Oral Judgment:

Anil S. Kilor, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the respective parties.

3. In these petitions, the issue involved is similar. Hence, we have heard and decided these petitions together by this common judgment. Writ Petition No.3846 of 2024 is taken for reference and as a lead writ petition.

4. The petitioners, by way of the present petitions, pray for directions to the respondents to grant compensation for their acquired land as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the “Act of 2013”), more particularly, First Schedule thereunder.

5. The brief facts of the present case are as under :

Respondent No.3-Coal India Ltd. issued a notification on 26/06/2019 under Section 4(1) of the Coal Bearing Areas (Acquisition & Development) Act, 1957 (hereinafter referred to as the “Act of 1957”), and through respondent No.4-Western Coalfields Ltd. (for short, “WCL”) acquired the land admeasuring 252.97 hectares from Villages Bina and Bhanegaon, which includes the land of the petitioners.

The aforesaid acquisition was made for Bhanegaon Open Cast Mine (Phase-III), Nagpur Area, District Nagpur.

6. The Government of India issued notification under Section 113 read with Section 105(3) of the Act of 2013, on 28/08/2015, making First, Second and Third Schedules to the Act of 2013 applicable to the 13 enactments specified in Fourth Schedule of the Act of 2013, one of the said enactments is the Act of 1957.

7. Thus, it is the case of the petitioners that the compensation is to be determined as per the First Schedule of the Act of 2013, as their lands were acquired under the Act of 1957. Hence, these petitions.

8. We have heard the learned counsel for the respective parties.

9. Shri Sunil Manohar, learned Senior Advocate, assisted by Shri Amol Patil, learned counsel for the petitioners, argues that as per the mandate of sub-section (3) of Section 105 of the Act of 2013, the Central Government issued notification dated 28/08/2015 under Section 113 of the Act of 2013 and subsequent to the same, the Government of India issued clarifications dated 04/08/2017 and 30/03/2018 as regards the applicability of First, Second and Third Schedules to the Act of 2013 to the cases of acquisition under the Act of 1957. It is, therefore, argued that the compensation towards the lands owned by the petitioners acquired by the respondent-WCL shall be determined as per First Schedule to the Act of 2013 and as far as other benefits are concerned, the petitioners shall have option to go for better benefits.

10. It is further argued that the Hon’ble Supreme Court of India had an occasion to deal with the similar issue as involved in the present petition, in the case of Mahanadi Coalfields Limited and another Vs. Mathias Oram and others, reported in (2013) 16 SCC 11. It is submitted that the present case is sqaurely covered by the said judgment, wherein the Hon’ble Supreme Court of India has held that in view of notification issued by the Government of India under Section 113 of the Act of 2013, on 28/08/2015, the determination of compensation as well as calculation and disbursement, resettlement, entitlement and rehabilitation measures have to be in terms of First, Second and Third Schedules to the Act of 2013. It is, therefore, submitted that the petitioners are entitled for the prayers made in the present petitions.

11. Shri Bhandarkar, the learned counsel appearing for the petitioners in Writ Petition No.4007 of 2023, has reiterated the submissions made by Shri Manohar, learned Senior Advocate. He has further relied upon the judgment of the Hon’ble Supreme Court of India in the case of National Highways Authority of India vs. P. Nagaraju reported in [[2022] 15 SCC 1]. He submits that the issue involved in the present writ petitions is no more res-integra after the Hon’ble Supreme Court of India in the above referred judgment has held that the benefits available to the land owners under the Act of 2013 are to be also available to the land owners whose lands are acquired under the thirteenth enactments specified in the fourth Schedule to the Act of 2013. It is submitted that since the Act of 1957 is one of the thirteen enactments specified in the Fourth Schedule to the Act of 2013, the respondent-WCL cannot be allowed to deviate from the law laid down in the above referred judgment in the case of P. Nagaraju (supra).

12. On the other hand, Shri Kaptan, learned Senior Advocate, assisted by Shri C.S. Samudra, learned counsel for the respondent Nos.3 to 6, submits that the respondent-WCL has been following the law laid down by this Court in the case of Roopam Ravindra Dhote Vs. Union of India and others in Writ Petition No.1161 of 2018 decided on 17/04/2025 and the judgment in the case of Gangadhar Karbhari Jadhav Vs. Union of India, reported in (2023) 4 AIR Bom R 146. It is argued that in the case Gangadhar (supra), the Co-ordinate Bench of this Court has distinguished the judgment of the Hon’ble Supreme Court of India in the case of Gangadhar (supra). He further submits that the clarifications issued on 04/08/2017 and on 30/03/2018 by the Government of India, Ministry of Coal, are not binding on the respondent-WCL, as they are in the nature of instructions. He, therefore, submits that the respondent-WCL has not committed any error in determining the compensation as per the Act of 1957.

