Judgment:
A.K. Sikri, J.
1. These writ petitions raise an important question of law having far-reaching consequences. The issue arises in relation to the acquisition of land for a public purpose, namely, Prem Nagar Station, which is part of Mass Rapid Transit System (in short 'the MRTS'), a Project undertaken by the Delhi Metro Rail Corporation (in short 'the DMRC'). There is no denying the fact that in Delhi land can be acquired by the Government, for public purpose, under the provisions of the Land Acquisition Act, 1894 (in short 'the LA Act'). However, the Parliament, way back in the year 1978, also enacted another Legislation, namely, the Metro Railways (Construction of Works) Act, 1978 (hereinafter referred to as 'the Metro Railways Act') and, this Act also contains the provisions for acquisition of land required for specific purpose viz. for the construction of Metro Railways or other works connected therewith. In the present case, land is acquired under the provisions of the LA Act for MRTS at the request of DMRC. The contention of the petitioners is that in view of the provisions of the Metro Railways Act which is extended to metropolitan city of Delhi as well, land for the purpose of Metro Railway could be acquired only under this Act and not under the LA Act. It is this question which has fallen for consideration in these proceedings.
2. Before embarking on the discussion on this vital question, it may be necessary to take stock of the background facts. For the sake of convenience facts of WP (C) No. 8440/2003 are noted.
3. The Petitioners are the owners of the built up properties and land underneath situate in Khasra No. 82/16 of village Hastsal, Delhi, which is now known as Prem Nagar. Admittedly, it is heavily built and thickly populated colony.
4. It is a matter of common knowledge that due to ever increasing demand of urban population in Delhi the existing service transport facilities have been found to be thoroughly inadequate. This problem, thereforee, had been receiving the attention of the Government. Various options were suggested and deliberated upon, to overcome this difficulty and to mitigate the suffering of the commuting population, from time to time. Ultimately the Government approved the MRTS Project. To undertake this project the DMRC was incorporated as a company under the Indian Companies Act, 1956. Immediately it started the project in right earnestness. It is not necessary to state in detail this project. The petitioners are candid in accepting the importance of this project for the people of Delhi. The project is envisaged in various stages. First stage of the project was from Shahdara to Tis Hazari. When this project was almost over and was to be opened for the public carriage of passengers in the year 2002, Legislature deemed it necessary to make legal provisions for the operation and maintenance of the metro railway in Delhi. To achieve this object, the President promulgated the Delhi Metro Railway (Operation and Maintenance) Ordinance, 2002 on 29th October, 2002. This Ordinance was replaced by an Act of Parliament, i.e. the Delhi Metro Railway (Operation and Maintenance) Act, 2002. Provisions of the Metro Railways Act, 1978 are also made applicable to the metropolitan city of Delhi.
5. Whenever land is required for the purpose of MRTS Project the same has been acquired by the land acquisition authority from time to time and put at the disposal of the DMRC. In fact, in accordance with the project and planning undertaken for this purpose, whenever a particular piece of land at a particular place is required by the DMRC, it sends a requisition to the land acquiring authority and on such request being made the land is acquired and put at the disposal of the DMRC. It was accepted at the Bar that every time the machinery under the LA Act is put into motion and the provisions of the Metro Railways Act have never been invoked. Acquisition in the instant case is no exception.
6. In the present case, the respondent No. 3 issued the notification under Sections 4, 17(1) and 17(4) of the LA Act dated 16th October, 2003 for acquiring the land situate at Khasra No. 82/16 min., village Hastsal, Delhi for public purpose, namely, construction of MRTS Station at Prem Nagar, Delhi. Thus, the respondent No. 3 invoked urgency provision and dispensed with the requirement of filing objection under Section 5-A of the LA Act. Declaration under Section 6 of the LA Act was issued on 11th November, 2003. Since the land and houses of the petitioners are covered by the aforesaid notifications, they filed the present writ petition on 5th December, 2003 challenging these acquisition proceedings.
7. Apart from raising the issue of validity of the acquisition of the land under the LA Act, instead of Metro Railways Act, the petitioners have also contended that initially the plan was to acquire the land adjacent to the petitioners' land. The Respondent No. 5, namely, Lt. Governor intentionally and deliberately changed the proposed site at the behest of some interested persons which is an act of mala fide. Before coming to the core issue delineated in the opening para, we shall deal with this submission first.
