co. v. Ryan,
293 US 388, and also syllogism of Prof. Cushman's, and in
paras 33 and 35 held as under:

"33 The complexity of this question of delegation of
power and the consideration of the various decisions
in which its application has led to the support or
invalidation of Acts has been somewhat aptly put by
Schwartz on American Administrative Law. After
quoting from Wayman v. Southend, (1825) 10 Wheat
1, the observations of Marshall C.J. that the line has
not been exactly drawn which separates those
important subjects which must be entirely regulated
by the legislature itself from those of less interest in
which a general provision may be made and power
given to those who are to act under such general
provision to fill up details, the author points out that
the resulting judicial dilemma, when the American
courts finally were squarely confronted with
delegation cases, was resolved by the judicious choice
of words to describe the word "delegated power". The
authority transferred was, in Justice Holmes'

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felicitous phrase, "softened by a quasi", and the courts
were thus able to grant the fact of delegated
legislation and still to deny the name.

"This result is well put in Prof. Cushman's syllogism:

"Major premise:

                  Legislative    power    cannot             be
constitutionally delegated by
Congress.

Minor premise:

It is essential that certain powers be
delegated to administrative officers
and regulatory commissions.

Conclusions:

Therefore the powers thus delegated
are not legislative powers. They are
instead administrative or quasi-
legislative powers."

35. A fair and close reading and analysis of all these
decisions of the Privy Council, the judgments of the
Supreme Courts of Canada and Australia without
stretching and straining the words and expressions
used therein lead me. to the conclusion that while a
legislature, as a part of its legislative functions, can
confer powers to make rules and regulations for
carrying the enactment into operation and effect, and
while a legislature has power to lay down the policy
and principles providing the rule of conduct, and
while it may further provide that on certain data or
facts being found and ascertained by an executive
authority, the operation of the Act can be extended to
certain areas or may be brought into force on such
determination which is described as conditional
legislation, the power to delegate legislative functions
generally is not warranted under the Constitution of
India at any stage. In cases of emergency, like war
where a large latitude has to be necessarily left in the
matter of enforcing regulations to the executive, the
scope of the power to make regulations is very wide,

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but. even. in those cases the suggestion that there
was delegation of "legislative functions" has been
repudiated. Similarly, varying according to the
necessities of the case and the nature of the
legislation, the doctrine of conditional legislation or
subsidiary legislation or ancillary legislation is equally
upheld under all the Constitutions. In my opinion,
therefore, the contention urged by the learned
Attorney-General that legislative power carries with it
a general power to delegate legislative functions, so
that the legislature may not define its policy at all and
may lay down no rule of conduct but that whole thing
may be left either to the executive authority or
administrative or other body, is unsound and not
supported by the authorities on which he relies. I do
not think that apart from the sovereign character of
792 the British Parliament which is established as a
matter of convention and whose powers are also
therefore absolute and unlimited, in any legislature of
any other country such general powers of delegation
as claimed by the Attorney General for a legislature,
have been recognised or permitted.

48.4 However, learned Chief Justice answered question
No.1 that Section 7 of the Delhi Laws Act contains an entirely
different quality of power from the quality of power conferred
by sections 8 and 9 of Act XXII of 1869 and to the extent
Section 7 of the Delhi Laws Act permits the Central Executive
Government to apply any law passed by the provincial
legislature to the province of Delhi the same is ultra vires the
Central Legislature. To that extent the Central Legislature
abdicated its function, and therefore, the Act to the extent is
invalid and on the same logic and rationale question 2 of
Ajmer Merwara Act, 1947 was also held ultra vires and lastly
question No.3 so far as Section 7 permits the Central
Government to extent laws made by any legislature on Part A
State to the Province of Delhi, the Section is held ultra vires.

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48.5 So is the case with the historic dissent of Justice V.D.
Mahajan. As per Justice Mahajan, referring to all three
questions it was held in para 205 that, by enacting section 7
the legislature virtually abdicated its legislative power in
favour of the executive and that was not warranted by the
Indian Councils Act, 1861, or by any decision of the Privy
Council or on the basis of any legislative practice. Therefore,
Section 7 was ultra vires the Indian Councils Act, 1861. On
two main premises that the legislatures not competent to
make laws for Delhi and it clothed the executive with co-
extensive legislative authority in the matter of modification of
laws made by legislative bodies in India, the second question
about Section 2 of the Ajmer-Merwara (Extension of Laws)
Act, 1947, which was also held to be ultra vires for the
reasons given for holding Section 7 of the Delhi Laws Act as
ultra vires the Constitution by applying same rationale. The
third question that Section 2 of the Part C States (Laws) Act,
1950, was held to be ultra vires to the Constitution.

