Orissa High Court
Bibol Toppo; vs State Of Odisha on 6 September, 2024
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31638 of 2022
In the matter of an application under Articles 226 & 227 of
the Constitution of India, 1950.
----
1. Bibol Toppo; .... Petitioners
2. Rakesh Roshan Dungdung;
3. Manohar Toppo;
4. Manoj Kumar Toppo;
5. Bahadur Dhanwar;
6. Gandur @ Ganduru Barla;
7. Timbu Minz;
8. Florian Dungdung;
9. Alexius Dungdung;
10. Hazari Kerketta;
11. Efrem Toppo; and
12. Shiba Barwa
-versus-
1. State of Odisha, represented ....
by its Principal Secretary,
Revenue & Disaster
Management Department;
2. Principal Secretary;
Government of Odisha,
Department of Steel & Mines;
3. The Collector & District
Magistrate, Sundargarh;
4. The Sub-Collector,
Sundargarh;
5. Land Acquisition Officer,
Sundargarh;
6. Odisha State SIA Unit, NCDS
Page 1 of 56
W.P.(C) No.31638 of 2022
Bhubaneswar;
7. M/s. Dalmia Cement Bharat
Limited;
8. The Sarpanch, Kukuda Gram
Panchayat; and
9. The Sarpanch, Katang Gram Opp. Parties
Panchayat
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Petitioners - Mr.Rudra Prasad Kar
Senior Advocate
M/s.Balakrishna Rao,
A.K. Minz and S. Dungdung
(Advocates)
For Opp. Parties - Mr.Ashok Parija,
Advocate General
Mr.Nikhil Prata, ASC
(For O.Ps.1 to 6)
Mr.S.P. Mishra, Senior Advocate
M/s.S.P.Sarangi, P.K. Dash,
A.Pattanaik & A. Das
(Advocates for O.P.7)
Mrs.Pami Rath, Senior Advocate
M/s.J.Mohanty, S.Gumansingh,
P.Mohanty
(Advocates for O.P.8 & 9)
CORAM
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Judgment : 06.09.2024
D.Dash,J. These twelve (12) Petitioners, by filing this writ petition, have prayed to quash the land acquisition proceeding initiated by Page 2 of 56 W.P.(C) No.31638 of 2022 the State of Odisha, the Opposite Party No.1 in respect of the lands measuring Ac.269.475 in three villages of the District of Sundergarh, which are Kukuda, Lanjiberna and Bihabandha.
2. Case of the Petitioners A. The Petitioners who are the residents of Villages-Kukuda, Bihabandha and Lanjiberna in the District of Sundergarh (Odisha) claim to have their landed properties in the area, which have been recorded jointly either in the name of their great grandfathers or grandfathers (either maternal or paternal).
The Opposite Party No.7, a Company registered under the Indian Companies Act, 1956, submitted a proposal in Form-A under section 2(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short, called as 'the RFCTLAR & R Act') for acquiring land situated in the said revenue villages for carrying out mining activities. The revenue villages, in which the Petitioners claim to be having their lands are Kukuda, Bihabandha coming under Kukuda and Katang Gram Panchayat. The land measuring Ac.236.84 decimals, Ac.27.51 decimals and Ac.09.22 decimals situated in Village-Kukuda and Bihabandha were included within the total area of land sought to be acquired by the Opposite Party No.7-Company and the administrative approval in Page 3 of 56 W.P.(C) No.31638 of 2022 that regard had been accorded by Government Order dated 23.08.2017.
By letter dated 06.01.2020, the Opposite Party No.4 (Sub- Collector, Sundergarh) asked the Opposite Party No.8 (Sarpanch, Kukuda Gram Panchayat) and Opposite Party No.9 (Sarpanch, Katang Gram Panchayat) to conduct Special Grama Sabha on 26.01.2020 for holding discussion and gathering/ opinion/suggestion on the proposal of the Opposite Party No.7- Company for acquisition of the land for expansion of mining activity of Lanjiberna Limestone and Dolomite Mines. B. It is stated that proviso (i) of sub-section-2 of section-2 of the RFCTLAR & R Act mandates for obtaining of the consent of 80% (eighty percent) of the affected family for the land sought to be acquired for a Private Company. The Petitioners, in that regard, have pleaded as under:-
"The Petitioners verily believe that no such prior consent from 80% of the family has been obtained in the case" (Para-7 of the Writ Petition) It is stated that sub-rule-4 of rule-21 of the Odisha Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2016 (for short, called as the 'ORFCTLAR & R Rules') provides that affected persons shall file their consent in Form-J and the photocopy of the said consent duly countersigned by the Land Acquisition Collector shall be handed over to the affected family. In this regard, the Petitioners have pleaded the following:-Page 4 of 56 W.P.(C) No.31638 of 2022
"The Petitioners verily believe that the said provision has been violated in the instant case, as has been revealed from the information supplied under the Right to Information Act, 2005 in respect of at least Lanjiberna Village" (Second Sub-Para of Para-7 of the Writ Petition)"
C. It is stated that in the Special Grama Sabha Meeting of both Kukuda and Katang Gram Panchayat being held on 26.01.2020, the proposal in question stood rejected.
After that, the Opposite Party No.4 (Sub-Collector, Sundergarh) issued one Notification dated 18.03.2021 stating therein that draft Social Impact Assessment Report (for short, 'the SIA Report') prepared by the Opposite Party No.6 (Odisha State Social Impact Assessment Unit of Naba Krushna Choudhury Centre of Development Studies, Bhubaneswar), for the land acquisition is required to be discussed by the villagers belonging to the Gram Panchayat of Kukuda and Katang likely to be affected and the hearing date was fixed under that notification on 16.04.2021. Thereafter, by a separate letter dated 13.04.2021, the Opposite Party No.8 (Sarpanch, Kukuda Gram Panchayat) and Opposite Party No.9 (Sarpanch, Katang Gram Panchayat) have expressed their unwillingness to hold public meeting/hearing on 16.04.2021 due to prevalence of Covid-19 Pandemic as both were also busy and discharging the responsibility, for the time being had also been conferred with Magisterial power. It is stated that no notice for public hearing has been issued by the Opposite Party Page 5 of 56 W.P.(C) No.31638 of 2022 No.8 (Sarpanch, Kukuda Gram Panchayat) and Opposite Party No.9 (Sarpanch, Katang Gram Panchayat) nor any such public hearing was conducted as contemplated under sub-rule-2 of rule- 14 of the ORFCTLAR & R Rules.
D. When the matter stood thus, the Opposite Party No.5 (Land Acquisition Officer, Sundergarh) issued letter dated 24.06.2021 to serve the declaration dated 22.06.2021 issued under sub-section-2 of section 8 of RFCTLAR & R Act on the Opposite Party No.8 (Sarpanch, Kukuda Gram Panchayat) and Opposite party No.9 (Sarpanch, Katang Gram Panchayat), which in its Clause-VI found mention of conducting public hearing in the affected villages, which these Petitioners claim to be untrue.
E. The above declaration under sub-section-2 of section-8 of the RFCTLAR & R Act was followed by preliminary notification dated 06.07.2021 under sub-section-1 of section 11 of the RFCTLAR & R Act, for the acquisition of the land as under:-
VILLAGE NAME OF G.P. EXTENT OF LAND
Kukuda Kukuda Ac.232.945
Lanjiberna Katang Ac.27.26
Bihabandha Kukuda Ac.9.11
By the said notification, objection to the acquisition of the land was called for to be filed within sixty days. It is stated that issuance of such notification is violative of the provisions Page 6 of 56 W.P.(C) No.31638 of 2022 contained in sub-section-3 of section-41 of the RFCTLAR & R Act since no prior consent had been obtained from Kukuda and Gram Panchayat. It is further stated that there has been violation of the provisions of sub-section-3 of section-8 of the RFCTLAR & R Act in as much as Form-J had not been obtained from the Petitioners nor in respect of at least those concerned with Village-Lanjiberna. It is further stated that issuance of the notification under sub- section-1 of section-11 of the RFCTLAR & R Act is in violation of rule-41 of the ORFCTLARR Rules, which mandate obtaining of consent of concerned Grama Sabha and Gram Panchayat situated in the Scheduled Areas of the State in Form-M prior to the issuance of such notification. So, it is said that there has been patent violation of rule-41 of ORFCTLAR & R Rules. It is next stated that some of the affected villagers along with the Petitioners filed objections to the preliminary notification dated 06.07.2021.
