Karnataka High Court
The Ugar Sugar Works Limited vs The State Of Karnataka on 6 January, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
R
1
IN THE HIGH COURT OF KARNATAKA AT
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
W.P.No.108602/2019 (LA-RES)
BETWEEN:
The Ugar Sugar Works Limited
A Public Limited Company
Registered under Companies Act, 1956
Having its Registered Office
At Mahavir Nagar, Vakharbhag
Sangli-416 416
Maharashtra State
at Ugar Khurd-591 316
Tq. Athani, Dist-Belagavi
Represented by its
Managing Director. ... Petitioner
(By Sri H.N.Shashidhara, Senior Counsel for
Sri.Anand C.Desai, Advocate)
AND:
1. The State of Karnataka
Dept. of Irrigation
Vidhana Soudha, Dr. B.R.Ambedkar Veedhi,
Bengaluru-560 001
Rep. by its Secretary
2. Karnataka Neeravari Nigam Ltd.,
4th Floor, Coffee Board Building
Dr. B.R.Ambedkar Veedhi, Bengaluru-560 001
Rep. by its Managing Director
2
3. Executive Engineer
Karnataka Neeravari Nigam Ltd.,
Hipparagi Project, R & P
Division No.3
Harugeri-591 220
Tq. Raibag, Dist-Belagavi
4. The Special Land Acquisition Officer
Hipparagi Dam Project
Athani-591 304
Dist- Belagavi
5. The Special Deputy Commissioner
Land Acquisition
Rehabilitation & Resettlement
Major Irrigation Projects
Belagavi-591 101
6. The Land Tribunal Athani
Athani-591 304
Dist. Belagavi
Rep. by its Chairman
7. Shri Ganapati Panchayatan
Samasthan Trust
Sangli-416 416
Dist. Sangli
Maharashtra State
Rep. by its Managing Trustee
Sri. Vijaysingh Madhavrao
Patawardhan
... Respondents
[By Sri.Umesh C.Ainapura, Advocate for R2 & R3
Sri.Shreevatsa S.Hegde, Advocate for R7
Smt.V.Vidyavati, AAG for Vinayak S. Kulkarni
AGA for R1, R4, R5 & R6]
This writ petition is filed under Articles 226 & 227 of the
Constitution of India praying to quash the award passed by the
Respondent No.4, Special Land Acquisition Officer, Hipparagi
3
Dam Project in respect of lands situated at Kusnal Village of
Athani Taluka District Belagavi in award bearing No.LAQ:SR-
70/15-16, Dated: 03.02.2018 proclaimed on 05.02.2018 in
respect of Sy. No.127 (Part) measuring 16 Acres 24 Guntas out
of 30 Acre 14 Guntas produced as per Annexure-A, award
bearing No.LAQ:SR-70/15-16, Dated: 08.02.2018 proclaimed on
09.02.2018 in respect of Sy.No.128 measuring 34 Acres 37
Guntas produced as per Annexure-B, award bearing No.LAQ:SR-
70/15-16, Dated: 14.02.2018 proclaimed on 16.02.2018 in
respect of Sy. No.129 measuring 35 Acres 14 Guntas produced
as per Annexure-C and etc.
This writ petition, having been heard and reserved for
orders on 24/11/2022, coming on for pronouncement of orders,
this day, the Court made the following:
ORDER
1. In this writ petition, acquisition of 86 acres 35 guntas of land situated at Kusanal Village and Ugar Khurd Village of Belagavi District is questioned by the petitioner - Company.
2. Petitioner, a public limited company, contends that it is the tenant of these lands and they were inducted as tenants under registered Lease Deeds dated 04.09.1951 and 16.02.1972. They also contend that they have made an application seeking for conferment of occupancy rights as 4 provided under the Land Reforms Act and the same is pending adjudication before the Land Tribunal.