48.6 As per majority view, so far as Section 7 of the Delhi
Laws Act, 1912 is concerned, 5 learned Judges have held the
aforesaid provision to be intra vires and 2 judges have held
the same to be ultra vires. As far as Section 2 of the Ajmer-
Merwara (Extension of Laws) Act, 1947 is concerned, 4
learned Judges have held the aforesaid provision to be intra
vires and 3 learned Judges have held the same to be ultra
vires.

48.7 After addressing three questions which fell into
consideration pursuant to Presidential Reference while
dealing with these questions, three possible answers were

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considered by Justice Fazl Ali viz. (1) A legislature which is
sovereign in a particular field has unlimited power of
delegation and the content of its power must necessarily
include the power to delegate legislative functions; (2)
Delegated legislation is permissible only within certain limits;
and (3) Delegated legislation is not permissible at all by
reason of certain principles of law which are well-known and
well-recognised. Justice Fazl Ali also considered all the above
decisions and referred to classified instances of delegation
upheld in America under the following 8 heads:

"1 Delegation of power to determine facts or
conditions on which operation of statute is
contingent.

2 Delegation of non-legislative or administrative
functions.

3 Delegation of power to make administrative
rules and regulations.

4 Delegation to municipalities and local bodies.
5 Delegation by Congress to territorial legislature
or commission.

6 Delegation to private or non-official persons or
corporations.

     7       Vesting discretion in judiciary.
8 Adopting law or rule of another jurisdiction."

48.8 Ultimately, Justice Fazl Ali, in para 74, held as under:

"74 The conclusions at which I have arrived so far
may now be summed up:

(1) The legislature must normally discharge its
primary legislative function itself and not through
others. (2) Once it is established that it has sovereign
powers within a certain sphere, it must follow as a
corollary that it is free to legislate within that sphere
in any way which appears to it to be the best way to
give effect to its intention and policy in making a

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particular law, and that it may utilize any outside
agency to any extent it finds necessary for doing
things which it is unable to do itself or finds it
inconvenient to do. In other words, it can do
everything which is ancillary to and necessary for the
full and effective exercise of its power of legislation.
(3) It cannot abdicate its legislative functions, and
therefore while entrusting power to an outside 831
agency, it must see that such agency, acts as a
subordinate authority and does not become a parallel
legislature. (4) The doctrine of separation of powers
and the judicial interpretation it has received in
America ever since the American Constitution was
framed, enables the American courts to check undue
and excessive delegation but the courts of this
country are not committed to that doctrine and
cannot apply it in the same way as it has been applied
in America. Therefore, there are only two main checks
in this country on the power of the legislature to
delegate, these being its good sense and the principle
that it should not cross the line beyond which
delegation amounts to "abdication and self-
effacement".

48.9 In para 90, Justice Fazl Ali held as under:

"90. Before I conclude, I wish to make a few general
observations here on the subject of "delegated
legislation" and its limits, using the expression once
again in the popular sense. This form of legislation
has become a present-day necessity, and it has come
to stay - it is both inevitable and indispensable. The
legislature has now to make so many laws that it has
no time to devote to all the legislative details, and
sometimes the subject on which it has to legislate is
of such a technical nature that all it can do is to state
the broad principles and leave the details to be
worked out by those who are more familiar with the
subject. Again, when complex schemes of reform are
to be the subject of legislation, it is difficult to bring
out a selfcontained and complete Act straightaway,
since it is not possible to foresee all the contingencies
and envisage all the local requirements for which
provision is to be made. Thus, some degree of

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flexibility becomes necessary, so as to permit
constant adaptation to unknown future conditions
without the necessity of having to amend the law
again and again. The advantage of such a course is
that it enables the delegate authority to consult
interests likely to be affected by a particular law,
make actual experiments when necessary, and utilize
the results of its investigations and experiments in
the best way possible. There may also arise
emergencies and urgent situations requiring prompt
action and the entrustment of large powers to
authorities who have to deal with the various
situations as they arise. There are examples in the
Statute books of England and other countries, of
laws, a reference to which will be sufficient to justify
the need for delegated legislation. The British Gold
Standard (Amendment) Act, 1931, empowered the
Treasury to make and from time to time vary orders
authorising the taking of such measures in relation to
the Exchanges and otherwise as they may consider
expedient for meeting difficulties arising in
connection with the suspension of the Gold Standard.