8. In the counter affidavit filed on behalf of the DMRC, this allegation is denied and it is explained that in fact site was never changed as alleged by the petitioner and the site in question was same as originally approved by the DMRC for the construction of Prem Nagar Station. It is explained in the affidavit that for the construction of Prem Nagar Station, the DMRC appointed M/s. Systra and Tandon of France and India (hereinafter referred to as 'the Consultants' as Detailed Designing Consultants (DDC) for Elevated Viaduct and Station of Barakhamba Road to Dwarka Section of DMRC Project. It is explained that the land acquisition plan for each station is made and approved by the DMRC in consultation with the Consultants keeping in view the building layout of the station, requirement of circulating areas, entry/exit requirement, parking space and moving of fire tenders etc. In the instant case, number of building layouts, drawings/plans were prepared for the above station and on 5th March, 2003 the Consultants submitted three layouts for consideration by the DMRC. The DMRC examined the said drawings and found one out of the three as suggested by the Consultants as the most technically suited and adopted the same for developing land plan which formed the basis for ultimate acquisition. Before arriving at the final layout plan DMRC then developed land plans which were required to be modified from time to time due to technical and operational reasons. In this process on 8th March, 2003 Director (P&P;) of DMRC made a noting that the plan was not adequate to cater to the operational requirement of a Station. The said officer disagreed with the suggestion of DDC that on the north side requirement for movement of a fire tender could be met by widening the street. It was further observed that no land had been proposed to be acquired on either side of the Station. Accordingly it was suggested that land requirement should be worked out so as to exclude the situation of station getting land locked. This noting was examined by the CPM/Line-3, the Chief Architect and the DDC. The requirement of Land for Prem Nagar Metro Station was then re-examined by the Consultants. On 12th March, 2003 the DDC submitted a plan suggesting acquisition of land marked 'A' thereon. It was suggested by the DDC that acquisition of the said portion of land marked 'A' on the north side would give a better entry and access to the station. DMRC accordingly prepared the land plan and on 31st March, 2003 Mr. Vijay Anand, the CMD/Line-3 of DMRC recommended for acquisition of 2008.499 sq. mt., of land on the North side and 3695.734 sq. mt., of land on the South side as per plan. The said plan was examined by various officers and the same was approved for acquisition by the Chief Architect on 1st April, 2003 by the Director (P&P;) on 2nd April, 2003 and by the Managing Director on 2nd April, 2003. The DMRC accordingly sent a letter dated 10th April, 2003 to the Government of NCT of Delhi placing its requirement of land as per the land plan enclosed therewith. The land of the petitioners was included in the aforesaid plan originally recommended by the Consultants and also in the plan finalised by DMRC.
9. Commenting on the plan filed by the petitioners along with the writ petition as Annexure P-4 the respondents have submitted that this plan seems to be substantially similar to one of the layouts submitted by the Consultants on 5th March, 2003, but that is not the plan which was prepared by the DMRC or approved by the DMRC.
10. We summoned the official records and went through the complete nothings as well as plan options submitted by the Consultants. The stand taken by the respondent No. 6 is in tune with the official records. It can, thereforee, safely be concluded that the site in question was finally approved after picking one of the plans and making changes therein. The argument of the petitioners that initially there was some other plan approved by the DMRC and later on site was changed by adopting the site in question is falsified as the same is not borne from the record. We are, thereforee, of the opinion that it is not a case where there was any shifting of the site, much less due to any mala fide reason or at the instance of some other person.
11. This brings us to the core question raised in the petition, namely, whether the land for the purpose of DMRC is to be necessarily acquired only by invoking the provisions of the Metro Railways Act or the provisions of the LA Act can also be resorted to? In this respect submission of the petitioners is that the Metro Railways Act is a complete code specially enacted for the purpose of acquisition of land and building etc. for construction of the Metro Railway and the provisions contained in the Metro Railways Act would clearly show that if the land is required for metro railway, it has to be acquired under this Act alone.
12. Referring to certain provisions of the Metro Railways Act and particularly Sections 6, 7, 9, 17, 40 and 45 it is argued that the irresistible conclusion would be that the land can be acquired for the purpose of metro railways only under this Act. The submissions are paraphrased, in brief, in the following manner:-
A) Under the LA Act land can be acquired for any 'public purpose' which is general in nature. Under the Metro Railways Act, the purpose is specific, i.e. requirement for the purpose of metro railways alone.
B) The special statute, namely, the Metro Railways Act deals with various aspects relating to the construction of metro railway and contains provisions for acquisition of land as well when land etc. is required for the construction of any metro railway or any other work connected therewith. It is, thereforee, complete code in itself providing for entire machinery and special procedure for the acquisition of land etc. for such specific purpose and thus, special excludes the general.
C) The LA Act deals with 'land' generally whereas under the Metro Railways Act, apart from 'land' there is a specific mention of acquisition of any building, street, road or passage etc.