13. In reply, Shri Manohar, learned Senior Advocate for the petitioners, argues that the law declared by the Hon’ble Supreme Court of India is a declaration under Article 141 of the Constitution of India and it is binding on all the Courts in India, therefore, the High Court or any Subordinate Court cannot disregard or depart from the law declared by the Hon’ble Supreme Court of India under Article 141 of the Constitution of India. It is therefore submitted that departure from the law laid down and declared by the Hon’ble Supreme Court of India in the case of Mahanadi (supra) by this Court in the case of Gangadhar (supra) or in the case of Roopam (supra) is not permissible. To substantiate his argument, he has placed reliance upon the judgments of the Hon’ble Supreme Court of India in the case of Director of Settlement, A.P. and others Vs. M.R. Apparao and another, reported in (2002) 4 SCC 638, and in the case of M/s. Kesho Ram and Co. and others etc. Vs. Union of India and others, reported in (1989) 3 SCC 151.

14. Shri Kaptan, learned Senior Advocate, in reply, submits that in case of ignorance of some provisions or decision not express and not founded on reasons, nor they proceed on consideration of issue, cannot be deemed to be a law declared or to have a binding effect, as contemplated by Article 141 of the Constitution of India. For this purpose, he has placed reliance upon the judgment of the Hon’ble Supreme Court of India in the case of State of U.P. and another Vs. Synthetics and Chemicals Ltd. and another, reported in (1991) 4 SCC 139.

15. Mr.C.S.Kaptan, learned Senior Advocate, in reply to the argument made by Senior Advocate Mr.Sunil Manohar, submits that once there is a declaration under Article 141 of the Constitution of India by the Hon’ble Supreme Court, the High Court cannot take different view or interpret the judgment of the Hon’ble Supreme Court, and has submitted that in the case of ignorance of some provisions or a decision not expressing, and not founded on reasons, nor it yet proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution of India. To substantiate his submission, he has placed reliance on the judgment of Hon’ble Supreme Court in the case of State of U.P.and another v. Synthetics and Chemicals Ltd.and another, reported in (1991) 4 SCC 139.

16. Having heard the rival submissions of the parties and having gone through the record, it is evident that the whole case of the petitioners is based on the notification dated 28/08/2015, issued under Section 113 of the Act of 2013, by the Union of India and clarifications dated 04/08/2017 and 30/03/2018 issued in pursuance to the aforementioned notification dated 28/08/2015.

17. The above referred notification and clarifications are in respect of the determination of compensation, rehabilitation and resettlement. As per the said notification and clarifications, the First, Second and Third Schedules of the Act of 2013 shall apply to the cases of the land acquisition under the Act of 1957. Thus, the prayers of the petitioners in the present petition is to determine the compensation as per the First Schedule of the Act of 2013.

18. However, the said prayer is being opposed by the respondent-WCL, mainly on the ground that the Coordinate Bench of this Court in the cases of Gangadhar (supra) and Roopam (supra) have held contrary to the prayers of the petitioners, and therefore, according to the respondent-WCL, the said prayers cannot be granted.

19. To examine the matter on merit and to decide the entitlement of the petitioners to receive the compensation on the basis of the determination made as per the First Schedule to the Act of 2013, it will be beneficial and apposite to refer to sub-section (3) of Section 105 of the Act of 2013, which reads thus:

                    Section 105 — Non-application or modified application of the Act (1) & (2) (***)

                    (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, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule, with such exceptions or modifications as may be specified in the notification."

20. From the language of sub-section (3) of Section 105, it is evident that the Central Government shall, by notification within one year from the date of commencement of the Act of 2013, direct that any of the provisions of the Act of 2013 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 with such exceptions or modifications that do not reduce compensation or dilute the provisions of this Act relating to the compensation, rehabilitation or resettlement, as maybe specified in the notification, as the case may be.

21. In the Fourth Schedule of the Act of 2013, one of the enactments is the Act of 1957, at Serial No.11.

22. Thus, the notification dated 28/08/2015 issued by the Union of India under Section 113 of the Act of 2013, as mandated by sub-section (3) of Section 105 thereof, made the First, Second and Third Schedules to the Act of 2013 applicable to the cases of the land acquisition under the Act of 1957.

23. The Hon’ble Supreme Court of India, in the case of Mahanadi (supra), had an occasion to examine the applicability of the Act of 2013 to the case of acquisition made under the Act of 1957. A specific point in this regard was considered by the Hon’ble Supreme Court of India as point No.2 and, after considering the above referred Section 105 of the Act of 2013 and other relevant provisions, has recorded its findings as under:

                    “27. When the R&R Act, 2013 was brought into force with effect from 01.01.2014, the acquisitions in favour of MCL continued to be under the CBA Act. By Section 105(3) of the R& R Act, 2013, the Central Government was obliged to issue the notification within one year from the date of commencement of that Act to ensure that its provisions relating to the determination of compensation, were in accordance with the provisions in the First Schedule and rehabilitation and resettlement in accordance with the Second and Third Schedules of that Act. It was pursuant to this mandate, that on 28.08.2015 the Central Government issued a notification in terms of Section 105(3). However, the Central Government chose to exercise its power to remove difficulties, under Section 103. This seems to be because the notification was issued on 28.08.2015- beyond the period prescribed in Section 105(3). Nevertheless, the spirit of the statutory injunction to make the beneficial provisions of the R&R Act, 2013 applicable to compensation determination and resettlement or rehabilitation measures, was complied with in effect and substance.