The National Economy Act, 1931, of England,
empowered "His Majesty to make Orders in Council
effecting economies in respect of the services
specified in the schedule" and proved that the
Minister designated in any such Order might make
regulations for giving effect to the Order. The Food-

stuffs (Prevention of Exploitation) Act, 1931,
authorised the Board of Trade to take exceptional
measures for preventing or remedying shortages in
certain articles of food and drink. It is obvious that to
achieve the objects which were intended to be
achieved by these Acts, they could not have been
framed in any other way than that in which they were
framed. I have referred to these instances to show
that the complexity of modern administration and the
expansion of the functions of the State to the
economic and social sphere have rendered it
necessary to resort to new forms of legislation and to
give wide powers to various authorities on suitable
occasions. But while emphasizing that delegation is in
these days inevitable, one should not omit to refer to
the dangers attendant upon the injudicious exercise
of the power of delegation by the legislature. The
dangers involved in defining the delegated power so

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loosely that the area it is intended to cover cannot be
clearly ascertained, and in giving wide delegated
powers to executive authorities and at the same time
depriving a citizen of protection by the courts against
harsh and unreasonable exercise of powers, are too
obvious to require elaborate discussion."

48.10 As per Justice Patanjali Shastri, the answer was
given to three questions, as reflected in para 130, which
reads as under:

"130 In the result, I hold that section 7 of the Delhi
Laws Act, 1912, section 2 of the Ajmer-Merwara
(Extension of Laws) Act, 1947, and section 2 of the
Part C States (Laws) Act, 1950, are in their entirety
constitutional and valid and I answer the reference
accordingly."

48.11 As per Justice Mukherjea, all three questions were
dealt in detail and in para 276 it is held as under:

"276 The result is that, in my opinion, the answer to
the three questions referred to us would be as follows
: (1) Section 7 of the Delhi Laws Act, 1912 is in its
entirety `ultra vires' the legislature which passed it
no portion of it is invalid. (2) The Ajmer0Merwara
(Extension of Laws) Act, 1947 or any of its provisions
are not `ultra vires' the legislature which passed the
Act. (3) Section 2 of Part C States (Laws) Act, 1950,
is `ultra vires' to the extent that it empowers the
Central Government to extend to Part C States laws
which are in force in Part A States, even though such
laws might conflict with or affect laws already in
existence in the area to which they are extended. The
power given by the last portion of the section to make
provisions in any extended enactment for the repeal
or amendment of any corresponding provincial law,
which is for the time being applicable to that Part C
States, is, therefore, illegal and `ultra vires'.

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48.12 Justice Das in para 348 answered all the three
questions, which read as under:

"348 The result, therefore, is that I answer the
question s as follows:

`Question ' 1 : Section 7 of the Delhi Laws Act, 1912
was valid and no part thereof was `ultra vires' the
legislature that passed it.

`Question' 2 : Ajmer-Merwara (Extension of Laws)
Act, 1947 was valid and no part thereof was `ultra
vires' the legislature that passed it.

`Question' 3 : Section 2 of the Part C States (Laws)
Act, 1950 is valid and no part thereof is `ultra vires'
the Parliament."

48.13 As noted above about various opinions given by
learned Judges, it will not be out of place to reproduce the
observations of Justice Bose in paragraph 384 wherein his
Lordship has succinctly opined about difficulty to deduce any
logical principle from catena of decisions. The said
observations read as under:

"384. An anxious scrutiny of all the
many authorities and books which were
referred to the arguments, and of the
decisions which I have analysed here, leads
me to the conclusion that it is difficult to
deduce any logical principle from them. In
almost every case the decision has been ad
hoc and in order to meet the exigencies of the
case then before them, judges have placed
their own meaning on words and phrases
which might otherwise have embodies a
principle of general application. I have
therefore endeavoured as far as I possibly
could to avoid the use of these disputable
terms and have preferred to accept the legacy
of the past and deal with this question in a

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practical way. My conclusion is that the Indian
Parliament can legislate alone the lines of The
Queen v. Burah, that is to say, it can leave to
another person or body the introduction or
application of laws which are or may be in
existence at that time in any part of India
which is subject to the legislative control of
Parliament, whether those laws were enacted
by Parliament or by a State Legislature set by
the Constitution. That has been the practice in
the past. It has weighty reasons of practical
nature to support it and it does not seem to
have been abrogated by the Constitution."

[Emphasis Supplied]

48.14 Justice Bose, thereafter, in para 390 answered all
the three questions, which read as under:

"390 My answers to the reference are as follows : (1)
Section 7 of the Delhi Laws Act, 1912, is `intra vires'
of the Legislature which passed it and so also section
2 of the Ajmer-Merwara (Extension of Laws) Act,
1947. (2) Section 2 of the Part C States (Laws) Act,
1950, is also `intra vires' except for the concluding
sentence which runs as follows:

"and provision may be made in any enactment
so extended for the repeal or amendment of any
corresponding law (other than a Central Act) which is
for the time being applicable to that Part C State".