13. Expanding the argument, it was submitted that one could see that when Metro Railways Act was enacted by the Parliament in the year 1978, the Land Acquisition Act, 1894 was in operation, the Parliament in its wisdom still decided to have separate and special provisions for acquisition of land for the purpose of construction of metro railway and provided complete machinery for the same. It was argued that the Legislature wanted, notwithstanding the existence of the LA Act, special provisions for acquisition of land for the purpose of construction of metro railways, particularly in respect of the right to file objections and right to have the determination of amount payable for acquisition of land, building etc. While LA Act gives power to the State to acquire the land, at the same time it also gives owner of the property a right to object to the acquisition by filing objections. Section 5A of the LA Act gives a further right of personal hearing on the objection. This right is in consonance with the ethos of the Constitution of India imbibing principles of natural justice. The least that can be done for a person whose land is to be acquired is to allow him to present his point of view. The Legislature, thereforee, by enacting Section 17 of the LA Act was conscious of the fact that there may be cases of extreme urgency where provisions of Section 5A will have to be dispensed with and possession of land would be required to be taken immediately. Still, when the same Parliament was legislating qua acquisition of land, building etc. for the purpose of construction of metro railways, it consciously and deliberately did not provide for any such emergency provision and dispensing with right of the interested person from hearing his objections. According to the counsel, it was deliberate omission as the Legislature was conscious of the fact that such metro railway will have to be constructed in metropolitan cities of Bombay (now Mumbai), Calcutta (now Kolkata), Delhi or Madras (now Chennai). It is a matter of common knowledge that all these metropolitan cities are thickly populated. Any plan of construction of railway across the metro and catering to all important areas of the metropolitan city would necessarily require re-claiming of land, building etc. belonging to the persons who are already in settled position. It may uproot various colonies entirely. As it would affect many residents directly whose land and buildings are sought to be acquired and indirectly when streets, roads and passages of the colonies of such residents are sought to be acquired, such interested persons are given statutory right to file objections and be heard personally in respect of their objections. The purpose of filing objections in the two enactments can itself be totally different. When the objections are filed under the LA Act, the affected person can challenge that land is not required for 'public purpose' at all. On the other hand such a challenge may not be admissible to the interested person when the land, building etc. is sought to be acquired under the Metro Railways Act as when the acquisition is for the purpose of construction of metro railway, the very public purpose is inherent in such acquisition. thereforee, the objections under this Act would be totally different in nature. The interested person whose land, building etc. is sought to be acquired may say that other route/site may be more feasible. Citing this very case as an example, it was argued that one of the contentions of the petitioners is that the vacant land adjacent to their houses is available which can be utilised for the purpose of metro railway station and, thereforee, it would be better and more feasible to acquire that land which is vacant rather than demolishing the houses of the petitioners utilising their land for such a purpose. The submission was that precisely for this purpose, the right to project such a view point was not taken away under the Metro Railways Act, 1978.
14. On the other hand, case of the respondents is that both the Acts, namely, the Metro Railways Act as well as the LA Act can co-exist and can be read harmoniously and it is the right of the respondents to take recourse to either of them. Number of judgments were cited in support of the proposition that it was the choice of the respondents to take actions in accordance with any of the two Acts. It was also submitted that possession of the land in question had already been taken and, thereforee, such writ petition was not maintainable and was liable to be dismissed.
15. Before answering the issue, it would be fruitful to glance through the main provisions of the two Acts.
16. As per the scheme provided under the LA Act, the proceedings for acquisition start with a preliminary notification under Section 4. By that notification the Government notifies that land in any locality is needed or is likely to be needed for any public purpose. On that notification certain consequences follow and authority is conferred on an officer either generally or specially by Government and on his servants and workmen to enter upon and survey and take levels of any land in such locality, to dig or bore into the sub-soil, to do all other acts necessary to ascertain whether the land is adapted for such purpose, to set out the boundaries of the land proposed to be taken, and so on. Then Section 5-A provides that any person interested in any land which has been notified in Section 4, may within thirty days of the issue of the notification object to the acquisition of the land or of any land in the locality as the case may be. Every such objection shall be made to the Collector in writing and the Collector has to give the objector an opportunity of being heard. After hearing all objections and after making such further inquiry if any as he thinks fit, the Collector has to submit the case for the decision of the Government together with the record of the proceedings held by him and the report containing his recommendations on the objections. The decision of the Government on the objection is final. Then comes the notification under Section 6, which provides that when the appropriate government is satisfied after considering the report, if any, made under Section 5-A that any particular land is needed for a public purpose, a declaration shall be made to that effect and published in the official gazette. After such a declaration has been made under Section 6, the Collector has to take order for acquisition of land. It is marked out, measured and planned under Section 8 if necessary and notice is given under Section 9 to persons interested. The Collector then holds inquiry under Section 11 and makes an award. After the award is made, the Collector has got the power to take possession of the land under Section 16 and the land then vests absolutely in the Government free from all encumbrances. It will be clear from this scheme that compliance with the provisions of Section 5-A is necessary before a notification can be issued under Section 6. This, as we have said, is the usual procedure to be followed before the notification under Section 6 is issued. To this usual procedure there is, however, an exception under Section 17. When action is taken under Section .17(4), it is not necessary to follow the procedure in Section 5-A and a notification under Section 6 can be issued without a report from the Collector under Section 5A.