3. A notification under Section 11(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, hereinafter referred to as "the 2013 Act") was issued on 31.05.2016 proposing to acquire a total of 86 acres 35 guntas of land comprised in Sy.No.127/P1 (measuring 16 acres 24 guntas), Sy.No.128 (measuring 34 acres 37 guntas) and Sy.No.129 (measuring 35 acres 14 guntas) for the purpose of establishment of a Rehabilitation Centre at Kusanal Village as a result of execution of Hippargi Dam Project. This notification was also published in the Gazette on 09.06.2016 vide Annexure-D.
4. On publication of Section 11(1) notification, the authorities served notices on the owner Sri Ganapati Maharaj Sangli, who did not object to the acquisition for the purpose of establishment of a Rehabilitation Centre at Kusanal Village as a result of execution of Hippargi Dam Project. 5
5. It is not in dispute that notices were not served on the petitioner calling upon it to submit objections, if any, to the proposed acquisition.
6. It is stated that a report was submitted to the State Government and the State Government, on consideration of the said report took a decision to acquire the land on 19.10.2016 and consequentially to issue a declaration. Consequently, a declaration under Section 19(1) of 2013 Act was issued in March, 2017 (date not mentioned) and was also published in the Gazette on 06.04.2017 vide Annexure-E.
7. Thereafter, it appears that notices were issued to the land owner and three separate awards were passed i.e., in respect of land bearing Sy.No.127/P1 measuring 16 acres 24 guntas on 03.02.2018 vide Annexure-A, in respect of Sy.No.128 measuring 34 acres 37 guntas on 08.02.2018 vide Annexure-B and in respect of Sy.No.129 measuring 35 acres 14 guntas on 14.02.2018 vide Annexure-C.
8. It is also stated that pursuant to the aforesaid awards, the State has also paid compensation of about Rs.12.83 crores to the land owner.
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9. It is the contention of the petitioner that it was incumbent upon the State to notify it about the acquisition since it was the person who was actually affected by the acquisition. It is contended that the Sugar Factory being run by the petitioner was heavily dependent on the sugar cane that was grown in 86 acres 35 guntas of land and if these lands are acquired, they would suffer a huge loss. It is also contended that the question of petitioner's entitlement to be conferred with occupancy rights was pending adjudication before the Land Tribunal and in this view of the matter, it was completely wrong on the part of the State to have paid compensation to the owner in respect of subject lands, which were in possession of the petitioner and in respect of which its claim for being conferred with occupancy rights was pending adjudication before the Land Tribunal.
10. It is also specifically contended by the petitioner that in the RTC, the name of the petitioner is entered in the cultivator's column and therefore, the State could have no excuse for not notifying the petitioner.
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11. It is stated that since the State was aware about the proceedings pending before the Land Tribunal, the petitioner ought to have been notified about the acquisition.
12. It is also contended that the petitioner had in fact filed a declaration under Section 66 of the Land Reforms Act and that was also pending consideration.
13. It is submitted that since the entire process of acquisition including the payment of compensation had been undertaken behind the back of the petitioner and without notice to it, the same were liable to be struck down.
14. The State, on the other hand, contends that it was not necessary for the petitioner to be notified since it was not the owner of the subject lands. The State also contends that the land owner was notified and since there were no objections raised by the land owner, a recommendation was made to acquire the lands and this recommendation has been accepted and a declaration has been issued.
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15. It is submitted that since the petitioner's claim for tenancy is yet to be adjudicated upon, the petitioner would not possess any right to object to the acquisition.
16. It is contended that the owner had filed an affidavit regarding his title at the time of receiving compensation and he had also sought for reference to the Civil Court under Section 64 of the 2013 Act and in the light of these facts, the prayer of the petitioner was untenable.
17. It is contended that the Land Acquisition Officer was only required to consider the name that was reflected in the owner's column for the purpose of notifying and calling for objections, notice was issued only to the owner about the proposed acquisition and also regarding payment of compensation.
18. On behalf of the owner, it is contended that the petitioner had no locus standi to question acquisition since the Lease Agreements indicate that the petitioner had no right to the benefits arising out of the improvements of the land. It is also contended that the Lease Agreements had come to an end in March, 1990 itself and therefore, the 9 petitioner had no right over the subject lands on the basis of Lease Agreements.