One Expert Committee has prepared an appraisal report on 08.06.2021 concerning said land acquisition. The Petitioners believe that this report has been prepared under section-7 of the RFCTLAR & R Act. They state that the representative of Opposite Party No.7-Company since had attended the Expert Committee Meeting held on 08.06.2021, that vitiates the land acquisition proceeding. Although section-7(2)(b) of the RFCTLAR & R Act requires two representatives belonging to the affected Gram Page 7 of 56 W.P.(C) No.31638 of 2022 Panchayat to be present in the Expert Committee Meeting; only one representative appears to have been there in the meeting held on 08.06.2021, which is in violation of law.
F. Some of the affected villagers including three out of the present Petitioners filed a writ petition before this Court, which was numbered as W.P.(C) No.25730 of 2021. The said Writ Petition stood disposed of by order dated 30.09.2021 directing the Authorities to pass one reasoned order taking into account the objection filed by affording opportunity of hearing. In pursuance of the said direction passed by this Court in W.P.(C) No.25730 of 2021, the objections were heard on 16.10.2021 and 18.10.2021 for Katang and Kukuda Gram Panchayat respectively. It is stated that when the Petitioners and others filed their written version, although the hearing was conducted by the Opposite Party No.5 (Land Acquisition Collector, Sundergarh), the order ultimately was passed by the Opposite Party No.3 (Collector, Sundergarh). Thus, it is said that the hearing so done is in violation of the directing and the outcome is nonest.
G. Thereafter, three final declarations were issued by the Opposite Party No.3 (Collector & District Magistrate, Sundergarh) on 03.11.2021.
Page 8 of 56 W.P.(C) No.31638 of 2022
It is stated that except few, most of the affected villagers have not received the compensation offered to them and they have been resisting the acquisition. The Petitioners claim that the land acquisition proceeding in respect of the land situated in Village- Kukuda, Katang and Bihabandha are bad in law and as such cannot be legally sustained. They state that their lands as well as the lands of similarly situated persons are thus being illegally acquired by the State for the Opposite Party No.7-Company bypassing the statutory procedures; the Petitioners and others are being deprived of their valuable property in exercising their rights over the same.
3.A. The response of the Opposite Party Nos.1 to 5 runs as follows:-
"On 29.01.1997, one Mining lease was executed by the State Government in favour of Opposite Party No.7 for 2208 acres of land in terms of rule 31 of Mineral Concession Rules, 1960 (in short, 'the M.C. Rules'). On 09.12.2015, the Opposite Party No.7 under Rule-3 of ORFCTLAR & R Rules submitted its proposal in Form-A prescribed in the said rule for the land measuring 236.84 acre in Village-Kukuda, 27.51 acres in Village-Lanjiberna and 09.22 acres in Village-Bihabandha for acquisition under section 2(1) of RFCTLAR & R Act. The State, in adherence to the provision contained in Section-8A of the Mines Minerals Development Regulation Act, 2016 (in short, 'MMDR Act') executed a supplementary lease deed extending the Mining lease of Opposite Party No.7 up to 29.02.2040. The Opposite Party thus is the lease of the said land and the ownership of the minerals underneath the said land rests with the State Government. The lessee pays the royalty to the State for the privilege to win minerals over lands owned by the State Government The Mining lease and as per the provision of MMDR Page 9 of 56 W.P.(C) No.31638 of 2022 Act and the Rules made thereunder allows the lessee to pay the occupier of the surface of the lease area, the compensation guided by the RFCTLAR & R Act, which can be seen from the table of relevant provisions of the MMDR act and Rules made thereunder."
3.B The State Government, in the Department of Steel and Mines, on 23.08.2017, as per rule-3 of the ORFCTLAR & R Rules, issued the administrative approval of acquisition of 280.51 acres of land. Thereafter, on 24.02.2020, the State Government issued notification for commencement of consultation and for the Social Impact Assessment (SIA) study by Nabakrushna Choudhury Centre for Development Studies at Bhubaneswar (Opposite Party No.6) for the three villages under Kukuda and Katang Gram Panchayat under section 4(1) and (2) of the RFCTLAR & R Act. The process for obtaining consent by way of Form-J was initiated during the SIA study. Rule 21(1) of the ORFCTLAR & R Rules requires the Collector to initiate the process of obtaining consent of affected families. The design of the RFCTLAR & R Act and Rules made thereunder has left this process open-ended and continuing. The reasons is that it is impossible for the State to ascertain all project affected families at the threshold of the acquisition when the entire acquisition process is time bound. On 18.03.2021, the State Government, under section 5 of the RFCTLAR & R Act issued the notice for conducting public hearing on 16.04.2021 for discussion of the draft SIA report. On 16.04.2021, the State Government, having ensured that a public hearing was held at the Page 10 of 56 W.P.(C) No.31638 of 2022 villages in the affected area to ascertain the views of the affected families; those views were recorded and being included in the report have been duly addressed. Thereafter on 03.06.2021, the State Government published SIA study report. The independent Multi-Disciplinary Expert Group then again scrutinized the report as per section 7(5) of the RFCTLAR & R Act on 08.06.2021 and recommended that the said land be acquired. As per section 8(2) of the RFCTLAR & R Act, the State Government examined the report of the Collector and that of the Expert Group on SIA Report and thereafter on 22.06.2011, recommended for acquisition of the land by way of declaration under section 8(2) of the RFCTLAR & R Act. On 06.07.2021, under section 11(1) of the RFCTLAR & R Act, the Collector published the preliminary notification stating inter alia the details of the land, name of the Requiring Body, Summary of SIA Report. Objections were called for from tenants and their legal heirs.
3.C. When the matter stood thus, on 11.08.2021, some Petitioners filed writ petition, which were numbered as W.P.(C) Nos.23979 & 25730 of 2021. The prayers therein were for quashing the followings:-
"i. the final SIA Report;
ii. declaration under section 8(2) of the RFCTLAR & R Act, 2013;
iii. the Preliminary Notification under section 11; and Page 11 of 56 W.P.(C) No.31638 of 2022 iv. the Gram Sabha meeting on 16.04.20212."
It would be pertinent to mention here that two out of the present Petitioners were Petitioner Nos.2 & 9 in W.P.(C) No.25730 of 2021 whereas the present Petitioner Nos.1, 4, 8 and 10 were the Petitioners in W.P.(C) No.23979 of 2021. The Petitioner Nos.3, 5, 6 & 7 were then not in picture.
By orders dated 27.09.2021 and 30.09.2021, this Court, without accepting the prayers, disposed of the Writ Petitions granting liberty to the Petitioners only to file objections under section 15(1) of the RFCTLAR & R Act before the Appropriate Authority in accordance with law with the observation that in that event the Appropriate Authority would dispose of the said objections with a reasoned order.
On 05.10.2021, the Petitioners raised objections before the Collector, Sundergarh under section 15(1) of the RFCTLAR & R Act. Receiving the said objections, on 16.10.2021 and 18.10.2021, the Collector held the hearing where some of the Petitioners appeared in person. After hearing the objections, the Collector on 22.10.2021, submitted a detailed and reasoned report to the State Government addressing the contentions of the Petitioners. The State Government, after considering the report, on 03.11.2021, issued a declaration for acquisition of the said land measuring 269.475 acres of land. Pursuant to the same, on 18.11.2021, the Page 12 of 56 W.P.(C) No.31638 of 2022 Collector published the notice stating that the Government intends to take possession of the land indicating therein the claims for compensation and rehabilitation and resettlement of all the persons, and those having interest over such land may further advance before him. The Collector then inquired into the objections received from the interested persons under section 21 of the RFCTLAR & R Act as regards the measurement and market value of the land and provided the opportunity of hearing to them. As none appeared, the Collector passed the award on 23.12.2021 and 31.12.2021 computing the total compensation payable for said acquisition at Rs.13,41,86,175/-
4. The case of the Opposite Party No.7 is that the contentions of the Petitioners in seeking the relief, as noted above, are baseless, misplaced and without any cogent, legal or logical reasoning.