17. In so far as the Metro Railways Act is concerned, preamble of the Act suggests that it was enacted to provide for the construction and works relating to the metro railways in the metropolitan cities and for matter connected therewith. Sub-Section (3) of Section 1 stipulates that the Act would be applicable, in the first instance, to the metropolitan city of Calcutta. However, this Sub-Section further authorises the Central Government to apply the provisions of this Act to such other metropolitan city by notification in the Official Gazette specifying the date in that notification from which the provisions of the Act shall be applicable. Section 2 is definition clause. Some of the definitions necessary for our purpose are the following:-
'2. Definitions. (1) In this Act, unless the context otherwise requires,---(a) xxx
-(b) ' arbitrator' meansthe arbitrator appointed under Section 16;
(c) 'building' means a house, outhouse, stable, latrine, urinal, shed, hut or wall or any other structure or erection, whether of masonry bricks, wood, mud, metal or any other material or any part of a building, but does not include a plant or machinery installed in a building or any part thereof or any portable shelter;
(d) xxx
(e) 'competent authority' means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority under this Act for such area as may be specified in the notification;
(f) xxx
(g) 'land' includes any right or interest in land;
(h) xxx
(i) 'metro railway' means a metro railway or any portion thereof for the public carriage of passengers, animals or goods and includes--
A)all land within the boundary marks indicating the limits of the land appurtenant to a metro railway,
B)all lines of rail, sidings, yards or branches worked over for the purposes of, or in connection with, a metro railway,
C)all stations, offices, ventilation shafts and ducts, warehouses, workshops, manufactories, fixed plants and machineries, sheds, depots and other works constructed for the purpose of, or in connection with, a metro railway;
(j) xxx
(k) 'metropolitan city' means the metropolitan city of Bombay, Calcutta, Delhi or Madras;
(l) xxx
(m) xxx
(n) 'metropolitan city of Delhi' means the entire area of the Union territory of Delhi;'
18. Chapter III deals with acquisition of land etc. for the purpose of construction of Metro Railway and contains provisions from Sections 6 to 17. The relevant Sections for our purposes are the following:-
'6. Powers to acquire land, etc.--Where it appears to a metro railway administration that for the construction of any metro railway or any other work connected therewith-
(a) any land, building, street, road or passage, or
(b) any right of user, or any right in the nature of easement, therein;
is required for such construction or work, is shall apply to the Central Government in such form as may be prescribed for acquiring such land, building, street, road or passage or such right of user or easement.
7. Publication of notification for acquisition.--(1) On receipt of any application under section 6, the Central Government, after being satisfied that the requirement mentioned therein is for a public purpose, may, by notification in the Official Gazette, declare its intention to acquire the land, building, street, road or passage, or the right of user, or the right in the nature of easement, therein referred to in the application.
(2) Every notification under sub-section (1) shall give a brief description of the land, building, street, road or passage.
(3) The competent authority shall cause the substance of the notification to be published in such places and in such manner as may be prescribed.
8. Power to enter for survey, etc.--On the issue of a notification under sub-section (1) of section 7, it shall be lawful for the metro railway administration or any officer or other employee of the metro railway--
(a) to enter upon and survey and take level of the land, building, street, road or passage specified in the notification;
(b) to dig or bore into the sub-soil;
(c) to set out the intended work;
(d) to mark such levels, boundaries or lines by placing marks and cutting trenches;
(e) to do all other acts necessary to ascertain whether the metro railway can be laid upon or under the land, building, street, road or passage, as the case may be;
Provided that while exercising any power under this section the metro railway administration or such officer or other employee shall cause as little damage or injury as possible to such land, building, street, road or passage, as the case may be.
9. Hearing of objection.--(1) Any person interested in the land, building, street, road or passage may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 7 object to the construction of the metro railway or any other work connected therewith upon or under the land, building, street, road or passage, as the case may be.
(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Explanationn.--For the purpose of this sub-section 'legal practitioner' has the same meaning as in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961)
(3) Any order made by the competent authority under sub-section (2) shall be final.
10. Declaration of acquisition.--(1) Where no objection under sub-section (1) of section 9 has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land, building, street, road or passage, or the right of user, or the right in the nature of easement, therein for laying the metro railway should be acquired.
(2) On the publication of the declaration under sub-section (1), the land, building, street, road or passage, or the right of user, or the right in the nature of easement, therein shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, building, street, road or passage, a notification has been published under sub-section (1) of section 7 either for its acquisition or for the acquisition of the right of user, or any right in the nature of easement, therein, but no declaration under this section has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect.
(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.
11. xxx
12. xxx
13. Determination of amount payable for acquisition.--(1) Where any land, building, street, road or passage is acquired under this Act, there shall be paid an amount which shall be determined by the competent authority.
(2) Where the right of user in, or any right in the nature of an easement on, any land, building, street, road or passage is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land, building, street, road or passage has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent of the amount determined under sub-section (1) for that land, building, street, road or passage.
(3) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties the amount shall, on an application by either of the parties, be determined by the arbitrator.
14. xxx
15. xxx
16. Arbitrator.--(1) For every metro railway the Central Government shall, for the purposes of this Act, appoint as arbitrator a person who is, or has been, or is qualified for appointment as, a Judge of a High Court.