19. It is contended that the petitioner cannot take advantage of the application that he has filed under the Land Reforms Act, since the provisions of the said Act are meant only to protect the interest of individual tenants and not the interest of a Company such as petitioner.
20. Learned Additional Advocate General and the counsel appearing for the land owner contended that it is settled law that notice to the affected parties has been held to be only directory and not mandatory and there were a long line of decisions to support the said proposition.
21. Having heard the learned counsel for both parties, the points that arise for consideration in this petition are :
i) Whether it is mandatory for the State to notify all the persons interested in the land?
ii) And consequentially, whether the tenant of the land is also required to be notified for the 10 purpose of enabling him to file objections to the acquisition?
22. In order answer the above issues, a brief overview of the provisions of 2013 Act would be necessary.
23. The 2013 Act replaced the Land Acquisition Act, 1894 (for short, "the 1894 Act") and the objective of this Act is to ensure that a humane, participative, informed and transparent process for land acquisition is enacted so as to ensure there is least possible disturbance to the owners of the land and other affected families. It also seeks to provide just and fair compensation to the affected families and make adequate provisions for their rehabilitation and resettlement. The ultimate objective is to ensure that cumulative outcome of a compulsory acquisition should be to ensure that the affected persons become partners in the development leading to their improvement post acquisition, both socially and economically.
24. Unlike, the 1894 Act, the 2013 Act takes into consideration not merely the acquisition, but also seeks to ensure that the social impact of the acquisition is considered, 11 appraised and there is an actual rehabilitation and resettlement built into the entire process of acquisition. This is obviously to ensure that minimum damage is caused to the life of people who are losing their land and a real effort is made to ensure that persons who lose their land would actually be benefited from the acquisition and the acquisition would result in upliftment of their status, both socially and economically.
25. It is for this purpose that even before the Government decides to notify the land for acquisition, it is made mandatory for the State to consult the local self Government in the affected area and carry out a social impact assessment. The manner and the date from which the assessment is to be done is required to be stated by issuance of a notification and the same is also required to be made known to all concerned by publishing them in the local offices and also in the affected areas. In fact, the entire community is required to be put on notice of the impact that the acquisition would have on the local populace, thereby indicating that the process of acquisition is not confined only to the land losers, but also contemplates taking the views of the entire local populace. 12
26. The Social Impact Assessment study is, in fact, required to assess whether the proposed acquisition serves a public purpose, estimate the total number of families which are likely to be displaced, the extent of lands both public and private and common properties likely to be affected by the proposed acquisition. In fact, the study is required to specifically consider whether the extent of land proposed is the bare minimum required for the project and more importantly whether the feasibility of land acquisition of an alternate place has been considered. The State is, in fact, obliged to consider the effect that the proposed acquisition is likely to have on the entire eco system of the community and also require the authority conducting the study to also prepare a Social Impact Management plan listing out the ameliorative measures that would have to be taken to mitigate the effects of the acquisition.
27. The law also mandates that a public hearing about the social impact is also conducted and thereafter, the Social Impact Assessment study is also published. The Social Impact Assessment report, which is published, is thereafter required to be appraised by a body of nine people comprising of non 13 official social scientists, representative of the local bodies, experts on rehabilitation and a technical expert in the subject relating to the project.
28. This expert group is required to submit its recommendation within two months to the State and if the expert group makes a recommendation in writing that the project did not serve any public purpose and the potential benefits outweigh the social costs and adverse social impacts, the project is required to be abandoned forthwith. The State is, however, empowered to proceed with the acquisition, but only after it has recorded its reasons in writing.
29. The expert group is also entitled to form an opinion that the project sub-serves a public purpose and its benefits outweigh the social costs, in which event, it is required to make a recommendation in writing the absolute bare minimum extent that would be needed for acquisition and that there are no other less displacing options available. This recommendation of the expert group, whether it is for abandoning the project or for going ahead with the project, is 14 also required to be published and made known to all concerned.