                    28. ...

                    29. There can be no doubt that for the period between 01.01.2014 and 28.08.2015, Ongoing acquisitions processes under enactments specified in the Fourth Schedule - such as the CBA Act - were out of purview of the R&R Act, 2013. However, with the publication of the notification under Section 113 read with Section 105(3) on 28.08.2015, the legal position underwent a transformation. Acquisition processes, especially compensation determination as well as calculation and disbursement of resettlement entitlements and rehabilitation measures had to be in terms of the First, Second and Third Schedules to the Act.

                    30 to 32 (***)

                    33. This court is of the opinion that with the issuance of the notification on 28.10.2015 and the clarification by the Central Government to MCL on 04.08.2017, the question of paying or depositing compensation in terms of the CBA Act cannot arise after 28.10.2015, This is because the requirement of compensation determination under the CBA Act ceased by virtue of Section 105(3). The statutory regime under the CBA Act was superseded and substituted with the provisions of the First Schedule to the R&R Act, 2013.”

24. It is evident from the above referred observations that it is held that pursuant to the mandate under Section 105(3) of the Act of 2013, the Government of India issued notification dated 28.08.2015, declaring the applicability of the First, Second and Third Schedules to the Act of 2013 to the cases of acquisition under the Act of 1957. Thus, the determination of the compensation in such matters shall be in accordance with the provisions of the First Schedule and the rehabilitation and resettlement shall be in accordance with the Second and Third Schedules of the Act of 2013.

25. It is further evident from the judgment of the above referred case of Mahanadi (supra) that the Hon’ble Supreme Court of India has also taken into consideration the exercise of power by the Union of India under Section 113 of the Act of 2013, which relates to the removal of difficulties. The Hon’ble Supreme Court of India has categorically noted that such power under Section 113 of the Act of 2013 was exercised to give effect of the notification dated 28/08/2015, which was issued beyond the period prescribed under sub-section (3) of Section 105 of the Act of 2013. Then, the Hon’ble Supreme Court of India has further observed that the spirit of statutory injunction to make the beneficial provisions to the Act of 2013 applicable to compensation, determination and resettlement or rehabilitation measures, was complied with in effect and substance.

26. It has further observed that the publication of the notification under Section 113 read with Section 105(3) of the Act of 2013 on 28.08.2015, the legal position underwent a transformation. Thus, the Hon’ble Supreme Court of India, in clear terms, after considering the relevant provisions and the judgments in this regards, has held that the acquisition processes, especially compensation determination as well as calculation and disbursement of resettlement entitlements and rehabilitation measures had to be in terms of the First, Second and Third Schedules to the Act of 2013.

27. It is to be noted that similar view was taken by the Hon’ble Supreme Court of India in the case of P. Nagaraju (supra) in relation to the enactment, namely the National Highways Act, 1956, which is listed at Serial No.7 in Fourth Schedule to the Act of 2013. The relevant paragraphs of the aforesaid judgment read thus:

                    “25. While arriving at the conclusion that the Notification bearing S.O. No. 2368(E) dated 28-8-2015 whereunder the provisions of the Rfctlarr Act, 2013 are made applicable, it is noted that the NH Act is also one of the enactments specified in the Fourth Schedule. The relevant portion of the Notification dated 28-8-2015 reads as hereunder:

                    “And whereas, the Central Government considers it necessary to extend the benefits available to the landowners under the Rfctlarr Act to similarly placed landowners 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 landowners and uniformly apply the beneficial provisions of the RfctlarrAct, 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 landowners;

                    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.”

                    26. ...

                    27. In that view of the matter, though Section 3-G(7)(a) of the NH Act provides the parameters to be taken into consideration, it only provides the basic parameters to be taken note of, for determining the amount payable as compensation. While applying the said parameters for determination of compensation, since the Rfctlarr Act, 2013 is also applicable as the NH Act is contained in the Fourth Schedule, the factors as provided under Sections 26 and 28 of the Rfctlarr Act, 2013 including the seventh factor will also be applicable in appropriate cases for the determination of the market value as fair compensation for the acquired land.