(2) The arbitrator may, if he thinks fit it expedient so to do, call in his aid one or more assessors and hear the references wholly or partially with the aid of such assessors.
(3) Subject to the provisions of this section the provisions of the Arbitration Act, 1940 (10 of 1940), shall apply to every arbitration under this Act.
17. Land Acquisition Act 1 of 1894 not to apply.--Nothing in the Land Acquisition Act, 1894, shall apply to an acquisition under this Act.'
19. Other two provisions which will have bearing on the issue at hand are Sections 40 and 45 which are to the following effect:-
'40. Effect of Act and rules etc., inconsistent with other enactments.--The provisions of this Act or any rule made or any notification issued there under shall have effect notwithstanding anything anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.
45. Saving.--Notwithstanding anything contained in this Act any proceedings, for the acquisition of any land, under the Land Acquisition Act, 1894 (1 of 1894), for the purpose of any metro railway, pending immediately before the commencement of this Act before any court or other authority shall be continued and be disposed of under that Act as if this Act had not come into force.'
20. It is clear from the reading of Section 2 of the Metro Railway Act that 'building' and 'land' are separately and specifically defined. On the other hand, the LA Act contains definition of 'land' only although the definition is very wide and includes benefits to arise of land and things attached to the earth, which obviously includes 'building and structure'. Still, the Legislature, in its wisdom, decided to provide separate definitions for 'building' and 'land' in the Metro Railways Act. Likewise, Section 6 of the Metro Railways Act does not restrict the acquisition of land but specifically provides for the acquisition of the following:-
a) any land, building, street, road or passage, or
b) any right of user, or any right in the nature of easement, therein.
21. When it appears to a Metro Railway Administration that land etc. is required for the construction of any metro railway, it shall apply to the Central Government for acquisition of such 'land, building, street, road or passage or such right of user or easement'. For the sake of brevity the expression is referred to hereinafter in an abbreviated form as 'land, building etc.'. On receipt of such an application the Central Government is to be satisfied that there is such a requirement which is for 'public purpose' and on such satisfaction notification may be issued by the Central Government in the Official Gazette for which power is given under Section 7 of the Act, declaring its intention to acquire such land etc. It is mandatory that in every such notification brief description of the land, building, street, road or passage is also given. Publication of such notification in the prescribed manner is also made mandatory. Within 21 days of such publication any person interested in the land, building etc. is given right to object to the construction of the metro railway or any other work connected therewith upon or under the land, building, street, road or passage, as the case may be. On filing such objections, the Competent Authority has to give the objector an opportunity of being heard and after hearing all such objections and after making such further inquiry, if any, as may be deemed necessary the Competent Authority may either allow or disallow the objections. Right to file objection is given under Section 9 and the manner in which they are to be considered is also specifically provided therein. There is no provision similar to Section 17 of the LA Act, for dispensing with the right of the objectors to file such objections. Likewise, the manner in which the possession is to be taken under Section 11 of the Act after declaration of acquisition under Section 10 of the Act is distinct from the manner in which possession is to be taken under Section 16 of the LA Act. Even when there is provision for taking immediate possession under Section 17(1) of the LA Act, here Section 11 provides for giving 60 days' notice to the owner to deliver the possession of such land, building etc. which has been acquired.
22. Once land, building etc. is acquired under the provisions of this Act, the procedure for payment of compensation is also different from the one laid down in the LA Act. There is a departure made by providing that if the amount determined by the Competent Authority under Sub-Section (1) or Sub-Section (2) of Section 13 is not acceptable to either of the parties (the two parties here are the person whose land, building etc. is acquired and the DMRC), the amounts shall, on an application by either of the parties, be determined by the Arbitrator. Under Section 16 such an Arbitrator has to be a person who is, or has been, or is qualified for appointment as a Judge of a High Court. The considerations which are to be kept in mind while determining the amount of compensation by the Competent Authority or the Arbitrator are laid down in Sub-Section (4) of Section 13. Thus, in case of dispute, the matter is to be decided by Arbitrator rather than referring to the Additional District Judge, as provided under the LA Act. The purpose is to decide the case of compensation immediately, in case of dispute, so that affected party gets the relief without delay. It is for this reason the person qualified for appointment of an Arbitrator is the one who is Judge of a High Court or qualified for such an appointment. Thus, by providing such a provision where Arbitrator to be appointed is a person of very high status, no further appeal etc. is provided.
23. Section 17 specifies that once the land is acquired under this Act provisions of the LA Act shall not apply to such an acquisition. Section 40, which is in Chapter VI of the Metro Railways Act containing 'Miscellaneous Provisions' gives supremacy to the provisions of the Metro Railways Act or any rule made or any notification issued there under if there is inconsistency between the provisions of the act/rule/notification made there under and any other enactment. Section 45 is also significant as it saves the proceedings started under the LA Act before the commencement of the Metro Railways Act by allowing those proceedings to continue and dispose of under the LA Act as if the Metro Railways Act had not come into force. Reading of these provisions may give an impression that only those proceedings which started before coming into force the Metro Railways Act would continue under the LA Act thereby implying that after this Act comes into force proceedings will normally be initiated under this Act.