30. In essence, the fundamental question as to whether the land acquisition serves a public purpose is sought to be ascertained from the very public of the affected area by their involvement and the requirement is actually analyzed by an expert group and who are thereafter required to make a recommendation either for or against the acquisition. In short, the public purpose is to be examined through the eyes of the public themselves rather than by the appropriate Government.
31. It is to be noticed here that the objective of the Social Impact Assessment is to ensure that entire community is informed of the consequences of the acquisition and to get them involved in the entire process. This is obviously keeping in mind the objective of the law, which is to ensure that the affected people are active participants even before the process of acquisition process is to commence.
32. The appropriate Government is thereafter required to examine the proposals for land acquisition and consider the 15 recommendation of the experts and ensure the acquisition of only such areas which would cause minimum displacement of people and minimum disturbance to infrastructure and ecology and then take a decision.
33. It is also to be noticed that Chapter III of the Act creates a special provision to safeguard food security, which mandates that no irrigated multi-cropped land should be acquired under the Act, except where such land is required under exceptional circumstances and it is demonstrable that the lands are required as a last resort. Even in such cases, the maximum land that can be acquired should not exceed the limits which are notified by the State. Thus, there is a general bar for acquiring irrigated multi-cropped land and it can be acquired only under exceptional circumstances.
34. In fact, even if irrigated multi-cropped lands are acquired, an equivalent area of cultivable waste land is required to be developed for agricultural purposes or the amount equivalent to the value of the land acquired is required to be deposited with the appropriate Government for investment in agriculture for enhancing food security. 16
35. Thus, on a conjoint reading of the provisions of Chapter II and III of the Act, the State is required to take a decision for acquiring lands only after an elaborate study involving all the consequences of acquisition are taken into consideration and only then, a preliminary notification under Section 11 of 2013 Act can be published.
36. The State of Karnataka has amended the 2013 Act and inserted Chapter III-A providing for exemption of the application of Chapter II and III of the Act in respect of five categories of projects. Even in respect of these projects, the State is mandated to ensure that the extent of land proposed for acquisition is kept to a minimum.
37. It is only after these elaborate measures are adhered to, the 2013 Act enables the issuance of a preliminary notification detailing the lands that are required to be acquired for a public purpose. In fact, on the publication of the preliminary notification, it is a necessity that the local self Government be informed of the notification by calling for a meeting specially convened for that purpose. It is also a requirement that the notification should also contain a 17 statement on the nature of the public purpose and also state the reasons necessitating the displacement of affected persons and also contain a summary of the Social Impact Assessment report.
38. Thus, the scheme of the 2013 Act is that an elaborate study is required to be conducted about the Social Impact of the proposed acquisition by involving all the persons and entities in the affected areas and thereafter, ensure that the Social Impact Assessment report prepared is appraised by an expert group and thereafter, the proposal for acquisition is examined by the Government before a decision is taken to initiate proceedings for acquisition. This statutory framework indicates that not only the persons affected, but also the local self Government is required to be actively involved in the consultative process before the actual proceedings for acquiring the land are initiated.
39. Viewed from this angle, it is possible to construct an argument that individual notices would not be necessary as the entire affected area is aware of the proposed acquisition. However, it is to be borne in mind that the process of 18 consultation in relation to the social impact would only ultimately lead to the submission of a recommendation to the State Government.
40. It is quite possible that the report which is published may or may not recommend acquisition. The decision to either accept the report as it is submitted or to accept it with some modification, ultimately lies with the State Government and based on the decision of the Government, a notification would be issued. It is, therefore, obvious that the original extent of land shown may or may not be the subject matter of notification. If certain lands are left out, those set of land owners would not be affected by the notification. However, if certain set of land owners who had participated in the Social Impact Assessment hearing and had made their submissions regarding the effect of acquisition, would definitely be affected, if their contentions were incorrectly considered or not at all considered by the State Government. If the matter is viewed from this angle, it would still be necessary to notify all those persons affected by the acquisition by notifying them and hearing them. If the ultimate objective of the Act is to ensure that the acquisition is made as painless as possible, it 19 is inherent requirement of the Act that every person affected by acquisition is given an opportunity of being heard.