                    28. When land is acquired from a citizen, Articles 300-A and 31-A of the Constitution will have to be borne in mind since the deprivation of property should be with authority of law, after being duly compensated. Such law should provide for adequately compensating the landloser keeping in view the market value. Though each enactment may have a different procedure prescribed for the process of acquisition depending on the urgency, the method of determining the compensation cannot be different as the market value of the land and the hardship faced due to deprivation of the property would be the same irrespective of the Act under which it is acquired or the purpose for which it is acquired. In that light, if Section 28 of the Rfctlarr Act, 2013 is held not applicable in view of Section 3-J of the NH Act, the same will be violative of Article 14 of the Constitution. In that circumstance, the observation in Tarsem Singh [Union of India v. Tarsem Singh, (2019) 9 SCC 304 : (2019) 4 SCC (Civ) 364] that Section 3-J of the NH Act is unconstitutional to that extent though declared so while on the aspect of solatium and interest, it is held so on all aspects relating to determination of compensation.”

28. From the above referred observations, it is evident that a specific issue in respect of the applicability of the First, Second and Third Schedules to the Act of 2013, was the issue involved in respect of the National Highways Act of 1956. It is also evident that the Hon’ble Supreme Court of India has taken into consideration the relevant provisions and notification dated 28.08.2015 and thereupon, it is held that the benefits available to the landowners under the Act of 2013 are to be also available to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule of the Act of 2013.

29. Thus, according to us, the issue involved in the present case is squarely covered by both the above referred judgments and the prayers of the petitioners to determine the compensation of their lands as per the First Schedule to the Act of 2013 needs tobe allowed.

30. However, it is the case of the respondents that the Coordinate Bench of this Court in the case of Gangadhar (supra) and Roopam (supra) has held contrary to the law laid down in the above referred judgments by distinguishing the judgments in the case of Mahanadi (supra).

31. Let us therefore, at this juncture, examine the relevant paragraphs of the above referred judgments in the case of Gangadhar (supra), wherein the Coordinate Bench of this Court has held thus:

                    “46. The question that arises for consideration of this Court is; (i) Whether the acquisition of the Right of user of the land under the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 would result into inconsistency with the provisions of the acquisition under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as the said PMP Act having been automatically inserted under the Fourth Schedule at Serial No. 8 of Section 105 of the Fair Compensation Act?

                    (ii) Whether all the provisions of the Fair Compensation Act would apply to the requisition in question under PMP Act including the determination of compensation?

                    (iii) Whether the Central Government having failed to issue Notification within one year from the date of commencement of the Fair Compensation Act under Section 105(3) the Central Government could have invoked Section 113 of the Fair Compensation Act, invoking powers to remove difficulties order and can provide that provisions relating determination of compensation under the Fair Compensation Act provided under I, II and III Schedule shall apply to the land acquisition under the enactment specified in the IV Schedule or not ?

                    47. It is an admitted position that the Notification under Section 3 of the PMP Act for declaration of the acquisition of the right of user under Section 6 of the PMP Act was issued on 6th May, 2009 for the land bearing Survey No. 47/1/A/1(Old Survey No. 81/1A/1) admeasuring Area Hectare 0.46 Are. Similarly a Notification under Section 6 of the said PMP Act was issued by Respondent No. 1 on 9th March, 2010 for the land bearing Survey No. 49/13/A/24 (Old Survey No. 83/13+24) admeasuring Hectare 0.70 Are. With effect from 1st January, 2014, the provisions of the Fair Compensation Act came into effect. Admittedly, the said PMP Act has been prescribed at Serial No. 8 of the IV Schedule under Section 105 and Section 113 of the said Fair Compensation Act.

                    48. It would be appropriate to refer to Section 105 of the Fair Compensation Act at this stage, which read thus:

                    “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 subsection (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, 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 113 of the Fair Compensation Act reads thus:

                    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.”

                    49. It is not in dispute that an Ordinance dated 31st December, 2014 was promulgated thereby inter alia, amending Section 105 of the Fair Compensation 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 Fair Compensation Act w.e.f. from 1st January, 2014. The said First Ordinance dated 31st December, 2014 however, lapsed.

                    50. The Respondent No. 1 thereafter issued Ordinances bearing No. 4 of 2015 and No. 5 of 2015 for continuing the provisions of the Fair Compensation Act to the Acts specified in the Fourth Schedule. The said Ordinances also admittedly also lapsed. The Central Government proposed to amend Section 105 of the Fair Compensation Act in a similar manner, what was proposed by Ordinance No. 9/2014. It is thus clear without any reasonable doubt that Notifications prescribed under Section 105(3) could not be issued within one year from the date of commencement of the Fair Compensation Act i.e. 1st January, 2014 and draft was admittedly not placed before both the House of Parliament.

                    51. Section 105(1) clearly provides that 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. It is thus clear that since no Notification was issued within one year from the date of commencement of the Fair Compensation Act in accordance with the mode and manner prescribed under Section 105(4) of the Fair Compensation Act, Section 105(1) which was subject to compliance of Section 105(3) of the Fair Compensation Act would not apply to the enactments relating to land acquisition specified in the Fourth Schedule including the provisions of PMP Act. In our view, since those three ordinances were not converted into Act within six weeks in view of Article 123 of the Constitution of India, those ordinances lapsed.