24. The aforesaid discussion would also demonstrate that the procedure for acquisition of land laid down under the LA Act is stricter, more particularly when Section 17 relating to urgency provision are invoked. Rights given to the owners whose land, building etc. is sought to be acquired under the Metro Railways Act are better and it provided more safeguards.
25. However, can it be concluded that the Government will have no right to acquire the land, building etc. for construction of metro railway under the LA Act at all, and it would be the compulsion of the respondents to resort to the provisions under the Metro Railways Act alone? Or the two Acts still co-exist and the Government can resort to any of them? Here we are not required to go into the exercise in detail as we are not treading on virgin territory. Field is covered by the judgments of the Supreme Court showing the path and providing an answer to this issue. It would, thereforee, be useful to peruse those judgments in order to find the solution to the question posed.
26. The first case to which we may refer to is Nagpur Improvement Trust v. Vithal Rao (Supra). In that case the question which fell for consideration was determination of compensation for acquisition of land by the Nagpur Improvement Trust (in short 'the Improvement Trust'). It was found that principle of determining the compensation under the Nagpur Improvement Trust Act was different from the one laid down under the LA Act and the Court answered this issue by holding that there could not have been different principle for payment of compensation for land acquired when the land was to be acquired for the public purpose. The Court pointed out that if the existence of two Act could enable the State to give one owner different treatment from another equally situated, the owner, who is discriminated against, can claim protection of Article 14 of the Constitution. However, the other issue which was raised was the one which is involved in the present case, as would be clear from para 21 of the judgment which contains the poser and answer to that question in subsequent paras. We, thereforee, quote hereunder paras 21 to 24 verbatim.
'21. The first point which was raised was: whether it is the State which is the acquiring authority or it is the Improvement Trust which is the acquiring authority, under the Improvement Act. It seems to us that it is quite clear, especially in view of Section 17-A as inserted by Para 6 of the Schedule, that the acquisition will be by the Government and it is only on payment of the cost of acquisition to the Government that the lands vest in the Trust. It is true that the acquisition is for the Trust and may be at its instance, but nevertheless the acquisition is by the Government.
22. If this is so, then it is quite clear that the Government can acquire for a housing accommodation scheme either under the Land Acquisition Act or under the Improvement Act. If this is so, it enables the State Government to discriminate between one owner equally situated from another owner.
23. This Court held in Nandeshwar Prasad v. U.P. Government, : [1964]3SCR425 that the fact that the lands could be acquired for a scheme under the Kanpur Urban Development Act (U.P. Act VI of 1945) did not prevent the Government from acquiring the lands for the same purpose under the Land Acquisition Act (as amended by the Kanpur Act). We may mention that the Kanpur Act amended the Land Acquisition Act by the Schedule for the purpose of acquisition of land for the Board in a similar manner as in the Nagpur Improvement Trust Act.
24. A similar point was abandoned in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras, : [1965]1SCR614 by Mr. Vishwanatha Sastri in view of the above decision of this Court in Kanpur case.'
27. It is clear that issue was specially raised that if the land is to be acquired of housing purpose to be utilised by the Improvement Trust whether it is only the Improvement Trust which can acquire the same under the Nagpur Improvement Trust Act or the State Government could also acquire the land for housing accommodation scheme under the LA Act. A reading of the aforesaid paragraphs makes it clear that the Court was of the opinion that the Government could acquire the land for housing accommodation scheme either under the LA Act or under the Improvement Trust Act.
28. While coming to this conclusion, the Court relied upon two judgments, namely, Nandeshwar Prasad v. U.P. Government (Supra) and P. Vajravelu Mudaliar v. Special Deputy Collector, Madras (Surpa). When we peruse the judgment of the Supreme Court in Nandeshwar Prasad vs. U.P. Government (Supra) we find that the Supreme Court held in no uncertain terms that it was open to the Government to acquire the land even for housing purpose by resorting to LA Act although Kanpur Urban Area Development Act (in short 'the Kanpur Act') also provided for acquisition of land specially for the said purpose. The land in that case was acquired under the LA Act although for the purpose of scheme of the development Board prepared under the Kanpur Act. In para 5 of the judgment, following contention is noted:-
'it was first urged that as the acquisition was for the purpose of scheme No. XX of the Board, action had to be taken in accordance with Section 114 of the Kanpur Act and the schedule thereto and as no action had been so taken, the proceedings for acquisition were bad'.
29. By detailed discussion in para 9 this argument is held to be fallacious. We may only quote that portion of the observations which directly deal with the issue:-
'9. ...It is obvious that Ch.VII, S.71, S.114 and the other provisions in Ch.XI dealing with modifications and the modifications in the schedule are all part of one scheme, where the Board is acquiring land itself for its own purpose with the previous sanction of Government; but where the acquisition is, as in the present case, by the Government under the Land Acquisition Act, for public purpose though that purpose may be the purpose of the Board, the Kanpur Act has no application at all, and the Government proceeds to acquire under the provisions of the Land Acquisition Act, alone. The contention thereforee on behalf of the appellants that the Kanpur Act has not been complied with an thereforee the proceedings for acquisition of land are bad has no force and must be rejected.'