41. However, in this case, the preliminary investigation of the Social Impact was not undertaken and no public hearing was conducted. The notification states that in cases where an Environment Impact Assessment had been conducted under another law, there would be no requirement for conducting a Social Impact Assessment under Section 6(2) of the 2013 Act. The notification also states that the construction of the Hippargi Dam Project had been started in 1973 prior to the Environment Impact Assessment notification of the year 1994 and as per the Apex Court's judgment dated 18.03.2004, no ex-post facto environmental clearance was necessary. As a consequence, the proposed acquisition could not have been within the knowledge of all the persons in the affected area.
42. If a person affected by the acquisition were to contend that the land proposed for acquisition was not for an irrigation project or that the land was an irrigated multi-cropped land and hence could not be acquired, obviously, the opportunity to object prior to the issuance of the preliminary notification 20 as contemplated under the provisions of Chapter II and III of the Act was unavailable.
43. There is yet another statutory requirement which indicates that personal notice to the persons interested calling upon them to file objections, if any, to the proposed acquisition are required. Section 11(4) of the 2013 Act11 injuncts any person from making any transaction or causing any transaction of the land or from creating any encumbrance on the land from the date of publication of notification. In order to ensure that this injunction is complied with, it goes without saying that this specific prohibition indicated in the statute would have to be conveyed to the person who has an interest in the land.
44. It is to be borne in mind that under the 1894 Act, there was no such provision which injuncted the notified person to restrain himself from creating any encumbrance. Since the 2013 Act imposes a specific prohibition to create any kind of transaction in respect of the notified lands, it is quite obvious that the person who is likely to make that transaction is 1 Section 11(4) of the 2013 Act is extracted at the end of the judgment at page No.35 21 necessarily required to be notified about the bar that the law has created for creating any transaction. It is for this reason, that it becomes imperative that the person who has an interest in the land and who may make a transaction is required to be notified. If the persons interested are notified about the bar for creating any transaction, the probable objection that they were unaware of the notification would not be available and this would also ensure that innocent persons are not subjected to any hardship.
45. Section 15 of the 2013 Act22states that any person interested in any land which has been notified for acquisition may object to the area and suitability of the land proposed to be acquired, the justification offered for public purpose and the findings of the social impact assessment report. Thus, the right to object on the ground of the area, the suitability, the justification for the public purpose and the findings of the Social Impact Assessment report is specifically conferred on any person interested in the land.
2 Section 15 of the 2013 Act is extracted at the end of the judgment at page No.35 22
46. The term "person interested" is defined under Section 3
(x) of the 2013 Act and reads as follows:
"(x) "Person interested" means:-
(i) all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act;
(ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007).
(iii) a person interested in an easement affecting the land;
(iv) persons having tenancy rights under the relevant State laws including sharecroppers by whatever name they may be called; and
(v) any person whose primary source of livelihood is likely to be adversely affected."
47. As could be seen from the above definition, every person who claims an interest in compensation to be made on account of acquisition of land is a person interested. Similarly, a person interested in an easement affecting the land is also considered as a person interested. Even persons who have tenancy rights under the relevant State laws including share croppers are considered as person interested. Lastly, it is stated that any person whose primary source of 23 livelihood is likely to be adversely affected is also considered as a person affected.
48. Thus, in view of the fact that the expression "person interested" is used in Section 15 of the 2013 Act, it is quite obvious that all the above mentioned category of persons would have a statutory right to object to the acquisition on the grounds indicated in Section 15 of the Act.
49. It is to be noticed here that even the findings of the Social Impact Assessment report can be objected to by the person interested. This indicates that even if the expert group had recommended the acquisition, the person interested could still assail the findings of the report in the proceeding under Section 15 of the Act. The fact that the area and the suitability of the land and also the justification given as public purpose can be objected by the person interested also indicates that the objections to the acquisition cannot be confined only to the land owner.
