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WPC No.3096 of 2021 &
WPC No.4152 of 2021
2024:CGHC:28196-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 3096 of 2021
1. Ishwar Prasad Rathore S/o Late Dev Narayan Rathore, Aged About 63
Years R/o Village Bhathoura, Tahsil Katghora, District : Korba,
Chhattisgarh
---- Petitioner
versus
1. Union Of India Through Secretary, Ministry Of Coal, Shashtri Bhawan,
New Delhi
2. Coal India Limited Through Chairman-Cum-Managing Director, Coal
Bhawan, Premise No.04 MAR, Plot No. AF-III, Action Area-1A, New
Town, Rajarhat, Kolkatta – 700156
3. South Eastern Coalfields Ltd. Through Its Chairman-Cum-Managing
Director (Cmd), Secl, Seepat Road, Bilaspur (Chhattisgarh)
4. Director (Personnel) South Eastern Coalfields Ltd. Secl, Seepat Road,
Bilaspur (Chhattisgarh)
5. Chief General Manager South Eastern Coalfields Ltd. Gavera Area
(Gavera Open Cast Project), Korba, Distt. Korba (Chhattisgarh)
6. District Collector-Cum-Officiating Dy. Secretary Government Of
Chhattisgarh, Collectorate, Korba, Distt. Korba (Chhattisgarh)
---- Respondents
WPC No. 4152 of 2021
1. Babulal Jaiswal S/o Late Gulab Aged About 54 Years Caste Kalar, R/o
Village Khedapali, Tahsil Dharamjaigarh, District Raigarh Chhattisgarh.
----Petitioner
Versus
1. South Eastern Coalfields Ltd. Through Its Chairman Cum Managing
Director (CMD) , SECL , Seepat Road, Bilaspur Chhattisgarh.
Digitally
signed by K
GOWRI
K GOWRI
SANKARA
SANKARA RAO 2. Director (Personnel) South Eastern Coalfields Ltd. SECL, Seepat Road,
RAO Date:
Bilaspur Chhattisgarh.
2024.08.05
11:06:08
+0530
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3. Deputy General Manager (Mining) / Sub Area Manager, South Eastern
Coalfields Ltd. Chhal Sub Area , Raigarh Area, At Post Chhal , District
Raigarh Chhattisgarh.
4. Coal India Limited Through Chairman Cum Managing Director , Coal
Bhawan, Premise No. 04 MAR, Plot No. AF III, Action Area 1A, New
Town , Rajarhat, Kolkatta 700156.
5. Union Of India Through Secretary, Ministry Of Coal, Shastri Bhawan New
Delhi .
6. District Collector Cum Officiatng Dy. Secretary Government Of
Chhattisgarh, Collectorate , Raigarh , District Raigarh Chhattisgarh.
7. Sub Divisional Officer-Land Acquisition Officer Officiating as a Collector
in the land acquisition matter, Dharamjaigarh, District Raigarh
Chhattisgarh.
8. Nayab Tahsildar Tahsil Office (Chhal Area) Dharamjaigarh, District
Raigarh Chhattisgarh.
---- Respondent
For Petitioners : Shri Sanjay Kumar Agrawal, Advocate
For Respondent/UOI : Ms Annapurna Tiwari & Shri Tushar Dhar Diwan,
Adv. for the UOI
For Respondent/State Shri Rahul Tamaskar, Govt. Advocate
For Respondent/SECL Shri H.B. Agrawal, Sr. Advocate with Shri Sudhir
Bajpai, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice Radhakishan Agrawal
Order on Board
Per Goutam Bhaduri, J.
31-7-2024
1. Both the writ petitions heard analogously and decided together by this
common order because common facts and question of law has been raised
and the grounds of challenge are overlapping with each other.
2. Challenge in these petitions is to declare Sections 4 to 13 of the Coal
Bearing Areas (Acquisition and Development) Act, 1957 (henceforth ‘the
CBA Act, 1957’) as ultra vires, illegal, inoperative and violative to the
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provisions of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (henceforth ‘the
Land Acquisition Act, 2013’).