30. In P. Vajravelu Mudaliar v. Special Deputy Collector, Madras (Surpa), which is a Constitution Bench judgment and deals with so many issues, the issue which is involved in this case was, in fact, disposed of by merely citing the two earlier judgments, including, Nandeshwar Prasad v. U.P. Government (Supra) clearly indicating that there was hardly any scope to argue the same. We say so in view of para 9 of this judgment, which is as under:-
'9. The first question need not detain us, for though Mr. Vishanatha Sastri raised the point that the Government can only acquire the lands for housing schemes in conformity with the provisions of either the Madras Town-Planning Act, 1920, or the Madras State Housing Board Act, 1961 but not under the provisions of the Amendment Act, he did not pursue the matter in view of the following two decisions of this Court: Patna Improvement Trust v. Smt. Lakshmi Devi : AIR1963SC1077 and Nandeshwar Prasad v. U.P. Government : [1964]3SCR425 . thereforee, nothing more need to be said about this.'
31. We have already dealt with the case of Nandeshwar Prasad v. U.P. Government (Supra). The other judgment cited is Patna Improvement Trust v. Lakshmi Devi (Supra). When we go through that judgment the issue stands further clarified from the majority view of three Judges. This is what the Court held by majority:-
'(5) It is not necessary to go into the argument of inconsistency between the Bihar Act and the Land Acquisition Act or the special Act excluding the general because it appears to us that the various provisions of the Bihar Act themselves afford the key to the solution of the problem before us which is one of construction. Section 71 of the Bihar Act which modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act that Act (Land Acquisition Act) shall be subject to the modification specified in the Schedule. thereforee even for the purpose of acquiring land for the Trust the machinery of the Land Acquisition Act as modified is contemplated. It does not exclude the Land Acquisition Act, on the contrary it makes it applicable but subject to its modifications and exceptions. Now the first relevant modification is sub-cl. (1) of cl. 2 of the Schedule. There a first notice under S.46 of the Bihar Act is substituted for and has the same effect as a notification under S.4(1) of the Land Acquisition Act but that is subject to an important exception and that exception is a notification under S.4(1) of the Land Acquisition Act or a declaration under S. 6 of that Act which 'has been previously made and is in force.' Thus when the exception applies the first notice under S.46 of the Bihar Act has not that effect. The words 'has been previously made' do not merely connote the issuing of a notification before the Bihar Act was passed but include all notifications made prior or anterior to the first publication of a notice of an improvement scheme under S.46. In other words if, before a notice under S.46 has been published a notification under S.4(1) or a declaration under S.6 of the Land Acquisition Act is made and is in force then the first publication of a notice under S.46 would not be substituted for or have the same effect as a notification under S.4(1).'
32. It would be of some interest to note that minority view expressed by Subba Rao, J. was that when there is a special Act, general Act has to yield to such special Act dealing with a specific subject matter and if an Act directs a thing to be done in a particular way it shall deem to have prohibited the doing of that thing in any other way, which was one of the arguments of the petitioners in the instant case as well. But it did not find favor with the majority view in the aforesaid case.
33. The view expressed in the aforesaid judgments has been reiterated by the Supreme Court even in recent times. Similar contention raised by the petitioner was rejected by the Supreme Court in the case of S.S. Darshan v. State of Karnataka and others : AIR1996SC671 in the following manner:-
'10. The next contention is that the acquisition under the Central Act which is a more stringent provision is vocative of Article 14 since it deprives the appellants of the right of the more liberal provisions of the Karnataka Act, 1966. In our opinion, there is no merit in this contention as well. In view of the urgent need for the acquisition of this land, which cannot be met under the Karnataka Act, resort to the provisions of the Central Act which are applicable cannot be faulted.'
Thus, the Court held that when there was urgent need for the acquisition of land and there was no provision under the Karnataka Industrial Areas Development Act, 1966 for acquiring the land on urgent basis, land could be acquired under the Land Acquisition Act by resorting to Section 17. It was contended by the learned counsel appearing for petitioners in different writ petitions that there is no detailed discussion by the Supreme Court while coming to the aforesaid conclusion. That argument cannot be raised before us as mandate of Article 141 binds us with the aforesaid dicta.
34. The Supreme Court has re-affirmed this view in a recent judgment in the case of Savitri Cairae v. U.P. Avas Evam Vikas Parishad & Anr. : [2003]3SCR1081 . After relying upon Nagpur Improvement Trust v. Vithal Rao (Supra), Nagpur Improvement Trust v. Vasantrao and Others : [2002]SUPP2SCR636 and other judgments it is held that for the purpose of providing housing facilities to the people, lands undoubtedly could be acquired both under LA Act as well as under the U.P. Avas Evam Vikas Parishad Adhiniyam.