It is stated that the Petitioners have no locus standi nor are authorized to approach this Court. The rights of the Opposite Party No.7 are crystalized under the Mines and Minerals (Development and Regulation Act (for short, 'the MMDR Act'). The provisions in the RFCTLAR & R Act have been substantially complied with. The SIA report captures all the relevant facts and circumstances, which negate the claim of the Petitioners. Page 13 of 56 W.P.(C) No.31638 of 2022
5. (A) Mr.R.P.Kar, learned Senior Counsel for the Petitioners centering round the violation of the statutory provision of the RFCTLAR & R Act and Rules made thereunder, submitted that when the land acquisition proposal had been rejected by the Gram Sabha, Kukuda and Katang Gram Panchayat as would be evident from Annexurs-7 & 8, it was not fair and proper on the part of the State to go ahead with the said land acquisition and issue the preliminary and final notification for the purpose. In this connection, he invited the attention to paragraphs-9 & 10 of the Counter Affidavit filed by the Opposite Party No.2. (B) He next submitted that the provision contained in section 41(3) of the RFCTLAR & R Act read with Rule 41 of ORFCTLAR & R Rules, which mandate prior consent of concerned Gram Sabha or Gram Panchayat in Form-M before publication of the preliminary notification under section 11(1) of the RFCTLAR & R Act have been violated. It was further submitted that when as per section 2(2)(b) proviso (i) read with section 8(3)of the RFCTLAR & R Act requires for obtaining prior consent of at least eight (80) percent of the affected families in Form-J for the lands sought to be acquired for a Private Company and the administrative approval of acquisition was required to be given subject to obtaining said prior consent, that is wanting here in the given case. He contended Page 14 of 56 W.P.(C) No.31638 of 2022 that there was no public hearing on the draft SIA report on 16.04.2021, in compliance of section 5 of RFCTLAR & R Act. He also questioned the composition of the Independent Multi Disciplinary Group to be in violation of the provision contained in section 7(2)(b) of the RFCTLAR & R Act. In view of the above violation of the statutory provisions contained in the Act and the Rules made thereunder, he urged that the prayers advanced in the writ Petition are to be allowed.
6. Mrs.Pami Rath, learned Senior Counsel for the Opposite parties 8 & 9 reiterated the above submissions placed from the side of the Petitioners, which run at par with the affidavit filed by them.
7. (A) Mr.Ashok Parija, learned Advocate General for the Opposite Parties 1 to 5 submitted that the Petitioners have no locus standi to file the writ petition with the prayer as advanced therein. Besides raising the technical point as regards the defect in the affidavit of the Petitioner No.1 without further indicating that he has been so authorized by other Petitioners and land losers as the ground to dismiss the writ petition, he contended that the Petitioners, having not shown that they are the land owners in respect of the acquisition proceeding in three villages, the writ petition at their instance is liable to be dismissed for want of locus. In this case, it is Page 15 of 56 W.P.(C) No.31638 of 2022 stated that when the affidavit of the Petitioner No.1 is not in consonance with Rule-3 of Chapter-VI of Part-II of the Rules of High Court of Orissa, 1948 and as the said affidavit does not indicate that the Petitioner No.1 had also been authorized by other Petitioners and the land losers in the said acquisition in filing the writ petition as also when it is not stated that the approach of the Petitioners was to serve the common interest of the land owners, the writ petition at the instance of these Petitioners was submitted to be only with the object to frustrate the approach in furtherance of private designs and serve the personal interests of the Petitioners.
(B) He further submitted that the State's action of land acquisition is an exercise of the said right to eminent domain and the process of acquisition only commences upon publication of the primary notification under section 11 of the RFCTLAR & R Act and any procedural defect in preparing SIA report would not vitiate acquisition proceeding. He contended that the State Government has substantially complied with the provision of RFCTLAR & R Act and the ORFCTLAR & R Rules. It was next submitted that the object behind preparation of the SIA as required to be carried out under section 4 to 10 of the RFCTLAR & R Act is to assess, the proportionality of the social impact to be caused by the proposed acquisition to assess if any lesser disruptive Page 16 of 56 W.P.(C) No.31638 of 2022 alternatives are available and to recommend ameliorative measures for addressing the social impact. So, once the SIA report is prepared and apprised by the Expert Committee and examined by the State Government, the acquisition commences, which in the present case, has been followed and thereafter when the notification under section 11 of the RFCTLAR & R Act has been published, the first step in the process of acquisition has commenced. He submitted that it is not that an SIA report would result in any acquisition notification under section 11 of the RFCTLAR & R Act, the purpose of said section is to notify the persons in the area of acquisition, inform them about the SIA report and call for their objection to the proposed acquisition when section 15 of the RFCTLAR & R Act reads that any person with interest in land is at full liberty to raise objections regarding the finding of the SIA report and thereafter, the Government, hearing the objections, surveying would determine the area proposed to be acquired in preparing the Rehabilitation and Resettlement Scheme and it is only after the conclusion of all the above, the Collector publishes the public notice under section 21 of the RFCTLAR & R Act stating that the Government intents to take possession of the land and that claims to compensation and Rehabilitation Resettlement for all having interests in such land may be made to him. He, therefore, submitted that keeping the above in the Page 17 of 56 W.P.(C) No.31638 of 2022 backdrop, the challenge made to the land acquisition proceeding in the instant writ petition has to be appreciated. (C) He then submitted that the prior consent of at least 80% of the affected families is only to gather views of the land losers and their participation in the finalization of the report, which do not lead to the conclusion and mean that if consent of 80% of the affected families is not obtained, the land acquisition proceeding would be illegal when here in the given case the fact remains that the SIA study takes into account the social impact of the project; its purpose is served and it cannot be challenged on technical grounds such as the requirement of consent of 80% of the affected families.
8. (A) Mr.S.P. Mishra, learned Senior Counsel for the Opposite Party No.7 submitted that the Petitioners have no locus standi or authorization to file this writ petition. He submitted that the Petitioners have failed to provide any material in support of the fact that they are the land losers, their names being mentioned in the notification issued under section 11(1) or 19(1) of the RFCTLAR & R Act. He further submitted that such a writ petition filed in representative capacity is not maintainable as no leave has been obtained under Order-1, Rule-8 of the Code of Civil Procedure, 1908 and no publication in this behalf was affected. Page 18 of 56 W.P.(C) No.31638 of 2022 (B) He next contended that the rights of the Opposite Party No.1 are crystalized under the MMDR Act. He submitted that the history of the present land under acquisition traces back to the pre- independence era of the year 1916. The current mining lease which includes the land acquisition area was part of a huge mining block initially granted to M/s.Bisra Stone and Lime Company Ltd. through a mining lease with Raja Bhawani Sankar Dev, Ruler of Banki Estate for 6400 acres from 13.10.2016 to 12.10.1946.
The Opposite Party No.7 established the Cement unit at Rajgangpur to supply Cement for construction of Hirakud Dam in 1950. So, the State Government furnished/subleased the same to Opposite Party No.7 with effect from 02.05.1951 in order to enable the Opposite Party No.7 to fulfil the requirement by supplying limestone for the cement plant. Subsequent thereto, a directly mining lease was granted in favour of Opposite Party No.7 over an area of 893.55 hectares with effect from 01.03.1990 to 01.03.2010, for a period twenty years. The mining lease was executed on 29.01.1997. Thereafter, on 14.01.2009 on an application being submitted by the Opposite Party No.7 for renewal of the original mining lease, the Opposite Party No.7 continued with the mining operation as permitted under the erstwhile under rule 24-A (6) of the M.C. Rules read with section 8 of the MMDR Act. In view of amendment of MMDR Act, 1947 by introduction of section 8-A, Page 19 of 56 W.P.(C) No.31638 of 2022 vide Mines and Minerals (Development and Regulation) Amendment Act, 2015, the validity period of the lease stood extended to 29.02.1940 over the originally granted area of 893.55 hectares. Supplementary lease deed has been executed on 15.07.2016 and thereafter on 15.12.2017 an amended lease deed was executed by revising the mining lease area 873.057 hectares with effect from 17.10.2011 after accepting the part surrender proposal of Opposite Party No.7 over an area of 20.493 hectares. So, currently the Opposite Party no.7 as the lessee has the surface right and operation over 335.96 hectares out of to 873.057 hectares of land. He further submitted that the rights of Opposite Party No.7 for mining operation over the entire mining lease area under the amended lease deed stand crystalized under section 24-A(1) of the MMDR Act read with rule-52 of the Mineral (Other than Atomic and Hydro Carbon Energy Minerals) Concession Rules, 2016, which is in pari materia with the rule-72 of the erstwhile MCR Rules, 1960. It was submitted that holder of the mining lease thus is empowered to enter upon the land on which lease has been granted and carry out the mining operation. The holder of the mining lease is, however, obliged to compensate the land owner for any loss or damage that would be so caused by the said operation. As per the original mining lease deed, the rights and powers of Opposite Party No.7 have been clearly stated. So, the Page 20 of 56 W.P.(C) No.31638 of 2022 purpose of the present land acquisition has to be understood that it was in the context of only to secure surface right over the land for which mining lease had already been granted in favour of Opposite Party No.7. He thus submitted that the present land acquisition proceeding is complimentary in nature towards the grant of said mining lease and it cannot be equated with any other project. He, therefore, submitted that in that view of the matter, the provisions of RFCTLAR & R Act cannot be read/construed to defeat or run in the negating the rights under the very mining lease which was granted prior to the said Act coming into force. He, therefore, submitted that the provisions of the RFCTLAR & R Act are applicable to determine the quantum of compensation when as per the original mining lease deed, the Opposite Party No.7 is duly entitled to get the surface right over the concerned land having obligation to pay the compensation to the occupiers as would be fixed by the State Government.