                    52. The next question that arises for consideration before this Court is whether the Central Government having failed to issue Notification under Section 105(3) under the mode and manner prescribed under Section 105(4) within the time prescribed could have extended the benefits of compensation under the provisions of the Fair Compensation Act applicable to the acquisition under the provisions of the Fair Compensation Act by invoking power under Section 113 of the Right to Fair Compensation Act or not?

                    53. Admittedly in this case, Central Government issued an order dated 28th August, 2015 stating that the provisions of the Fair Compensation Act relating to the determination of the 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. In our view, the Removal of Difficulties Order being in the nature of executive order is not enforceable under Article 73 of the Constitution of India and cannot amend the provisions of Section 105(1) of the Fair Compensation Act. Fourth Schedule thus did not come into effect atleast in so far as PMP Act is concerned.

                    54. A perusal of the said order clearly indicates that the Reference has been made to the Ordinance 9 of 2014 promulgated on 31st December, 2014 thereby, inter alia, amending Section 105 of the Fair Compensation 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 Fair Compensation Act. In such order reference is also made to Ordinance 4 of 2015 promulgated on 3rd April, 2015 to give continuity to the provisions of the Fair Compensation Act (Amendment) Ordinance, 2014. The Central Government has also made reference to the Second Ordinance, 2015 (5 of 2015) promulgated on 30th May, 2015 to give continuity to the provisions of the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015). The said order states that the replacement Bill relating to the RFCTLARR (Amendment) Ordinance, 2015 (4 to 2015) was referred to the Joint Committee of the House for examination and report and the same is pending with the Joint Committee.

                    55. It is further stated that as per the provisions of Article 123 of the Constitution, the Fair Compensation Act (Amendment) Second Ordinance, 2015 (5 to 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 and resettlement to the cases of land acquisition under the 13 Acts specified in the Fourth Scheduled to the Fair Compensation Act as extended to the land owners under the said Ordinance.

                    56. It is further provided in the said order that the Central Government considers it necessary to extend the benefits available to the land owners under the Fair Compensation Act to similarly placed land owners whose land 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 Fair Compensation 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.

                    57. The Central Government accordingly exercised the powers conferred by sub-section (1) of Section 113 of the Fair Compensation Act and issued an order, called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (Removal of Difficulties) Order, 2015. It is provided that the said order would come into force with effect from the 1st day of September, 2015. It was made clear by the said order that the provisions of the Fair Compensation 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 all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act.

                    58. The Petitioner has not disputed that the Petitioner is already compensated to the extent of land utilized by the Respondents towards the right of user. The Notification dated 4th January, 2022 under Section 3 (1) of the PMP Act clearly provides that for the purpose of laying the Pipeline, Government of India declared its intention to acquire the Right of User therein. The objects and reasons of the PMP Act clearly indicates that as a result of the implementation of plans for development of petroleum resources in the Country, it is anticipated that in next few years there will be a substantial increase in the production of crude oil, natural gas and petroleum products by the public sector oil fields and refineries in India. It has, therefore become necessary to lay petroleum piplines in the Country to serve as an efficient and cheap means of transportation and distribution of petroleum and petroleum products.

                    59. The Constitutional Validity of the provisions of the PMP Act was challenged by one of parties before the Gujarat High Court. The Gujarat High Court dismissed the said petition and upheld the validity of the provisions of the said PMP Act. The Supreme Court in case of Laljibhai Kadvabhai Savaliya v. State of Gujarat [(2016) 9 SCC 791] also upheld the validity of the provisions of the PMP Act. Supreme Court in the said judgment after construing the provisions of the PMP Act held that Section 18 of the PMP Act has specifically laid down that the provisions of PMP Act shall be in addition to and not in derogation of any other law for the time being in force relating to acquisition of land. The PMP Act is thus a special enactment designed to achieve the purpose of laying pipelines as efficient means of transportation and with this idea it is only the right of user in the land to lay such pipelines which is acquired.

                    60. The Supreme Court held that the right of user sought to be taken over under the provisions of PMP Act amounts to acquisition of one of the facets of property rights which inhere in the owner/occupier. For the acquisition of such right of user, the compensation is prescribed in terms of Section 10 of the PMP Act. There are two elements of compensation under the Section 10. The first part deals with any damage, loss or injury sustained by any owner/occupier as a result of exercise of powers conferred by Sections 4, 7 and 8 of the PMP Act that is to say the actual damage, loss or injury sustained because of entry upon and/or digging or marking levels and survey of land under Section 4 or while actual laying of the pipeline including digging of trenches and carrying of requisite material for such operations under Section 7 or at any stage of maintenance, examinations, repairing and altering or removing of pipeline in terms of Section 8 of the PMP Act.