35. Thus, however attractive may be the submission of the petitioners, it has no merit in view of the law laid down by the Supreme Court in the afore noted cases. No doubt, in view of the special scheme provided under the Metro Railways Act, it is expected that when the land, building etc. is sought to be acquired for the purpose of metro railways, provisions of this Act should normally be resorted to. However, that is not to say that machinery under the LA Act cannot be resorted to at all. It may be noted that resort to the provisions of Section 17 of the LA Act by the Government thereby invoking the urgency clause is not challenged by the petitioners. thereforee, the exercise of the respondents in invoking the provisions of the LA Act for acquisition of land for the purpose of Prem Nagar MRTS Station, i.e. the metro railway cannot be faulted with. We are, thus, constrained to dismiss these writ petitions.
36. Before parting, however, we may point out that the possession of the land and buildings was taken by the respondent during the pendency of these writ petitions, and no compensation has been paid under Section 17(3-A) of the Act. Award has not been pronounced so far. However, the possession could have been taken only after offering 80% of the estimated compensation. Without dilating, we may observe that the manner in which possession was taken cannot be appreciated, as notices were issued to the occupants of the houses to be present at site at 10:30 AM on 24th December, 2003 with supporting documents for receiving the compensation but possession was taken at 8:30 AM itself on the same date without waiting for the occupants to furnish the required documents for which time was fixed at 10:30 AM. It appears that this undue haste was shown because an application for stay was moved by the petitioners in WP (C) No. 8440/2003 and it was listed before the Vacation Bench of this Court on the same day and the respondents wanted to frustrate the attempt of the petitioners and for this reason possession was taken even before the time fixed in the notices. There was a dispute as to whether compensation was offered or not. Although the respondents produced the record to show that compensation had been calculated and alleged that it was offered, we need not go into this question any further as learned counsel for the petitioners, during arguments, stated that the petitioners were pressing the petitions and were not interested in receiving the compensation. But still, we are at pain to point out that we are coming across number of cases where after invoking the urgency clause contained in Section 17 of the Act, possession of land is taken by the authorities without even offering the compensation as required under Section 17(3A) of the LA Act. No doubt, the Apex Court has held that even when possession of the land so acquired is taken without offering the compensation under Section 17(3A) of the LA Act, that would not by itself render taking of the possession illegal. However, that does not mean that the authorities may, in all cases and almost as a matter of course, take possession of land after invoking Section 17 of the LA Act without offering the compensation of 80% of the estimated amount as provided under Section 17(3A) of the LA Act. Taking of the possession in this manner without complying with the provisions of Section 17(3A) of the LA Act can only be in exceptional circumstances justifying non-observance of the mandate of Section 17(3A). If such a procedure is resorted to, in contravention of Section 17(3A) almost as a matter of routine and without any valid justification in given cases, such action of the respondents can be dubbed as arbitrary and malicious. The entire scheme under the LA Act aims at payment of compensation at the time of taking possession. When the ordinary process is initiated without resort to the provisions of Section 17 of the LA Act, only after the Award is passed and compensation determined after hearing interested persons that possession is taken and at that time compensation as determined is offered. While providing provisions like Section 17 where immediate possession may be required, the Legislature in its wisdom still thought that estimated compensation be worked out and 80% thereof be paid to the land owner at the time of taking possession. Obviously, the purpose is to mitigate the hardship by paying some amount so that the person who is deprived of his land is able to get immediate relief to some extent. In the instant case itself the petitioners are not only deprived of their land but their habitat as well. The respondents have thus made them shelterless without even paying compensation as per the provisions of Section 17(3A) of the LA Act which could have provided them some succour. No doubt MRTS is an important project and citizens have to make sacrifices for the success of this project. However, that does not mean that in the process the respondents do not even adopt humane approach and deprive them of their shelter mercilessly. The manner in which the possession is taken from the petitioners in the present case and demolition exercise carried out leaves much to desire and we have no option but to express our anguish in strong terms. We hope that the authorities shall keep this aspect in mind and would be careful in future.
37. Since we have no option but to dismiss these petitions on merits, the respondents are expected to pay the compensation to the petitioners without any delay. Although estimated compensation for the land had been worked out, which calculations were shown to us, the respondents have not done any exercise of determining the compensation for the building structure belonging to the petitioners. The respondents are accordingly directed to do the exercise of calculating estimated compensation for land and buildings etc. and pay the petitioners 80% thereof as provided under Section 17(3A) of the LA Act within 30 days. The LAC is further directed to pass the award within two months determining the compensation and pay the same to the petitioners immediately thereafter. The petitioners shall also be entitled to move applications for alternate land as per the scheme formulated by the DMRC and on making such applications the same would be decided on their merits within three months of making those applications.
38. With the aforesaid directions and observations, these writ petitions are dismissed. However, there shall be no order as to costs.