(C) He next submitted that the provisions of RFCTLAR & R Act do not apply to thirteen (13) enactments mentioned in Schedule-IV of the said Act. However, keeping in view for the interest of the land owner's, the Central Government vide Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015 has extended the beneficial advantage relating to the Page 21 of 56 W.P.(C) No.31638 of 2022 determination of compensation, Rehabilitation and Resettlement under the RFCTLAR & R Act even for the land acquisition proceeding under the said thirteen (13) enactments. So, it was submitted that the similar principle is applicable in the present case wherein for determining compensation payable to the land owner, the provisions of that RFCTLAR & R Act shall prevail over MMDR Act as being more beneficial.
(D) Under Rule 52 of the MCR, 2016, the land owners are entitled to receive only annual compensation based on (1) in case of agricultural land; the average annual net income from cultivation of similar land and (2) in case of non-agricultural land average annual let in value of similar land for previous three years. Provision of section 28 of the RFCTLAR & R Act makes it abundantly clear that several factors are taken into consideration by the Collector while determining the compensation. Further under section 30 of the RFCTLAR & R Act apart from total compensation, the Collector also imposes a solatium amount equivalent to 100% of the compensation amount.
Accordingly, it was submitted that the Opposite Party No.7 has already deposited the compensation amount determined under the RFCT:AR & R Act. Therefore, the interest of the land owners have been duly taken care of in the best possible manner, which is the sole objective of the said RFCTLAR & R Act. He, Page 22 of 56 W.P.(C) No.31638 of 2022 therefore, submitted that the challenges made by the Petitioners in this writ petition to the very land acquisition proceeding are wholly untenable.
(E) It was then submitted that the provisions of RFCTLAR & R Act have been substantially complied with and the allegations as to violation of section 22-B read with section 83 of the RFCTLAR & R Act have no leg to stand as here, the State Government acquires the land under section 2(1) of the RFCTLAR & R Act and for that there is no requirement to obtain prior consent from 80% (eighty percent) affected family. He further submitted that the Opposite Party No.7 submitted this application in Form-A under Rule-3 of ORFCTLAR & R Rules. Therefore, obtaining consent from the 80% (eighty percent) of the affected family under section 22-B of the RFCTLAR & R Act is not the legal mandate since here in the given case, the land is always going to be held and controlled by the State Government under section 2(1)(b)(ii) of the Act and only the surface right is going to be granted to the Opposite Party No.7 that too, for a particular period to fructify and effectuate the mining lease already granted in favour of the lessee and to fulfil the legal obligation of the State in that regard. He further submitted that the Government in the Department of Steel and Mines in its letter dated 23.08.2017 issued the administrative approval for acquisition of land of 280.51 acres in village Kukuda, Bihabandha and Page 23 of 56 W.P.(C) No.31638 of 2022 Lanjiberna subject to the condition that the lands so acquired shall be leased out to Opposite Party No.7 confining to the period as to the duration of the validity of the mining lease after which it shall revert to the State Government. He submitted that the section is a misquoting in the said letter is thus of no significance and that cannot be taken to govern/create or affect the rights of the parties. (F) Without prejudice to the above contentions, it was submitted that during SIA study, a total of 442 affected houses were identified by the Opposite Party No.6 and as on 22.01.2024, 482 affected persons have given their consent for the land acquisition as can be seen from the Counter Affidavit filed on behalf of the Opposite Party Nos.2 to 5. He submitted that the argument from the side of the Petitioner that the exercise of taking consent in Form-J must have been completed before the issuance of notification under section 8(1) of the RFCTLAR & R Act is erroneous and dehors the scheme of the Act and Rules made thereunder. According to him, section 11(5) of the RFCTLAR & R Act read with rule-20 of the RFCTLAR & R Rules clearly state that after the issuance of preliminary notification under section 11(1), the said notification will be shared with the concerned Tahasildar for updating the land record and therefore, without updating the land record, the effective families can never be identified and the exercise of obtaining consent cannot be completed. Page 24 of 56 W.P.(C) No.31638 of 2022 (G) Coming to the alleged violation of section 5 of the Act, it was contended that the allegations made are contrary to the SIA report and, therefore, it being a disputed question of fact cannot be adjudicated in this writ petition. Replying the alleged violation of section 7 of the RFCTLAR & R Act, it was submitted that there is no prohibition under the RFCTLAR & R Act for the representative of Opposite Party No.7 to attend the said meeting and when section 7(2)(d) of the Act requires that the Expert Committee shall consists of Technical Expert relating to the project, it was very much necessary for a representative of Opposite Party No.7 to be present in the said meeting to provide explanation and technical expertise in relation to the mining project. That apart the District Level Independent Multi-Disciplinary Expert Meeting was attended by the Sarpanch of Katang Gram Panchayat-Opposite Party No.9, Naib Sarpanch of Kukuda Gram Panchayat and they then had not raised any objection/objections during the said meeting.
(H) Next coming to the alleged violation of hearing under section 15 of the RFCTLAR & R Act, it was submitted that the objections were heard by the Collector on 15.10.2021 for Lanjiberna village and on 18.10.2021 for Bihabandha and Kukuda village and the report has been prepared under the signature of the Collector, which carries a presumption as to the correctness. Therefore, it Page 25 of 56 W.P.(C) No.31638 of 2022 was argued that the contentions of the Petitioners are misplaced and nothing but an attempt to mislead.
He then invited our attention to the relevant pages of the SIA Report which gives the picture as under:-
"that no alternative site is considerable;
that as none of the affected families are displaced, the question of rehabilitation and resettlement plan does not arise;
that the amount of private land being acquired for the project being marginal, such loss of land would not affect the project affected family;
that no public and community properties are being acquired so as to affect the community way of life;
that the land acquisition is rational step in the State; that no person is willing to lose any residential house for the project; and that most of the people from three affected villages had no opposition to give their lands to Opposite Party No.7 in lieu of proper compensation along with other facilities including employment opportunity with the Opposite Party No.7-Company and the objection was from some of PESA Activists present in each village."
With all these above contentions, he submitted that the writ petition is liable to be dismissed."
9. Keeping in view the submissions made, we have carefully read the averments taken in the writ petition as also the counter affidavits, the rejoinders. We have also perused all the documents annexed thereto. The written notes of submission filed by the parties have been gone through.