3. (i) The submission of the petitioner is that the CBA Act, 1957 which
operates on a specific field was not included in the initial Land Acquisition
Act, 2013 when it was incorporated for application and the CBA Act, 1957
was placed in Schedule IV which was initially excluded for operation of
the Land Acquisition Act, 2013. Subsequently, the notification was
published on 28-8-2015 wherein in exercise of power under Section 105
(3) of the Land Acquisition Act, 2013, the CBA Act, 1957 was excluded
for the purpose of the Land Acquisition Act, 2013 for determination of
compensation. Further submission is made that as per Section 3 of the
CBA Act, 1957 the appointment of competent authority is within the
domain of Central Government, who will determine the quantum of
compensation from time to time whereas Section 26 of the Land
Acquisition Act, 2013 purports that determination of market value of land
is to be done by the Collector alone and different factors have been laid
down.
(ii) The further submission of the petitioner is that Section 25 of the Land
Acquisition Act, 2013 specifically mandates that within a period of one
year the entire compensation proceeding has to be completed from the date
of publication of the declaration whereas the CBA Act, 1957 do not draw
timeline, therefore, there is a conflict in interpretation of both the
provisions. Consequently, by effect and operation of the notification dated
28-8-2015, the provisions of Sections 4 to 13 of the CBA Act, 1957 would
be ultra vires to the main Act, as it cuts through the object, therefore, the
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same be declared as ultra vires. In support of his contention, learned
counsel would place reliance upon the decision rendered by the Supreme
Court in the matter of Executive Engineer, Gosikhurd Project Ambadi,
Bhandara, Maharashtra Vidarbha Irrigation Development Corporation
v Mahesh and Others1 wherein the Supreme Court has interpreted the
Land Acquisition Act, 2013 is reflection of the legislative intent whereby
the object is to grant compensation to the land oustees within a specified
time the maximum determined value and this object of the Act is defeated
by existence of Sections 4 to 13 of the CBA Act, 1957 and, as scuh, they
are ultra vires.
4. Learned counsel appearing for the State, per contra, would submit that the
applicability of the notification would apply in a limited sphere only for
determination of compensation factor and the competent authority would
be the same, therefore, it is an incorporation in the legislature from an
existing Act. The CBA Act, 1957 bears a specific provision which has the
applicability in its own, which cannot be said that it is ultra vires as limited
application has been made only for determination of compensation.
Consequently, no relief can be granted in favour of the petitioner.
5. Learned counsel appearing for the UOI & SECL, adopted the aforesaid
arguments advanced by the learned counsel appearing for the State.
6. We have heard learned counsel appearing for the parties and perused the
documents.
7. Section 3 of the CBA Act, 1957 provides for appointment of competent
authority. The same reads as under :
1 (2022) 2 SCC 772
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3. Appointment of competent authority.—The
Central Government may, by notification in the
Official Gazette, appoint any person to be the
competent authority for the purposes of this Act;
and different persons may be appointed as
competent authorities for different provisions of this
Act and for different areas.
8. Reading of the aforesaid provision would show that it would be within the
domain of Central Government to notify the appointment of competent
authority in the official gazette.
9. Section 4 of the CBA Act, 1957 speaks about the preliminary notification
respecting intention to prospect for coal in any area and powers of
competent authorities thereupon, which allows the authority to delegate its
officers to carry out the work.
10. Section 5 of the CBA Act, 1957 provides for effect of notification on
prospecting licences and mining leases when is made under Section 4.
Section 6 speaks about compensation for any necessary damage done
under Section 4 and Section 7 is about power to acquire land or rights in or
over land notified under Section 4. Section 8 is with regard to objections
to acquisition. Declaration of acquisition envisaged under Section 9 of the
CBA Act, 1957. It also contains Section 9A, which is special powers in
case of urgency. Section 10 provides for vesting of land or rights in
Central Government. Section 13 deals about compensation for prospecting
licences ceasing to have effect, rights under mining leases being acquired,
etc.
11. Section 14 of the CBA Act, 1957 provides for method of determining
compensation, which reads as under :
14. Method of determining compensation.—(1)
Where the amount of any compensation payable
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under this Act can be fixed by agreement, it shall be
paid in accordance with such agreement.