                    61. It is held that the measure for determining such compensation is given with sufficient clarity in sub-section (3) of Section 10. The idea is to compensate the owner/occupier for actual damage, loss or injury sustained by him as a result of the operations carried out in terms of Section 4, Section 7 or Section 8 of the Act. Supreme Court held that the damage/loss or injury to the property is separately dealt with under first part of Section 10 and has to be compensated in toto.

                    62. In paragraph 24 of the said judgment, the Supreme Court held that the provisions of the PMP Act do specify the principles and the manner in which the compensation is to be determined. Not only the actual damage, loss or injury suffered as a result of exercise of various activities in terms of Section 4, 6, 7 are compensated in toto but additionally compensation linked to the market value of lands is also to be given for acquisition of right of user in respect of such land. What is taken over is mere right of user to lay the pipeline in the subsoil of land in question, leaving the title to the land as well as the right to possess that land intact in the hands of the landowner/occupier. It is no doubt that the enjoyment thereof after the pipelines are laid is impaired to a certain extent, in that the owner/occupier cannot raise any permanent construction or cause any excavation or plant any trees. Barring such restrictions, the enjoyment and the right of possession remains unaltered. It is held that the principles of compensation as detailed in the PMP Act are thus reasonable and cannot in any way be termed as illusory.

                    63. A decision of the Division Bench of this Court in case of Gas Authority of India Limited v. State of Maharashtra [(2005) 6 Bom CR 527] has held that bare perusal of the sections of PMP Act would reveal that the said Act is a complete Code for dealing with a particular situation. Section 3 provides for the issuance of a Notification specifying that it was necessary to acquire the right of user of the of the land for the purpose of laying a pipe-line.

                    64. Supreme Court in case of Ashoka Marketing Ltd. v. Punjab National Bank [(1990) 4 SCC 406] has held that one such principle of statutory interpretation which is applied is contained in the latin maxim : generalia specialibus non derogant (a general provision does not derogate from a special one.) The principles laid down in the said judgment apply to the facts of this case.

                    65. It is thus clear beyond any reasonable doubt that the provisions of the Fair Compensation 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 all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Fair Compensation Act. As such, the circumstances prescribed under Section 24 could be extended only by virtue of issuance of Notification with in the time prescribed under Section 105(3) and not otherwise.

                    66. Section 105(3) provides that 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.

                    67. Supreme Court in the case of State of West Bengal v. Anindya Sundar Das [2022 SCC OnLine SC 1382] held that where there is a specific provision, as in that case Section 8(2)(a), it was not open to the State Government to conjure up a lacunae or omission and purportedly exercise the power to remove difficulties. It is held that the State Government chose the incorrect path under Section 60 by misusing the “removal of difficulty clause” to usurp the power of the Chancellor to make the appointment. A Government cannot misuse “removal of difficulty clause” to remove all obstacles in its path which arise due to statutory restrictions. Allowing such actions would be antithetical to the rule of law. Misusing the limited power granted to make minor adaption and peripheral adjustments in a statute for making its implementation effective, to side-step the provisions of the statute altogether would defeat the purpose of the legislation.

                    68. The Supreme Court held that High Court was justified in coming to the conclusion that “in the guise of removing the difficulties, the State cannot change the scheme and essential povisions of the Act.” The said judgment in case of State of West Bengal v. Anindya Sundar Das (supra) applies to the facts of this case. The power conferred upon the Central Government under Section 113 of the Fair Compensation Act could be exercised only if any difficulty arises in giving effect to the provisions of that Act. In that case, 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. Such an order made under this Section also have to be laid before each House of Parliament.

                    69. The said impugned order issued by the Central Government under Section 113 clearly indicates that the three Ordinances issued by the Central Government under Section 105(3) admittedly lapsed and could not be made effective. The Central Government having failed to issue such Notification within the time prescribed and in the mode and manner prescribed under Section 105, there is no scope of any extension of time to issue such Notification beyond the period of one year from 1st January, 2014, when the said Fair Compensation Act came into effect.

                    70. In our view, the failure on the part of the Central Government in following the said mandatory procedure could not be ratified by issuance of the Removal of Difficulty Order by invoking Section 113 of the Fair Compensation Act. The said removal of difficulty order issued by the Central Government is without jurisdiction, as the same is issued not for making such provision or give such directions not inconsistent with the provisions of the Act but is to cover up the default in not issuing notification within a time prescribed under Section 105(3). The time prescribed under section 105(3) to issue such compensation in the mode and manner prescribed under Section 105(3) is sacrosanct. In these circumstances, the Central Government could not have exercised powers vested under Section 113 of the Fair Compensation Act. Central Government under the guise of ‘Removal of Difficulties’ cannot overcome the lapses in not complying with the mandatory provisions prescribed in Section 105(3).