10. It be stated first that indisputably, the present Land Acquisition Proceedings have been undertaken by the State Government in order to grant Surface Rights to the Opposite Party Page 26 of 56 W.P.(C) No.31638 of 2022 No.7 over which the Opposite Party No.7 has the lease for mining and as such the right thereunder and flowing therefrom to win the minerals underneath by extracting the same and to deal with the minerals from the said land. The Opposite Party No.7 already has a mining lease over 873.057 Ha of land and the land involved under the acquisition proceeding are situated within the said leased out area. The current mining lease which includes the current areas of land under acquisition was part of a huge mining block initially granted to M/s. Bisra Stone and Lime Company Limited under a mining lease with Raja Bhabani Shankar Deo, the then Ruler of Gangpur State for 6400 acre from 13.10.1916 to 12.10.1946. The Opposite Party No.7 in the year 1950 established a Cement unit at Rajgangpur for supply of Cement for construction of Hirakud Dam. Therefore, the State Government subleased the same to the Opposite Party No.7 with effect from 02.05.1951 so as to enable the Opposite Party No.7 to fulfill the requirement of obtaining the lime stone for its Cement Plant for onward production of Cement and supply for construction of Hirakud Dam. Subsequent thereto, a directly mining lease was granted to Opposite Party No.7 over an area of 893.55 Ha with effect from 01.03.1990 having the life till 01.03.2010, for a period of 20 years. That mining lease was executed on 29.01.1997. The Opposite Party No.7 thereafter on 14.01.2009 applied for renewal of original Page 27 of 56 W.P.(C) No.31638 of 2022 mining lease and continued to so carry out the mining operation as permitted under the erstwhile rule 24-A(6) of the M.C. Rules read with section 8 of the MMDR Act. In view of section 8-A of the MMDR Act, which came to be introduced by the Amendment Act, 2015, the validity of the period of lease stood extended till 29.02.2040 over the originally granted area of 893.55 Ha. It was so done by a Supplementary lease deed dated 15.07.2016 and subsequent thereto, upon acceptance of the part surrender proposal of Opposite Party No.7 over 20.493 Ha, an amended lease deed was executed for revising the mining lease area to 873.057 Ha with effect from 17.10.2011. The Opposite Party No.7 thus is having the mining lease over the land of 873.057 Ha, has the right to win minerals from the leased area and as such to enforce the lease hold rights and so is entitled to obtain surface rights for carrying out the mining operation over 335.96 Ha of land. The instant land acquisition proceedings have been under- taken by the State to obtain surface right over a part of the remaining mining lease area of 269.475 Ha for allowing/ensuring the Opposite Party No.7 to enforce its right accruing under the mining lease deed executed in his favour, which is in force till 29.02.2040 unless otherwise determined in accordance with law.
11. All these above being the background facts for the initiation of the land acquisition proceeding, the challenge from the side of Page 28 of 56 W.P.(C) No.31638 of 2022 the Opposite Party No.2 to 5 as well as the Opposite Party No.7 as to the locus standi and authorization of the Petitioner No.1 to approach this Court in filing the writ petition stands first for being addressed.
The case of the Petitioners is that they are related to the recorded tenants whose names find mention in the Record of Right which have been furnished under Annexure-1 (series) of the writ petition. It is seen that all the Petitioners save and except the averment taken in that regard, despite the challenge on that score, have not furnished any other material to support their claim as regards their relationship with the recorded tenants. Although the writ petition appears to have been filed in representative capacity, yet the provisions contained under the Order-1 Rule-8 of the Code of Civil Procedure, 1908 (for short, 'the Code') have also not been complied with as mandatorily required.
In case of Ramchander Dunda and another -versus-Union of India; (1999) 9 SCC 105, it has been held that a writ petition filed in representative capacity is not maintainable where no application for leave under Order-1 Rule-8 of the Code of Civil Procedure, 1908 has been filed and obtained and no publication in this behalf was effected.
It has again been held in case of Nutanga Gram Panchayat- versus-State of Orissa; AIR 2016 Orissa 63 that a writ petition is Page 29 of 56 W.P.(C) No.31638 of 2022 not maintainable in representative capacity in the absence of any authorization. In the present instant case, the Petitioners have not obtained the leave of this Court under Order-1 Rule-8 of the Code nor any publication in that regard has been issued.
It is however seen that the name of the Petitioner No.6 has been mentioned as a recorded tenant under the said Record of Right under the Annexure-29 of the rejoinder filed by the Petitioners to the counter affidavit filed by the Opposite Party No.2 to 5. Perusal of that affidavit then reveals that the same has not been sworn by the Petitioner No.6 but by Petitioner No.1 and that too without any proof as to the authorization from any other Petitioner, more importantly, the Petitioner No.6. In view of all what have been said above, we find force with the submission of the Opposite Party Nos.1 to 5 and 7 that these Petitioners have no locus standi to initiate the instant proceeding before this Court by filing the writ petition challenging the Acquistion Proceeding.
12. Next coming to the merit concerning the challenges made by the Petitioner to the initiation of the Land Acquisition Proceedings, the contentions raised according to us would stand for appreciation so as to be duly addressed only in the backdrop of the background facts as stated in the foregoing paragraphs.
The process of acquisition of land commences only once the State Government publishes the preliminary notification in the Page 30 of 56 W.P.(C) No.31638 of 2022 Official Gazette. Under the old regime, when Land Acquisition Act, 1894 (for short, 'the LA Act) was in place, it was by way of a notification under section 4 of the said Act. The RFCTLAR & R Act was enacted in the year 2013 which came into force on 01.01.2014 in replacing the LA Act. The legislative purpose in coming out with such replacement of the statute, appears to be loud and clear that it was with a view to make the acquisition process consultative and at the same time to provide guarantee to the land losers/owners who are ultimately going to lose their property for ever, in receiving fair and equitable compensation by taking into account all the surrounding economic and social factors.
13. The object of RFCTLAR & R Act at this stage need be placed for proper appreciation.
The same reads as under:-
"An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialization, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in Page 31 of 56 W.P.(C) No.31638 of 2022 development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto."
14. The process of acquisition of land commences upon publication of a preliminary notification under section-11 of RFCTLAR & R Act. Chapter-II of the RFCTLAR & R Act deals with Social Impact Assessment (SIA) and Chapter-III on Food Security prior to publication of preliminary notification. Thus SIA report is required to be prepared prior to the commencement of the acquisition. As provided in section 4 of the RFCTLAR & R Act, the preparation of social impact study must assess if the proposed acquisition serves public purpose and whether the absent of land proposed for acquisition is the absolute bare minimum exchange needed for the project and whether acquisition at an alternative place has been considered and found not feasible. (Emphasis Supplied).
The SIA report must weigh the cost of addressing the Social Impact of the project with the benefits thereunder. What have been stated in sub section 5 of section 4 of the RFCTLAR & R Act being instructive of the purport of SIA study, the same is therefore extracted herein below.
"while undertaking a Social Impact Assessment study under sub-section (1), the appropriate Government shall, amongst other things, take into consideration the impact that the project is likely to have on various component such as livelihood of affected families, public and community Page 32 of 56 W.P.(C) No.31638 of 2022 properties, assets and infrastructure particularly roads, public transport, drainage, sanitation, sources of drinking water, sources of water for cattle, community ponds, grazing land, plantations, public utilizes such as post offices, fair price shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, anganwadis, children parks, places of worship, land for traditional tribal institutions and burial and cremation grounds."
15. Thus it appears that the very object of social impact assessment carried out under section 4 to section 10 of the RFCTLAR & R Act is to assess the proportionality of the social impact caused by a proposed acquisition, to assess if any lesser destructive alternatives are available and to recommend ameliorative measures for addressing said social impact. Once the SIA report is prepared and apprised by an Expert Committee and examined by the appropriate Government, the acquisition commences. The appropriate Government only after having examined, apprised and approved the SIA report, publishes the preliminary notification under section 11 of the RFCTLAR & R Act.
The notification is published only when it appears to the appropriate Government that the land in any area is required or likely to be required for any public purpose. So the SIA report will result in an acquisition notification under section 11 of the RFCTLAR & R Act. Then the purpose of the notification is to notify the persons in the area of Page 33 of 56 W.P.(C) No.31638 of 2022 acquisition so as to inform them about the SIA report and call for their objection to the proposed acquisition. (Emphasis Supplied) Under section 15 of the RFCTLAR & R Act, any person with interest in the land is at liberty to raise objection regarding the finding of the SIA report. As per the scheme of the RFCTLAR & R Act, the Government has to hear the objection/s received from the persons interested in the acquisition, survey and determine the area proposed to be acquired as also to prepare the Rehabilitation and Resettlement Scheme. It is only after the conclusion of all these above, the Collector publishes the public notice under section 21 of the RFCTLAR & R Act that the Government intends to take possession of the land and that claims to compensation and rehabilitation and resettlement for all interest in such lands may be made to him. In the touch stone of the above context, now the challenges made by the Petitioners to the acquisition proceeding are required to be appreciated.