50. In the instant case, the petitioner was claiming to be the tenant and also claimed that his application for conferment of occupancy rights was still pending adjudication 24 and would thus fall within the meaning of the expression "person interested". It is obvious that the petitioner could raise objection that the land was an irrigated multi-cropped land and could not thus be acquired and it could also raise objections regarding the suitability of acquiring fertile land for the purpose of rehabilitating displaced families. It is, therefore, clear that the petitioner, who would come within the definition of "person interested" had a right to object to the acquisition and would, therefore, have to be notified.
51. In this regard, the Rules framed under the 2013 Act are also required to be examined to have a complete understanding of the requirement of notifying the persons interested in the notified lands.
52. Section 109 of the 2013 Act enables the appropriate Government to make Rules for carrying out the provisions of the Act.
53. Sections 110 and 111 of the 2013 Act mandate that the Central Government and the State Government place the Rules that they have framed before the Parliament or before the State Legislature, as the case may be.
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54. Section 112 of the 2013 Act mandates that the Rules can be made only after previous publications have been made.
55. The State Government has framed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka) Rules, 2015 (for short, hereinafter referred to as "the Karnataka Rules") by its notification dated 17.10.2015.
56. Two months thereafter, the Central Government has also framed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015 on 18.12.2015.
57. The State Government has also amended the 2013 Act by Karnataka Act No.16/2019. By this amendment, two new Chapters namely Chapter III-A and IV-A were inserted and certain sections namely Sections 2, 24, 46, 101 and 109 were amended and Section 87 was substituted. According to the statement of objects and reasons, the purpose of this amendment was to remove the difficulties that the State was 26 facing in acquiring the lands and to facilitate land acquisition for various developmental projects. Under this amendment, a provision is also made to amend the Rules to give effect to the amendment of the Act by the State.
58. Thus, there are two set of Rules in existence to ensure that the purposes of the Act are carried out. Since the "appropriate Government" is defined to mean the Government in relation to acquisition of land situated within the territory of a State i.e., the State Government, it is the Karnataka Rules that would apply to the State and the Central Rules would apply only in relation to the acquisition of land situated within the Union territory and in relation to acquisition of land in which the lands are situated in more than one State or in relation to the lands which are acquired for the purpose of Union as may be specified by way of a notification.
59. The Karnataka Rules, in relation to the notification, is enumerated under Rule 2033. The said Rule merely states that the preliminary notification is required to be published in the 3 Rule 20 of the Karnataka Rules is extracted at the end of the judgment at page Nos.35 & 36 27 affected areas by way of affixing a written notice to the effect on the Grama Panchayat office and office of the Village Accountant. The Rule states that thereafter, the Deputy Commissioner is required to undertake and complete the exercise of updating the land records within a period of two months. The Rule also states that the authorised officer should conduct a preliminary survey of the lands proposed for acquisition and he would have all such powers that are necessary to carry out the survey.
60. The Rule lastly states that the Deputy Commissioner is required to hear objections and make an enquiry as provided under Section 15(2) of the 2013 Act and thereafter, submit his report along with his recommendation to the State Government. Thus, the Rule does not specifically state that the persons affected by acquisition would have to be notified personally.
61. However, the Central Government Rules which were published two months thereafter in December, 2015, provides for a completely different approach. Chapter III of the said 28 Rules provide for matters related to preliminary notification, rehabilitation and resettlement scheme.