(2) Where no such agreement can be reached, the
Central Government shall constitute a Tribunal
consisting of a person who is or has been or is
qualified to be a Judge of a High Court for the
purpose of determining the amount.
(3) The Central Government may in any particular
case nominate a person having expert knowledge in
mining to assist the Tribunal, and where such
nomination is made, the person or persons
interested may also nominate any other person for
the same purpose.
(4) At the commencement of the proceedings before
the Tribunal the Central Government and the person
interested shall state what in their respective
opinions is a fair amount of compensation.
(5) The Tribunal shall after hearing the dispute,
make an award determining the amount of
compensation which appears to it to be just, and
specify the person or persons to whom the
compensation shall be paid; and in making the
award the Tribunal shall have regard to the
circumstances of each case and to the foregoing
provisions of this Act with respect to the manner in
which the amount of compensation shall be
determined in so far as the said provisions or any of
them may be applicable.
(6) Where there is a dispute as to the person or
persons entitled to compensation and the Tribunal
finds that more persons than one are entitled to
compensation, it shall apportion the amount thereof
among such persons and in such manner as it thinks
fit.
(7) Nothing in the Arbitration Act, 1940 (10 of
1940), shall apply to any proceedings under this
section.
(8) The Tribunal, in the proceedings before it, shall
have all the powers which a civil court has while
trying a suit under the Code of Civil Procedure,
1908 (5 of 1908), in respect of the following
matters, namely:—
(i) summoning and enforcing the attendance of
any person and examining him on oath;
(ii) requiring the discovery and production of
any document;
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(iii) reception of evidence on affidavits;
(iv) requisitioning any public record from any
court or office; and
(v) issuing commissions for examination of
witnesses.
12. Now coming back to Sections 25 & 26 of the Land Acquisition Act, 2013,
Section 25 speaks about the period within which an award shall be made.
It purport that the Collector shall make an award within a period of twelve
months from the date of publication of the declaration which is made under
Section 19 and for determination of market value different factors have
been laid down in Section 26. In the fourth schedule at S.No.11 the
applicability of the Land Acquisition Act, 2013 was excluded initially.
Subsequently, in exercise of power under Section 105(3) of the Land
Acquisition Act, 2013 the notification dated 28-8-2015 was carried out.
13. Sub-section (3) of Section 105 of the Land Acquisition Act, 2013 reads as
under :
105. Provisions of this Act not to apply in certain
cases or to apply with certain modifications. ---
(1) xxx xxx xxx
(2) xxx xxx xxx
(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) xxx xxx xxx
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14. It would be apt to reproduce the notification which was published on 28-8-
2015 whereby the application factor for determination of compensation
was made :
"MINISTRY OF RURAL DEVELOPMENT
ORDER
New Delhi, the 28th August, 2015
S.O. 2368(E).--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 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, 2014;
And whereas, the RFCTLARR (Amendment) Second
Ordinance, 2015 (5 of 2015) was promulgated on 30th
May, 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 31st day
of August, 2015 and thereby placing the land owners at
the disadvantageous position, resulting in denial of
benefits of enhanced compensation and rehabilitation
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and resettlement to the cases of land acquisition under
the 13 Acts specified in the Fourth Schedule 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
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
Compensation and Transparency in Land 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
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.
[F. No. 13011/01/2014-LRD]
K. P. KRISHNAN, Addl. Secy.
15. Reading of the aforesaid notification too would show that it was confined
to the fact relating to the determination of compensation, therefore, the
factor which, prima facie, governs the Land Acquisition Act, 2013 to
determine the factor of compensation encompassed the same. This
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procedure which is adopted by notification of the Central Government, is
covered under the factor of incorporation of an earlier Act into a later Act.