16. It would be apposite at this juncture even at the risk of repetition to take note that the rights of the Opposite Party No.7 for mining operation over the entire mining lease area under the amendment lease Deed stand crystallized under section 27-A (1) of the MMDR Act read with Rule-52 of the Mineral (other than Atomic and Hydro Carbon Energy Mineral) Concession Rules, 2016 in pari materia with the Rule-72 of the erstwhile MC Rules. Page 34 of 56 W.P.(C) No.31638 of 2022
At this juncture, it would be apt to refer to the decision in case of State of Tamil Nadu-versus-MPP Kavery Chetty; (1995) 2 SCC 402 wherein the Hon'ble Apex Court has held that as per section 24-A of the MMDR Act, the holder of a mining lease is empowered to enter the land on which the lease has been granted and carry out the mining operation. He is however obliged to compensate the land owner for any loss or damage, that the operations as would be so carried out may cause.
Adverting to the original mining lease deed in favour of Opposite Party No.7, it reveals that the following rights and powers have been conferred upon in relation to the mining area.
"i. Opposite Party No.7 has the liberty and power at all times to enter upon the said lands and to search for mine, bore, dig, drill for, win, work, dress, process, convert, carry away and dispose of the said mineral/minerals.
Opposite Party No.7 shall hold and enjoy the rights and premises demised for and during the term, without any unlawful interruption from or by the State Government, or any person rightfully claiming under it.
i. In the event, a surface right owner refuses to give his consent to Opposite Party No.7 for the purposes of mining then the amount of compensation offered by the Opposite Party No.7 is required to be deposited with State Government and upon such deposit Opposite Party No.7 is allowed to enter upon the mining area for the purpose of carrying out mining operations. It is pertinent to note here that State Government in assessing the amount of such compensation would be governed by the principles of Land Acquisition Act."
17. As already stated, thus the rights of the Opposite Party No.7 having been crystallized under the MMDR Act, the purpose of the Page 35 of 56 W.P.(C) No.31638 of 2022 present land acquisition proceeding are only to grant and secure surface rights over the land for which mining lease has already been granted in favour of Opposite Party No.7. So the land acquisition proceedings at hand are complementary in nature to finally effectuate the grant of said mining lease which had been granted prior to the coming into force of the RFCTLAR & R Act. Thus in our view, the provisions of RFCTLAR & R Act has accordingly to be read and construed so as not to defeat the very grant of mining lease conferring the rights upon the Opposite Party No.7 (lessee) prior to the coming into force of RFCTLAR & R Act, keeping in view the huge legal ramifications. In accordance with the original mining lease deed, the Opposite Party No.7 is duly entitled to get the surface right over the concerned land for having under taken to pay the compensation to the occupiers as would be fixed by the State Government, which too owes the legal obligation in that regard.
The provisions of RFCTLAR & R Act when do not apply to the 13 (thirteen) enactments enlisted in Schedule-IV of the Act, it is however in the interest of land owners, the Central Government by an Order i.e. RFCTLAR & R Act (Removal of Difficulty Order, 2015) has extended the beneficial advantages relating to determination of Compensation, Rehabilitation and Resettlement under the RFCTLAR & R Act even for the Land Acquisition Page 36 of 56 W.P.(C) No.31638 of 2022 Proceedings under those 13 (thirteen) enactments. The purpose behind the extension is quite evident as per those enactments and the objective is loud and clear that when a land owner is being deprived of using his land; notwithstanding the purpose of acquisition, there should not be any differential/inequal treatment in the matter of payment of Compensation, Rehabilitation and Resettlement. Therefore, similar principles would be applicable in the present case wherein for determining the Compensation payable to the land owners, the provisions of RFCTLAR & R Act shall and have to prevail over the MMDR Act, being more beneficial. Since when under Rule-52 of the Mineral Concession Rules, 2015, the land owners are entitled to receive only annual compensation based on:-
"(i) In case of agricultural land; Average annual net income from cultivation of similar land for previous three years; or
(i) In case of non-agricultural land average annual letting value of similar land for previous three years."
as provided under section 28 of the RFCTLAR & R Act, several factors are taken into consideration by the Collector while determining the award; And over and above the same as mandated under section 30 of the RFCTLAR & R Act, apart from total compensation Solatium would be imposed equivalent to the Page 37 of 56 W.P.(C) No.31638 of 2022 100% of the compensation amount as determined for being paid to the land looser.
18. The State Government in the present case, in the facts and circumstances as narrated above, is found to be acquiring the said land for its own use, hold and control. The land acquisition is one under section 2(1)(b)(iii) of the RFCTLAR & R Act. Thus, in the given case, the requirement to obtain prior consent from the affected family does not stand as the legal need. The State Government being the owner of the minerals under the surface is acquiring the land to obtain surface rights and grant the same to the lessee here the Opposite Party No.7, for carrying out the extraction of the minerals of its own in fulfilling its legal obligations undertaken as per the mining lease deed. The Opposite Party No.7 is, therefore, only becoming a temporary holder of the surface right so as to win/extract minerals in terms of the mining lease deed, which is valid up to 29.02.2040 and is legally obliged thereunder to pay royalty, tax, cess etc. to the State for said privilege to win over the minerals under the land whereas the paramount ownership would rest with the State. The rights of the lessee are subject to the provisions of MMDR Act and the Rules made thereunder. The lease deed does not grant unlimited right, absolute title and possession in perpetuity to the lessee over the said land. After expiry/termination/suspension/ lapse of the Page 38 of 56 W.P.(C) No.31638 of 2022 mining lease standing in favour of the Opposite Party No.7, the State will resume possession of the said land and said land shall be subject to the action as envisaged under section 8(A) of the MMDR Act read with the Rules made thereunder.
By the instant acquisition of the lands, the State is being clothed with the right, title, interest of the said land involved in acquisition and it is not being so clothed or conferred upon the Private Party/Company, here the Opposite Party No.7. Therefore, in the instant case, the mandatory requirement as for the acquisition of land for Private Companies requiring prior consent of at least 80% (eighty percent) of the affected family as provided in section 2(2)(b) of the RFCTLAR & R Act does not arise.
19. Be that as it may, the Government in the Department of Steel and Mining vide letter dated 23.08.2007 has issued the administrative approval for land acquisition of total 280.51 acres of land in village Kukuda, Lanjiberna and Bihabandha subject to the condition that the land so acquired shall be leased out to the Opposite Party No.7 only for the duration till the validity of the mining lease after which it shall revert to the State Government. No doubt, the State Government in its letter has mentioned that such land shall be acquired under section 2(2)(b) of the RFCTLAR & R Act, but on admitted factual background and in the backdrop of the initiation of the process for acquisition of the land after Page 39 of 56 W.P.(C) No.31638 of 2022 submission of application in Form-A under rule 3 of the ORFCTLAR & R Rules, 2015 that nomenclature clearly appears to be nothing but misquoting and thus cannot stand to guide all such actions as conclusive when the intention is very much clear from what have been aforestated.
The instant acquisition proceeding being referable to section 2(1) of the RFCTLAR & R Act, the nomenclature as under section 2(2)(b) of the Act as indicated in the letter, which appears to be a misquoting would neither create nor affect the rights of the parties and all others, having the interest. That apart, the limited nature of right of Opposite Party No.7, who is the lessee over the land covered under the mining lease and the dominant out right of the State as the lessor is further evinced from a bare reading of the provisions of the MMDR Act, Mineral Concessions Rules (M.C. Rules) and Minerals (other than Atomic and Hydro Carbon Energy Mineral) Concession Rules, 2016 as well as the Transfer of Property Act, 1882. Those are culled out from what have been quoted herein below being relevant for our appreciation.
1. Mines and Mineral (Development and Regulation) Act. 1957 Sl Section/Rules Particulars No.
1. Section 2(ac) Definition of leased area.
2. Section 2(c) Definition of Mining Lease.
3. Section 4 No person shall undertake mining operations except in accordance with terms of Mining Lease ('ML')
4. Section 4A(1) State may make a pre-mature termination of Page 40 of 56 W.P.(C) No.31638 of 2022 the ML for reasons of expediency.
5. Section 4A(4) The ML shall lapse on failure of the lease to commence production and dispatch of minerals of discontinuance of the same.
6. Section 8A All MLs before the commencement of the MMDR Act shall be deemed to have been granted for a period of 50 years. On expiry of the lease period, the lease shall be put up for auction.