62. It categorically states that the preliminary notification referred to in Section 11 should be published in Form II. Form II indicates that the details of requirement under Section 11(1) of 2013 Act are specifically stated and more importantly, it is required to specifically indicate the name and address of the persons interested. The tabular column indicated, which is part of Form II, as under:
Sl. No. Survey Type of Type Area Name Boundaries No. title of under and land acquisition address (in of person N. S. E. W. hectare) interested Trees Structures Variety Number Types Plinth Area
63. As could be seen from the said tabular column, it is necessary that the name and address of the persons interested is required to be stated in Form II. Form II also stipulates that no person is permitted to make any transaction as provided under Section 11(4) of the 2013 Act and objections, if any, should be filed within 60 days. 29
64. As already stated above, the expression "person interested" has been defined under Section 3(x) of the 2013 Act and the petitioner comes within the meaning of the said definition and will, therefore, have to be construed as a person interested. It is, therefore, clear that Form II which is to be published is not confined only to the land owner, but is also in respect of persons who were interested in the land.
65. It may be pertinent to state here that the Land Acquisition Officer, in the instant case, has actually served a notice in the prescribed Form No. II to the land owner as evidenced by Annexures-X, X-1 and X-2. The fact that the Special Land Acquisition Officer adopted Form No.II prescribed under the Central Rules by itself proves that he also considered the requirement of notifying the persons interested was necessary.
66. If Section 11(4) of 2013 Act seeks to injunct all the persons who are interested in land from creating any transaction, it logically follows that all the interested persons would have to be notified. It is for this purpose that Form II mandates that the name and address of all the persons 30 interested are to be mentioned in the notification. If the name and address of the persons interested are not completely indicated, they would not be in a position to object to the acquisition and they would also not be bound by the injunction that Section 11(4) seeks to create. It is, therefore, clear that the Rules as framed by the Central Government would satisfy the requirement of Section 11(1) of 2013 Act and since the State Rules are silent about notifying the interested persons, in order to achieve the objects of the 2013 Act, it would be necessary and mandatory for the State to notify all persons interested in the lands proposed for acquisition.
67. As already stated above, the State has in fact issued notices as specified in the above mentioned Form II to the land owner, thereby, indicating that it was indeed following the Central Rules.
68. In the instant case, it is not in dispute that the petitioner is claiming to be a tenant as defined under the Land Reforms Act and that its application for being conferred with occupancy rights was pending consideration before the 31 Land Tribunal. It is also not in dispute that the name of the petitioner is reflected in the cultivator's column of the RTC, thereby indicating that they are cultivating the land and it, therefore, has an interest in the land. Despite these two glaring factors, the State has proceeded to notify only the land owner as if he was the only person interested in the land. It is to be borne in mind that the petitioner claims to be a tenant under two registered Lease Deeds which date back to 1951 and 1972 and it is, therefore, obvious that the petitioner does have a subsisting interest in the lands in question.
69. It is to be stated here that the decisions relied upon by the learned Additional Advocate General as well as counsel appearing for the land owner relating to service of notice on persons interested all relate to acquisitions made under the 1894 Act, which did not contain a provision injuncting the owner or any person interested from creating any transaction. In this view of the matter, the proposition of law laid down in those decisions can only be made applicable to the acquisitions under the 1894 Act and cannot be made applicable to the acquisition under the 2013 Act. 32
70. An argument was also sought to be advanced that a tenant of a notified land has no right to question the acquisition since his interest in the land has a limited tenure and could always be determined by the owner. It was contended that in respect of buildings, a tenant could only have the right to claim a refund of a deposit and cannot claim to be in possession indefinitely and there was no legal right inhered in a tenant to oppose the land acquisition.
71. As stated above, Section 15 of the 2013 Act confers a right to persons interested to object to the acquisition on the area and suitability of the land, the justification offered and also to assail the findings of the Social Impact Assessment report. The definition of the term "person interested" brings within its purview a person having tenancy rights and also a person whose primary source of livelihood is likely to be adversely affected by the proposed acquisition and thus, these categories of persons are also clothed with the right to object to the acquisition. The fact that the definition considered any person whose primary source of livelihood is likely to be adversely affected would be a person interested obviously means that every person who is mainly dependent 33 on the land sought to be acquired is entitled statutorily to object to the acquisition.