16. The well settled proposition of incorporation has been laid down by the
celebrated book of Justice G.P. Singh namely; Principles of Statutory
Interpretation (15th edition) wherein it has been observed that incorporation
of an earlier Act is a legislative device adopted for the sake of convenience
in order to avoid verbatim reproduction of the provisions of the earlier Act
into the later. (See: Mary Roy v State of Kerala2 and Nagpur
Improvement Trust v Amrik Singh3). It is further observed that when an
earlier Act or certain of its provisions are incorporated by reference into a
later Act, the provisions so incorporated become part and parcel of the later
Act as if they had been ‘bodily transposed into it’. (See: Ramsarup v
Munshi4).
17. The effect of incorporation is admirably stated by Lord Esher MR:
If a subsequent Act brings into itself by reference some
of the clauses of a former Act, the legal effect of that, as
has often been held, is to write those sections into the
new Act as if they had been actually written in it with the
pen, or printed in it. (See: Re. Wood’s Estate, Ex parte,
Works and Buildings Commrs.5)
18. The result is to constitute the later Act along with the incorporated
provisions of the earlier Act, an independent legislation which is not
modified or repealed by a modification or repeal of the earlier Act.
(Narottamdas v State of Madhya Pradesh6) As observed by Brett J:
Where a statute is incorporated, by reference, into a
second statute, the repeal of the first statute by a third
does not affect the second (Clarke v Bradlaugh7),
2 AIR 1986 SC 1011
3 AIR 2002 SC 3499
4 AIR 1963 SC 553
5 (1886) 36 Ch D 607
6 AIR 1964 SC 1667
7 (1881) 8 QBD 63
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To the same effect is the statement by Sir George Lowndes:
It seems to be no less logical to hold that where certain
provisions from an existing Act have been incorporated
into subsequent Act, no addition to the former Act, which
is not expressly made applicable to the subsequent Act,
can be deemed to be incorporated in it, at all events if it
is possible for the subsequent Act to function, effectually
without the addition. (Secretary of State v Hindustan
Co-o Insurance Society Ltd.8)
19. Ordinarily if an Act is incorporated in a later Act, the intention is to
incorporate the earlier Act, with all the amendments made in it up to the
date of incorporation (State of Maharashtra v Madhavrao Damodar
Patil9). The rule that the repeal or amendment of the Act which is
incorporated by reference in a later Act is not applicable for purposes of
the later Act is subject to qualifications and exceptions. A distinction is in
this context drawn between incorporation and mere reference of an earlier
Act into a later Act. Further, a distinction is also drawn when what is
referred to is not an earlier Act or any provision from it but law on a
subject in general. There is, however, no controversy on the point that
when any Act or rules are adopted in any later Act or rules, such adoption
normally whether by incorporation or mere reference takes in all the
amendments in the earlier Act or rules till the date of adoption. ( Rajasthan
State Road Transport Corp. Jaipur v Poonam Pahwa10).
20. In the Calcutta Improvement Act, 1911 (Bengal Act 5 of 1911) the
provisions of the Land Acquisition Act (Central Act 1 of 1894) with certain
modifications were incorporated by reference for purposes of acquisitions
under the Bengal Act. By Central Act 19 of 1921 the Land Acquisition Act
was amended and provision was made in that Act for an appeal to the Privy
Council. In these circumstances it was held by the Judicial Committee that
8 AIR 1931 PC 149
9 AIR 1968 SC 1395
10 AIR 1997 SC 2951
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this amendment had not the effect of modifying the incorporated provision
of the Land Acquisition Act in the Bengal Act and that it did not confer a
right of appeal in relation to an award of compensation under the Bengal
Act. [Hindustan Co-op Insurance Society Ltd.(supra)].
21. Plain interpretation of the Act and the notification would show that the
factor which determined the compensation or to evaluate the same was
incorporated by reference as has been submitted by the learned counsel for
the petitioner that competent authority is required to be replaced and there
is a conflict, we are not in agreement with the same and it is the only factor
which has a limited application to envelope a certain part of the Land
Acquisition Act, 2013. Consequently, we do not find any illegality or
infirmity in the legislation.
22. In the result, both the petitions, sans substratum, are liable to be and are
hereby dismissed. There shall be no order as to cost(s).
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Gowri
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Head Note
When an earlier Act or certain provisions are
incorporated by reference into later Act, the provision
so incorporated become part and parcel of the later if
they had been “bodily transposed into it”.
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