                    71. Supreme Court in case of Madeva Upendra Sinai v. Union of India has held that the existence or arising of a “difficulty” is the sine qua non for the exercise of the power under that clause cannot be invoked at all. Again the “difficulty” contemplated by the clause must be a difficulty arising in giving effect to the provisions of the Act and not a difficulty arising aliunde, or an extraneous difficulty. Further the Central Government can exercise the power under the clause only to the extent it is necessary for applying or giving effect to the Act etc., and no further. It may slightly tinker with the Act to round off angularities, and smoother the joints or remove minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. It is held that in no case, can it, under the guise of removing a difficulty, change the scheme and essential provision of the Act. The judgment of the Supreme Court in case of Madeva Upendra Sinai v. Union of India (supra) applies to the facts of this case.

                    72. In our view, the impugned order and notification under Section 113 of the Fair Compensation Act are issued not to give effect to any difficulty arising in giving effect to the provisions of the Act but is issued to cover up the lapses made by the Government by not issuing notification under Section 105(3) within the time prescribed under Section 105(3) which is not permissible. For such lapses or for curing the difficulty in following mandatory procedure cannot be cured by invoking power under Section 113(1) of the Fair Compensation Act r/w 105 having been not issued in the mode and manner prescribed thereunder. By taking shelter of Section 113 of the Act, Central Government could not have given the effect of Notification of Section 105(3) by issuing removal of difficulties order.

                    73. A perusal of Section 105(1) of the Fair Compensation Act clearly indicates that the said Section is subject to sub-section 3. If the conditions prescribed under sub-section 3 of Section 105 are not complied with, Section 105 (1) shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule. In our view, the order passed by the Central Government by invoking powers under Section 113 is inconsistent with the provisions of Section 105(1) r/w. Section 105(3). On this ground also, the impugned order deserves to be quashed and set aside.

                    74. In so far as the judgment of the Supreme Court in case of Mahnadi Coal Fields Ltd. v. Mathias Oram [2022 SCC OnLine SC 1508] relied by Mr. Paranjape, Learned Counsel for the Petitioner is concerned, Supreme Court in the said judgment has held that when the Fair Compensation Act is brought into force w.e.f. 1st January, 2014, the acquisition in favour of the Mahnadi Coal Fields Ltd. continued to be under the provisions of the Coal Bearing Areas (Acquisition and Development) Ac, 1957 to determine and disburse compensation payable to landowners as expeditiously as possible, preferably within six months.

                    75. It is held that under Clause (3) of the Coal Bearing Areas (Acquisition and Development) Act, 1957, the Central Government was obliged to issue the notification within one year from the date of commencement of that Act to ensure that its provisions relating to the determination of compensation, were in accordance with the provisions in the First Schedule and rehabilitation and resettlement in accordance with with the Second and Third Schedules of that Act. It was pursuant to this mandate, that on 28.08.2015 the Central Government issued a notification in terms of Section 105(3).

                    76. However, the Central Government chose to exercise its power to remove difficulties, under Section 113. This seems to be because the notification was issued on 28.08.2015-beyond the period prescribed in Section 105(3). In the facts of that case, the Award was not declared before 1st January, 2014 i.e. the date on which the Fair Compensation Act came into force. The land owners had also thus invoked the provisions of Section 24 of the Fair Compensation Act.

                    77. In view of the judgment of Constitutional Bench of the Supreme Court in case of Indore Development Authority v. Manohar Lal (supra). [(2020) 8 SCC 395], in our view, the said judgment of the Supreme court in case of Mahnadi Coal Fields Ltd. v. Mathias Oram (supra) is thus, clearly distinguishable on the facts and would not assist the case of he Petitioner. In the facts of this case, the compensation had already been paid. The acquisition of right of user of the Petitioner's land were passed in or about 2000 to 2010.”

32. In the case of Roopam (supra), the Co-ordinate Bench of this Court has held thus:

                    “16. Though it is sought to be contended by the learned Counsel for the petitioners that the acquisition of the aforesaid lands, could be directed by adverting to Section 82 in Chapter XI of the RTFFLR Act, it is however apparent, that the RTFFLR Act is not applicable to acquisitions under the CBA, in view of the fact that the said enactment is included at Sr. 11 in the IVth Scheduled of the RTFFLR Act. Though Dr. Sirpurkar, learned Counsel for the petitioner had adverted to two communications by the Government of India in the Department of Ministry of Coal dated 04.10.2018 and 30.03.2018 to contend, that the provisions of the RTFFLR Act are being adopted by the Ministry of Coal for determining the compensation, which are taken on record and marked as X and Y, for the purposes of identification, however, we find that these communications cannot be considered as a substitute for the notification RTFFLR 105 (3) of the RTFFLR Act so as to make it applicable for acquisitions under the CBA. Though learned counsel for the petitioners has also relied upon the Notification dated 28.08.2015 to contend that the RTFFLR Act has been made applicable to proceedings under the CBA, we however, find ourselves unable to agree with the same as the said Notification has been issued in exercise of the powers under Section 113 of the RTFFLR Act, which cannot be a substitute for Notification under Section 115(3) of the said Act. The plea, therefore, that the RTFFLR Act, is applicable for the purpose of acquisition under the CBA, is rejected.”

