HC upholds Section 105 of land acquisition Act

Petitioner had sought its nullification in the wake of the Chennai-Salem corridor

September 05, 2018 01:30 am | Updated 01:30 am IST - CHENNAI

Salem, Tamil Nadu 20/06/2018: Story by SMS: Revenue officials undertook the survey of land and other properties to be acquired for the Salem - Chennai green corridor project in Sukkampatti village in Salem district on Wednesday.Photo: E_Lakshmi Narayanan

Salem, Tamil Nadu 20/06/2018: Story by SMS: Revenue officials undertook the survey of land and other properties to be acquired for the Salem - Chennai green corridor project in Sukkampatti village in Salem district on Wednesday.Photo: E_Lakshmi Narayanan

The Madras High Court on Tuesday upheld the constitutional validity of Section 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCT) Act of 2013. The provision was challenged because it exempts certain chapters of the legislation from being made applicable to acquisitions for national highways, railways, electricity and 10 other purposes.

A Division Bench of Justices T.S. Sivagnanam and V. Bhavani Subbaroyan held that striking down Section 105 would actually be detrimental, and not beneficial, to those whose lands were being acquired for national highways. The judges said the land owners might get deprived of benefits such as rehabilitation and resettlement provided to them.

The judgment was passed while dismissing a public interest litigation petition filed by G. Sundarrajan of Poovulagin Nanbargal, a non-governmental organisation based here. The petitioner had sought to declare as null and void Section 105 as the well as the land acquisition proceedings initiated under the National Highways (NH) Act of 1956 for the proposed ₹10,000 crore Chennai-Salem greenfield eight-lane expressway.

‘Not a land owner’

Authoring the judgment, Mr. Justice Sivagnanam said the second limb of the petitioner’s prayer with respect to acquisitions for the expressway was not maintainable because he had challenged Section 105 not just with respect to acquisitions for national highways but also for 12 other purposes. The judge, however, ruled that the petitioner was fully entitled to challenge Section 105 alone as a pro bono litigant.

While testing the validity of the legal provision, the judges agreed with Additional Solicitor General G. Rajagopalan and Advocate General Vijay Narayan that land owners would be gravely prejudiced if the Section was declared unconstitutional at the behest of the petitioner, who was not a land owner.

“This is so because, the manner of determination of compensation is more advantageous to the land owner under the RFCT Act. The NH Act does not provide for the procedure for rehabilitation, resettlement or setting up of infrastructural facilities as envisaged in the RFCT Act. This undoubtedly would be prejudicial to the interest of the land owners. Therefore, we fail to understand as to what benefit the land owners would accrue by declaring Section 105 as unconstitutional... At this stage, we may point out that the petitioner in this petition is not a land owner/land loser,” the judges observed.

Though Section 105 exempts application of certain provisions of RFCT Act to acquisitions made under the NH Act, a notification issued by the Union Ministry of Rural Development on August 28, 2015 had ordered that the provisions of 2013 Act on determination of compensation, rehabilitation, resettlement and provision of infrastructure amenities would be made applicable to all the 13 purposes for which certain exemptions had been carved out.

On the petitioner’s contention that doing away with the requirement of obtaining the consent of grama sabhas amounted to discrimination, the judges said: “We wholly disagree with such an argument because essentially both enactments (RFCT and NH Acts) have to be treated together and essentially to be read as a same piece of legislation.”

They held that there was an intelligible differentia in granting certain exemptions to linear projects.

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