In my judgment, this portion is `ultra vires' but as it can
be separated from the rest of the Act, the remainder is
good."

48.14 We apply the above ratio as laid down in the case
of In Re: The Delhi Laws Act (supra) decided by the Apex
Court and we hold that the Gujarat Amendment Act of 2016
does not suffer from vice of excessive delegation and

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therefore cannot be termed as unconstitutional and/or
arbitrary exercise of powers.

48.15 Inter alia, it was contended that even if delegation
is valid, exercise of powers under such delegation is arbitrary
but once we have held that assent is given under Article 201
keeping in mind inconsistencies so placed before the
Honourable President of India as required under Article
254(2) of the Constitution of India and subsequent
entrustment of executive functions under Article 258 of the
Constitution of India upon state authorities on issuance of
notification by the state authorities subsequent thereto
coupled with exercise undertaken by M/s. Arcadis of Social
Impact Assessment and PESA and considering number of
minimum displacement of persons and property affected by
determining criteria of computation of compensation and
rehabilitation and resettlement is to be undertaken in
accordance with law, we find that there is no arbitrary
exercise of powers.

49. During the course of arguments, our attention was
drawn to para 2.0 which as the heading "Land Acquisition and
Resettlement Practice" suggests that various alternatives
have been explored from the beginning by the State for
finalization of alignment. One of the prime criteria of
selection of final alignment has been least resettlement
impacts particularly on residential structures. A table
showing the distribution of land area by ownership and a
table of detail of structures identified comprising of shops,
cattle sheds has been shown in such a compilation. The
contentions of the petitioners that the provisions of PESA is

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given a go-by cannot sustain in view of the fact that
appropriate level consultation before making acquisition of
the land in the scheduled area for development purpose is
being undertaken. The same is borne out from page 81 of the
compilation. Further, learned Advocate General has also
assured that the State is going to follow all provisions right
from Sections 16 to 31 of the Act of 2013.

50. So far as the decision in the case of Consumer Action
Group (supra) as relied by learned advocate for the
petitioners is concerned, we have found that the reliance on
paragraph 14 would not be applicable on the facts of the
present case in view of the fact that the same are contentions
raised by learned counsel in the case of Harishankar Bagla
and Another (supra). Similarly, in the case of Basantilal
Banarsilal (supra) as cited by learned advocate for the
petitioners, it is held that President while giving assent
should apply his mind to the local conditions prevailing in a
particular State and if he is satisfied that judging the local
conditions a particular State may be permitted to make a
provision of law different from the provision made by
Parliament. However, the decision in the case of Kaiser-I-
Hind (supra) states that local conditions may be one of the
factors and cannot be termed as essential ingredient.

51. Having elaborately discussed the provisions of law and
the legislations including the amended act, we are of the
considered opinion that the challenge to validity of Section
10A read with Section 2(1) of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement [Gujarat Amendment] Act, 2016 cannot be

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accepted and held to be unconstitutional or illegal. Further,
the preliminary notification issued under Section 11(1) of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Gujarat) Act,
2013 by the respondent State cannot be termed to be in
contravention of Section 26 of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 and the preliminary notification dated
9th April 2018 issued under Section 11(1) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 by the respondent
State is held to be issued by the appropriate government, in
the present case the State Government. Further the
notifications issued by respondent State under Section 10(A)
read with Section 2(1) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement [Gujarat Amendment] Act, 2016 and notification
issued under Article 258(1) dated 08.10.2018 by the
respondent cannot be held to be unconstitutional. The other
reliefs of following mandate of Section 26 of the Act, 2013
also stands rejected keeping it open for them to raise the
same before the competent appellate authorities. Thus, we do
not find that any of the prayer clauses deserve consideration
by this Court and we answer them accordingly.

52. For the foregoing reasons, the petitions are bereft of
merit and are accordingly required to be dismissed.
Accordingly, petitions are dismissed. However, it is clarified
that this judgement shall have no bearing on future issues
which may arise about adequacy of compensation. Further,
the State Government, is expected to keep in mind that the

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most important factor which should weigh with the authorities
is about fair, adequate and reasonable compensation to be
paid by following a transparent procedure under the
provisions of the Amended Act read with Central Act, 2013
when the land is acquired for public purpose keeping in mind
provisions of Article 300A of Constitution of India and further
to be borne in mind that such compensation is paid in respect
of similar types of land situated in the immediate adjoining
areas when it was acquired by National Highways Authority
or any such Central or State Government authorities. Civil
Applications for joining party are rejected. No costs.

sd/-

(ANANT S. DAVE, J)

sd/-

(BIREN VAISHNAV, J)
DIVYA

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