33. In the case of Roopam (supra) admittedly, the judgment of the Hon’ble Supreme Court of India in the case of Mahanadi (supra) or P. Nagaraju (supra) were not referred to and considered.

34. In the case of Gangadhar (supra) though Mahanadi (supra) was referred, however, it is held that it is distinguishable on facts.

35. There cannot be any dispute about the binding effect of law declared by the Hon’ble Supreme Court of India under Article 141 of the Constitution of India on all the Courts in India.

36. In the case of M/s.Kesho Ram and Company (supra) the Hon’ble Supreme Court of India has held that binding effect of the decision of the Hon’ble Supreme Court of India does not depend upon whether a particular argument was considered or not, provided the point with respect of which the argument is advanced subsequently, was actually decided in the earlier decision.

37. The Hon’ble Supreme Court of India in the case of M. R. Apparao (supra), has held thus:

                    “7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur AIR 1973 SC 7948). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity, (See Narinder Singh v. Surjit Singh and Kausalya Devi Bogra v. Land Acquisition Officer-10.) We have to answer the first question bearing in mind the aforesaid guiding principles. We may refer to some of the decisions cited by Mr Rao in elaborating his arguments contending that the judgment of this Court dated 6-2-1986f cannot be held to be a law declared by the Court within the ambit of Article 141 of the Constitution. Mr Rao relied upon the judgment of this Court in the case of M.S.M. Sharma v. Sri Krishna Sinhaff wherein the power and privilege of the State Legislature and the fundamental right of freedom of speech and expression including the freedom of the press was the subject-matter of consideration. In the aforesaid judgment it has been observed by the Court that the decision in Gunupati Keshavram Reddy v. Nafisul Hasan relied upon by the counsel for the petitioner which entirely proceeded on a concession of the counsel cannot be regarded as a considered opinion on the subject. There is no dispute with the aforesaid proposition of law.”

38. The Hon’ble Supreme Court of India in the case of Secunderabad Club vs. Commissioner of Income -Tax (and other appeals) reported in [(2023) SCC Online SC 1004] has observed that for the purpose of Article 141 of the Constitution of India, the High Court may interpret, ascertain and apply the true ratio of the Supreme Court’s judgment and distinguished it where the factual matrix is materially different but such exercise cannot be used to disregard or depart from the law actually declared by the Supreme Court of India under Article 141 of the Constitution.

39. From the above referred observations made by the Hon’ble Supreme Court of India, it is evident that Article 141 empowers the Supreme Court to declare the law. Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The law which will be binding under Article 141 of the Constitution would, therefore, extend to all observations of points raised and decided by the Court in a given case. When the Supreme Court decides the principle/issue, it would be the duty of the High Court or sub-ordinate Courts to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity.

40. In the teeth of the above referred well settled principles of law as regards, the binding effect of the law declared under Article 141 of the Constitution of India, it is evident that since the Hon’ble Supreme Court of India in the case Mahanadi (supra) and P. Nagaraju (supra) has dealt with the specific issue about the applicability of the benefits available to the land owners under the Act of 2013 to the land owners whose lands are acquired under any of the thirteenth enactments specified in the Fourth Schedule to the Act of 2013 and held in affirmative, no Court can disregard or depart from the law declared in those judgments by the Hon’ble Supreme Court of India under Article 141 of the Constitution of India.

41. As held by the Hon’ble Supreme Court of India in the case of Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur reported in [AIR 1973 SC 7948] and referred to in the judgment of M.R.Apparao (supra), a judgment of the High Court which refuses to follow the decision and directions of the Supreme Court is a nullity, the respondent-WCL cannot take shelter of the judgments of the co-ordinate Bench of this Court in the case of Gangadhar and Roopam and others (supra) to deny the benefits of the First, Second and Third Schedule to the Act of 2013 to the petitioners in this case.

42. Judgment in the case of Synthetics and Chemicals Ltd. (supra) relied upon by the respondent-WCL does not apply to the instant case as the Hon’ble Supreme Court of India in the cases of Mahanadi and P.Nagaraju (supra) has decided the issue involved in the present writ petitions after considering the relevant provisions and authorities on the said point. The judgment in Synthetics and Chemicals Ltd. (supra) is applicable where the conclusion extracted was not preceded by any discussion and no reason or rationale can be found in the order where the question arises the conclusion is the law declared under Article 141 of the Constitution of India or it is per incuriam, is liable to be ignored.

43. In the circumstances, we pass the following order:

                    (i) The writ petitions are allowed.

                    (ii) It is held that the First, Second and Third Schedule to the Act of 2013 are applicable to the case of the petitioners-land owners whose lands have been acquired under the Act of 1957 which is one of the 13 enactments under the Fourth Schedule to the Act of 2013.

                    (iii) The petitioners are at liberty to go for better benefits under the Act of 1957, if they so desire.

44. Rule is made absolute in the aforesaid terms. No order as to costs.