7. Section 9 Lessee shall pay royalty in respect of minerals.
8. Section 9A Lessee shall pay yearly dead rent to the State Government.
9. Section 17A Central Government on consultation with the State Government may reserve any area under any mining lease.
10. Section 24 Power of entry and inspection.
11. Section 24A(2) ML holder shall be liable to pay compensation to surface land occupants.
2. Minerals Concession Rules, 1960 Sl. Section/Rules Particulars No.
1. Rule 28 Lapsing of leases on non-commencement of discontinuance of production and dispatch
2. Rule 30 The lessee shall have right of mining operations on the leased land.
3. Rule 11 Lease to be executed within six months of the order of the grant of lease and upon failure to do so the State may revoke the grant of lease.
4. Rule 37 Lease shall not be transferred without State's approval.
5. Rule 72 Payment of compensation to occupier of the land or owner of surface rights.
6. Form K-Part II Lessee shall pay rent and royalty for minerals and III (CL.1) Lessee shall commence operation within one year from date of execution of ML (CL.3) Lessee shall secure all pits, shafts and workings in the leased land (CL.5) Page 41 of 56 W.P.(C) No.31638 of 2022
7. Form K -Part The State Government shall order the VII occupier of land to allow the lessee to enter and carry out operations subject to compensation. In assessing such compensation, the State Government shall be guided by Land Acquisition Act.
3. MINERAL CONCESSION RULES, 2016 Sr. Sections/Rules Particulars No.
1. Rule 12(1)(a),(b) Lessee shall pay royalty and surface rent
2. Rule 12(1)(c) Lessee shall commence mining operations within two years from the date of execution of the ML.
3. Rule 12(10) On default in payment of royalty or dead rent, the State may terminate the lease deed after providing notice..
4. Rule 12 A For the first two years after execution of a new lease, the holder of mining lease shall maintain such level of production so as to ensure minimum dispatch of 80% of the annual production average for the previous years.
5. Rule 18 State Government shall conduct auction of expiring ML.
6. Rule 20 The ML shall lapse on failure of the lessee to commence production and dispatch of minerals or discontinuance of the same for a period of two years.
7. Rule 52 Payment of compensation to occupier of the land or owner of surface rights.
8. Schedule VII Cl.2 THE STATE grants ML for conducting mining operations for a period of 50 years. The lease to be held subject to payment of royalties and other payments.
9. Schedule VII Cl.3 Lessee shall comply with the terms of the lease and make payment of royalties.
Page 42 of 56 W.P.(C) No.31638 of 2022
4. TRANSFER OF PROPERTY ACT, 1882 Sr. Sections/Rules Particulars No.
1. Section 105 Lease defined as "....transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised...
(...) The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
2. Section 108 Rights and liabilities of a lessor and lessee.
3. Section 111 Determination of lease.
20. At this stage, it would not be out of place to indicate that the Petitioners have not challenged the Collector's report dated 22.10.2021, wherein the Collector has decided the very same issues raised by the Petitioners in the instant writ petition after publication of the preliminary notification under section-11 of the RFCTLAR & R Act. Some Petitioners herein had filed WP(C) No.23979 of 2021 and 25730 of 2021 seeking the following reliefs:-
"a) quashing the final SIA report;
b) quashing Declaration under Section 8(2) of the LA Act, 2013;
c) quashing the Preliminary Notification under Section 11 of the LA Act, 2013; and
d) challenging the Gram Sabha meeting held on 16.04.2021."Page 43 of 56 W.P.(C) No.31638 of 2022
This Court, without considering the prayers, disposed of the same simply granting the liberty to the Petitioner to file objection under section 15(1) of the RFCTLAR & R Act before the Authority, who was directed to dispose of the same with a reasoned order.
Pursuant to the direction, the Petitioners raised their objections before the Collector, who conducted personal hearing on those for the objections received and some Petitioners too had appeared there in person. The Collector then has submitted a detail reasoned report on 22.09.2021 addressing the contentions of the Petitioners as placed under Annexure-21 of the writ petition. Subsequently, after enquiring into the objection received from the interested person under section 21 of the RFCTLAR & R Act and giving the opportunity of hearing, the Collector has passed the award for the said land under section 23 of the RFCTLAR & R Act which have not been challenged by the Petitioners in the present writ petition. So, when many of the issues raised by the Petitioners herein, have already been addressed by the Collector in its report dated 22.10.2021 and the Petitioners did not challenge the said report and had approached this Court without seeking any prayer to set aside/quash the said report, thus as a result thereof, the same has attained finality leading the land acquisition proceedings also to attain the finality.
Page 44 of 56 W.P.(C) No.31638 of 2022
21. For a moment, even assuming that consent of 80% (eighty percent) of the affected family was the mandatory requirement for acquisition, it needs to be kept in mind that such process of obtaining consent has to be taken to be a continuing process.
The case of the Petitioners is that State did not take prior consent of 80% (eighty percent) of the affected family as required under section 2(2)(b) of the RFCTLAR & R Act. The 'affected family' is defined in section 2(c)(i) of the RFCTLAR & R Act as the "family whose land and other immovable property has been acquired" and the 'family' is defined in section 2(m) of the RFCTLAR & R Act as 'a person', his/her spouse, minor children, minor brothers and minor sisters, dependant on him. On a conjoint reading of these provisions, it is evident that an affected family, consist of a person, whose land has been acquired (land owner) and his spouse and minor dependants. As already stated such a process is taken to be an ongoing one and takes place through various phases of acquisition proceeding without determining the land owners of the affected areas. It is thus may not be possible to obtain the consent of the affected families in one go when it even so happens that because of non-updation of the revenue records, the transfer of ownership within the family through inheritance and/or transfer of property to other through legally permissible means/ways as also execution of document/instrument, it is not Page 45 of 56 W.P.(C) No.31638 of 2022 possible to ascertain all the land owners at the threshold of the acquisition proceeding.
The legislature was well aware of the above facts, which would be evident from the provisions contained in:-
"(i) Section 4 of the RFTLAR & R Act that the SIA study only estimate the project affected family;
(ii) Section 11(5) that once the acquisition proceedings have commenced under section 11, the Collector updates the land record;
(iii) Rule-20 of the ORFCTLAR & R Rules that the Tahasildar shall update the land record after the Section 11 notification;
(iv) Rule-21 of the ORFCTLAR & R Rules that the Collector prepares a list of affected family from whom consent shall be sought for after updation of the land record by the Tahasildar;
(v) Rule-20 of ORFCTLAR & R Rules that the Tahasildar shall update the land records after section 11 notification;
(vi) Section 21 that the Collector once again to issue public notice calling for person interested to make their claims for compensation; and
(vii) Section 23 that the Collector should determine the persons interested and land owners before the awards."
A conjoint reading of all these above and culling out the legislative intent behind the same; it stands that the process of obtaining the consent as envisaged in the RFCTLAR & R Act read with the Rules made thereunder is an on-going process which Page 46 of 56 W.P.(C) No.31638 of 2022 commences from the stage of Social Impact Assessment (SIA) and continues till all the land owners/persons interested are identified at the stage of the award.
It is, therefore, in the above context in our considered view, the consent noted in section 2(2)(b) of the RFCTLAR & R Act has to be construed. During this process, it is not unlikely to be discovered that the figures of the affected family as the estimation set out in the SIA Report may not stand freezed. This is best demonstrated from the facts that the Petitioners themselves have claimed to be affected families when their names do not find place in the revenue records. The Scheme of the RFCTLAR & R Act itself recognizes the above and the provisions for instances where ascertainments of affected family may not be possible or may be disputed.
To highlight, a few regarding the recognition of such impossibility, we feel it apposite to refer to:-
"(i) Section 64 of the RFCTLAR & R Act which states that a person interested may apply to the Collector for referring the matter to the LA Authority in case of any dispute pertaining to whom the award is payable;
(ii) Section 65 of the RFCTLAR & R Act that the Collector while making a reference to the LA Authority is required to mention the names of persons, whom he has reason to think to be interested in the land; and
(iii) Section 77(2) in relation to reference pertaining to dispute concerning the title over the land or if no person Page 47 of 56 W.P.(C) No.31638 of 2022 is competent to alienate the land, the Collector is to deposit the compensation with the LA Authority."