72. It is also to be kept in mind that when the 2013 Act fundamentally changes the very process of compulsory acquisition and seeks to involve everyone affected including the local self Government to participate and give their inputs regarding the proposed acquisition, even before a decision is taken to initiate acquisition, it would be illogical and unnatural to exclude a tenant of a land who would also be dependent on the land to object to the acquisition.
73. The State, by not notifying the petitioner, who was a person interested in the land, has committed a serious illegality. The State, by notifying only the land owner, has basically deprived the petitioner of raising objections to the acquisition. Having regard to the fact that the petitioner is utilizing the entire 86 acres 35 guntas of land for the purpose of raising a sugarcane crop for manufacturing sugar in its Sugar Factory, in my considered view, it is clear that the petitioner ought to have been heard before issuance of the declaration. Since the petitioner has not been heard, the 34 acquisition proceedings and the declaration are vitiated and the same will have to be quashed.
74. Thus, the points framed above are answered holding that it is mandatory for the State to notify all the persons interested in the land (as defined under Section 3(x) of the 2013 Act) including the tenant of the land and hear their objections before taking a decision to issue a final declaration.
75. In the result, the writ petition is allowed.
76. The declaration issued in March, 2017 published on 06.04.2017 vide Annexure-E is quashed. Consequently, the three awards passed i.e., in respect of land bearing Sy.No.127/P1 measuring 16 acres 24 guntas on 03.02.2018 vide Annexure-A, in respect of Sy.No.128 measuring 34 acres 37 guntas on 08.02.2018 vide Annexure-B and in respect of Sy.No.129 measuring 35 acres 14 guntas on 14.02.2018 vide Annexure-C are also quashed.
77. Petitioner is permitted to file objections to the preliminary notification within 60 days from the date of 35 receipt of a copy of this order and the authorized officer shall consider the same and proceed in accordance with law.
sd JUDGE PKS 1
11.Publication of preliminary notification and power of officers thereupon._(1).....(2)...(3)... (4)No person shall make any transaction or cause any transaction of land specified in the preliminary notification or create any encumbrances on such land from the date of publication of such notification till such time as the proceedings under this Chapter are completed:
Provided that the Collector may, on the application made by the owner of the land so notified, exempt in special circumstances to be recorded in writing, such owner from the operation of this sub- section:
Provided further that any loss or injury suffered by any person due to his wilful violation of this provision shall not be made up by the Collector.2
15. Hearing of objections.- (1) Any person interested in any land which has been notified under sub-
section (1) of Section 11, as being required or likely to be required for a public purpose, may within sixty days from the date of the publication of the preliminary notification, object to:-
(a) the area and suitability of land proposed to be acquired;
(b) justification offered for public purpose;
(c) the findings of the Social Impact Assessment report. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by an Advocate and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under sub-section (1) of Section 11, or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled, for the decision of that Government.
(3) The decision of the appropriate Government on the objections made under sub-
section (2) shall be final.
3 20 Notification: (1) The Preliminary Notification issued under sub-section (1) of Section 11 shall be published in the affected areas by way of affixing written notice to the effect on the Grama Panchayath office and office of the Village Accountant. (2) After issuing the notice under sub-section (1) of Section 11, the Deputy Commissioner shall undertake and complete the exercise of updating land records within a period of two months as specified hereunder:-
(a) Delete the name of dead persons
(b) Enter the names of legal heirs of the deceased persons;
(c) Take effect of the registered transactions of the rights in lands;
(d) Update all entries of the mortgage in the land records;
(e) Make necessary entries in respect of all prevalent forest laws;
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(f) Make necessary entries in respect of assets like well, tree;
(g) Make necessary entries of crops grown and their area;
(h) Make entries in case of Government land;
(i) Any other updating that is required.
(3) The authorized Officer shall conduct preliminary survey of the land proposed for acquisition
and shall have all powers to carry out such survey in accordance with provisions of the Act. (4) The Deputy Commissioner or the Authorized Officer shall after hearing objections and making enquiry as provided under Section 15(2) of the Act, shall submit his report along with his recommendations to State Government whose decision will be final.
(N.S.SANJAY GOWDA) JUDGE