22. Adverting to the case at hand, we find that the SIA report, finds the estimation that around 442 families would lose agricultural land but none of them would lose residential house. As on 22.01.2024, in total 482 affected persons had given their consent in Form-J for land acquisition out of whom 13 (thirteen) from Lanjiberna, 88 (eighty-eight) from Bihabandha and 381 (three hundred eighty-one) from Kukuda. As of now, the total number of signatures of affected persons obtained under Form-J of ORFCTLAR & R Rules is 535 (five hundred thirty five) as stated in the counter affidavit of Opposite Party No.2 to 5. Therefore, this also satisfies the requirement of consent of 80% (eighty percent) of affected family. The SIA report further reveals that most of the people from three affected villagers did not oppose the acquisition.
23. The doctrine of compliance is an equitable doctrine designed to avoid hardship in cases where a party does all that can reasonably be expected of it, but failed and faulted in some minor or inconsequential aspects which cannot be described as the essence or the substance of the requirement, then that would have no adverse consequence at all.
24. It has been held in case of "Commissioner of Central Tax- versus- Hari Chand Shri Gopal and others ; (2011) 1 SCC 236, Page 48 of 56 W.P.(C) No.31638 of 2022 "32..... Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed."
"34..... The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential."
25. Further, the law is also well-settled that a provision is only mandatory if its non-compliance would render the entire proceeding invalid. In May George -versus- Special Tahasildar & Others; (2010) 13 SCC 98, the Hon'ble Supreme Court held:
"25. The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision Page 49 of 56 W.P.(C) No.31638 of 2022 could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The Court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the Statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.
26. Coming to the challenge on the ground of non-compliance of the provisions of section-14 of the RFCTLAR & R Act carrying the contention of the Petitioners that the State Government has not obtained consent of Gram Sabha of the three villages under Form-
M as provided in RFCTLAR & R Rules, the appreciation has to be again in the context of section 41 of the RFCTLAR & R Act and the Form-M must be read in that light and direction.
Section 41 of the RFCTLAR & R Act carries the burden which are important as the same is in the form of stipulation. It says "as far as possible", no acquisition of said shall be made in the Scheduled Area and where such acquisition does take place, it shall be done only as a demonstrable last resort. In view of that, the requirement of prior consent of Gram Sabha or the Panchayat or the Autonomous District Councils as stated under section 41(3) Page 50 of 56 W.P.(C) No.31638 of 2022 of the RFCTLAR & R Act, must draw the colour from the terms used, i.e., "as far as possible" and "demonstrable last resort" as find place in section 41(1) and 41(2) of of the RFCTLAR & R Act respectively.
In the given case as already stated, the instant land acquisition proceedings have been taken up by the State only for the purpose of mining of the mineral ores pursuant to the mining lease standing in favour of the Opposite Party No.7 remaining in force till the year 2040. The minerals underneath the surface are owned by the State. It is, therefore, permissible to infer that the State undertook the acquisition as the last demonstrable resort.
A careful reading being given, sub section 41 of the RFCTLAR & R Act, does not give rise to a construction that the same stand as the mandatory provision for being complied with in all and every case as of legal necessity. Its compliance, therefore, necessarily be read in the context of the entire RFCTLAR & R Act and also in the backdrop of the background facts leading to the present land acquisition proceedings.
27. The intent of the legislature in coming out with the legislation i.e. RFCTLAR & R Act in replacing the earlier LA Act is to see that the entire land acquisition proceedings are done in a humane participative, informed and transparency process. In the given case, with the obtained facts and circumstances, it appears to Page 51 of 56 W.P.(C) No.31638 of 2022 us that the State has followed the mandate of law and complied with the provisions by preparing a comprehensive SIA report, inter alia providing fair compensation to the land losers, timely publication of section-11 notification and more importantly allowing the land losers to raise their objection and hearing them.
Therefore, the State in our considered view has substantially complied with the mandate of the provisions of RFCTLAR & R Act as required for the given purpose.
That apart, section 41 of the RFCTLAR & R Act does not provide any consequence for non-obtaining the prior consent of the Gram Sabha. Thus, any such strict interpretation as regards the requirement of consent under section 41 in frustrating the entire land acquisition proceeding at a belated/later stage appears to us to be running contrary to the very intent behind the said legislation.
In this connection, we may refer to one decision of the High Court of Uttarakhand in case of Hira Singh-versus-State of Uttarakhand (M/s. Mandal 2364 of 2015 decided on 04.03.2022). It has been held that the use of the term as far as possible as provided in section 41 of the RFCTLAR & R Act and the protection granted thereunder is directory in nature and not mandatory. This stands in support of view taken.Page 52 of 56 W.P.(C) No.31638 of 2022
28. The SIA report records that the site selected falls under the Scheduled Areas as per the 5th Schedule of the Constitution of India. But here no alternative site could have been considered since it is a site specific existing mining project having the tenure till the year 2040 when all such necessary statutory clearances and permission under the various enactments and rules of the Government of India and State Government have been obtained as would reveal from Annexure-F/7 of the counter affidavit filed by the Opposite Party No.7 and conditions imposed therein have to be followed all throughout. The Block Development Officers of Rajgangpur as well as Kutra as would reveal from Annexure-3/5 of the counter affidavit of the Opposite Party No.7 have submitted a detail report of the Gram Sabha proceeding held on 26.01.2020, which clearly finds mention that a large number of villagers submitted their written consent supporting the Land Acquisition Proceedings in stating that they could not place in the Gram Sabha out of fear of reprisal. All these being the official acts of the concerned officers in discharge of their official duties; those carry with them, the presumption as to have been legally so done, which in the given case is not seen to have been dislodged.
29. That apart, the provision contained in section 4 of the Panchayat Extension to Scheduled Areas Act, 1996 (PESA Act) when puts total restriction for grant of mining lease for "minor Page 53 of 56 W.P.(C) No.31638 of 2022 minerals" without the recommendation of the Gram Sabha or the Panchayat at the appropriate level and makes such recommendation as the mandatory precondition, the same is confined to the grant of mining/exploitation of minerals in the Schedules Areas only in respect of the minor minerals and not the major minerals with which we are concerned in the present case as here it is lime stone, which is major mineral.
30. Proceeding to address the submission from the side of the Petitioner touching upon the violation of the provision contained in section 7(2) of the RFCTLAR & R Act that one representative of the Opposite Party No.7 was an attendee of the Appraisal Committee, the same according to us is untenable when sub section 2 of section 7 of the RFCTLAR & R Act is read. It says that Expert Group constituted under sub section (1) shall include two non-official scientists (b) two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be
(c) two experts on Rehabilitation (d) a technical expert in the subject relating to the project. The above abundantly make it clear that the list of members of the Expert Group is not exhaustive and it is only illustrative. That Expert Group may very well include other member apart from the said list having technical expertise and of some other backgrounds so as to serve the very purpose behind the constitution of the Expert Group and the assistance Page 54 of 56 W.P.(C) No.31638 of 2022 sought for when it says that the technical expert on the subject area relating to the project, it does not put a bar for inclusion of any technical expert from the project proponent; here the Opposite Party No.7 so long as, such a member is a technical expert, more-so when it is said that the Appraisal Committee did have the representative of the villagers. For all the aforesaid, we find that the said challenge has no factul as well as legal base to stand on.
The District Level Independent Multi Disciplinary Expert Committee was held on 08.06.2021 in virtual mode which was attended by the Sarpanch, Katang and Kukuda Gram Panchayat in virtual mode as we find from Annexure-s/5 of the counter affidavit of the Opposite Party No.7.
31. Next it is said that the provision of section 5 of the RFCTLAR & R Act was not followed inasmuch as notice was not issued by the Opposite Party No.8 and 9 and public hearing did not take place. The contention stands repelled when we go through the SIA report where the views of the participants have been recorded. We also find from the official record that the public hearing was held in accordance with section 5 of the RFCTLAR & R Act in village Kukuda, Bihabandha and Lanjibarna. When such state of affairs emerging from the official record, the challenge made to the same is found to be having no factual base to stand upon. Page 55 of 56 W.P.(C) No.31638 of 2022
In view of the foregoing discussion and reasons, we find the present writ petition to be devoid of merit.
32. In the result, the Writ Petition stands dismissed and, in the facts and circumstances, without cost.
(D. Dash), Judge.
G. Satapathy, J. I agree (G. Satapathy), Judge.
Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: OHC Date: 20-Sep-2024 10:29:09 Page 56 of 56 W.P.(C) No.31638 of 2022