Meghalaya High Court
Registrar General High Court Of ... vs State Of Meghalaya And Ors on 15 December, 2015
Author: T.Nandakumar Singh
Bench: Uma Nath Singh, T Nandakumar Singh, S.R.Sen
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THE HIGH COURT OF MEGHALAYA
WP(C). No. 164 of 2015
Registrar General,
High Court of Meghalaya.
....Petitioner
-vrs-
1. State of Meghalaya,
Represented by the Chief Secretary
to the Government of Meghalaya, Shillong.
2. Deputy Commissioner,
Ri-Bhoi District, Nongpoh.
3. Chairman,
Airport Authority of India,
Rajiv Gandhi Bhawan,
Safdarjung Airport,
New Delhi - 110003.
4. The Defence Secretary,
Government of India, 101-A,
South Block, New Delhi,
Fax No. 23010044
[email protected]
5. Chief of the Army Staff
Webmaster, Indian Army
Room No. B-30, ADG PI
South Block
Integrated Headquarters of MoD (Army)
New Delhi -110011
[email protected]
....Respondents
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BEFORE THE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH THE HON'BLE MR. JUSTICE S.R.SEN For the petitioner : Mr. P.K.Rai, Sr.Adv.
Mr. P.Yobin, Adv.
For the respondents : Mr. B.P.Todi, Addl. AG.
Ms. Y.Shylla, GA.
Mr. K.Paul, Adv.
Mr. N.Mozika, Adv.
Date of hearing : 10-12-2015
Date of Judgment : 15-12-2015
JUDGMENT AND ORDER
(T.Nandakumar Singh, J)
This present writ petition was registered on the basis of the report of causing undue hardships and inconvenience to the local populace at large in availing the service (all weather) of the big turbo-jet AB-321 aircrafts despite huge investment of public money to make the Shillong Airport functional as submitted by the Registrar General of this High Court.
2. Heard Mr. P.K.Rai, learned Sr. counsel, assisted by Mr. P.Yobin, learned counsel appearing for the petitioner, Mr. B.P.Todi, learned Addl. AG, assisted by Ms. Y.Shylla, learned GA, appearing for the respondents No. 1 and 2, Mr. N.Mozika, learned 3 counsel appearing for the respondent No.3 and Mr. K.Paul, learned counsel appearing for the respondents No. 4 and 5.
3. The fact of the case unfold in the proceeding of the present writ petition is briefly recapitulated. The airport (Shillong Airport), also known as Umroi Airport, is a civilian airport located at Umroi about 30 kms from Shillong, Meghalaya. The airport was constructed in mid 1960s. Land measuring 224.16 acres was acquired for expansion of the airport in 2009. The new terminal building was built at the cost of Rs. 300 million. However, the airport is a small airport set up over an area of 192 acres having a runway of 1829 metres length. The airport is capable of operating only small aircraft like ATR-42 under BFR conditions requiring visibility of 5km or more. During rainy seasons and poor visibility conditions, the flights are unable to land at the airport due to lack of IAL facility. Due to constrain of adequate runway length, operation of bigger turbo-jet AB-321 aircrafts like Boeing, Airbus etc from the airport is not possible. In order to explore the possibility of runway extension at the provision of associated infrastructure required for smooth and uninterrupted conduct of aircraft operations from the airport even during bad weather, low visibility conditions by turbo-jet aircrafts like Boeing, Airbus etc through this airport, the State Government of Meghalaya had requested the Central Government and the Airport Authority of India (for short AAI) to arrange site inspection of additional land required for extension of runway and provisions of other associated infrastructure for smooth conduct of 4 operation at all times as per parameters and norms fixed by ICAO/DGCA/AAI etc. For expansion of Shillong (Umroi Airport), the consultant in their detailed project report recommended that additional land to the extent of 205.489 acres would be required for the expansion of the airport.
4. It was also proposed to carry out other upgradation works like extension of apron for parking of aircraft, installation of Instrument Landing System (ILS), construction of Isolation Bay and other allied works to operationalise the airport for landing of turbo-jet AB-321 type aircrafts like Boeing, Airbus etc. For the purpose of additional land required for expansion of the runway and upgradation of the airport, the State Government through Collector of Ri-Bhoi District, initiated land acquisition proceedings in the year 2008 and handed over possession of 192.26 acres of land to the AAI on 26-11-2010. In addition to the above, additional land measuring 31.90 acres in defence area is also required for the airport purposes.
5. After possession of the land measuring an area of 192.26 acres in November 2010, the first initial work was to construct a boundary wall within the acquired land. The AAI called for tenders and awarded the work of construction of 8088 metres long boundary wall to M/s Shrolenson Marbaniang in May 2011. The contractor completed only 39% of the work. While the construction was going on, there was serious problem and 5 obstruction caused by the land owners and villagers on the grounds that:-
a. The land owners had not been paid adequate compensation.
b. Compensation had been paid to wrong persons and not the actual land owners/occupiers of the land.
c. Construction of boundary wall would block villagers and residents of nearby villages would have no access/approach to the highway.
6. For providing approach road to villagers of the nearby villages who would be affected by the construction of boundary wall, the AAI had provided 10 ft strip of land out of the airport land (where needed) and started immediate construction of the proposed alternative road on priority basis for completion without further delay. As there was no substantial headway in the matter, the contract for construction of the boundary wall awarded to M/s Shrolenson Marbaniang was foreclosed in September 2012. Because of non completion of construction of the boundary wall, the AAI was unable to call for tender for extension and strengthening of runway, extension of apron for parking of aircrafts, installation of ILS, construction of Isolation Bay and other allied works.
7. A request was also made to the AAI to examine the possibility of providing 20 ft land instead of 10 ft for the 6 alternative approach road. Providing 20 ft along the periphery of land for construction of village road was not feasible inasmuch as AAI had already constructed the boundary wall over 3187 meters and re-demarcation of the land would involve demolition of large stretches of boundary wall. Further, due to operational requirement it was not possible for AAI to give 20 ft wide land near the proposed Isolation Bay area. It is also stated that there was delay on the part of the Defence in transferring 35 acres of defence land from Umroi Military Station for expansion of the Shillong Airport. Even though the Umroi Military Station is facing on overall shortfall of land for its own growth plan, the army was of the view that expansion of Umroi Airfield is in the national interest. The defence authority was to part 35 acres of defence land required for expansion of the Umroi Airport in lieu of the suitable alternative land having an area of 32 acres to be provided by the State Government. Hence, there was a considerable delay in completion of the project for workable airport (Umroi Airport) which started far back in the mid 1960s.
8. This Court passed an order dated 23-07-2015 stating that:
"......The very fact that there is a great public interest and urgency involved in the matter, for, the project is lying idle even after investment of huge public money spent by the State Government as well as the Airport Authority of India, for the past about 50 years, we have to step in, by way suo moto cognizance. That is why we would also like to know the views of the Chief of Army Staff and the Defence Secretary, on the impending issue of exchange of Defence lands with the contiguous lands which can be acquired by the State only upon getting the willingness of Defence. We may also say that the expansion of Shillong Airport would not only be in the interest 7 of the local natives civil administration, national and international tourism, but would also cater to facilitate the air services for the Defence.
It also needs to be highlighted that the Airport Authority of India has already procured the Instrument Landing System for Shillong (Umroi Airport) at the cost of Rs. 2.11 crores which is lying non-functional at Guwahati Airport, on account of dearth of space required to make it operational."
9. One Shri Ranjit Kumar, Administrative Commandant of Station Headquarter Umroi Military Station on behalf of Chief of Army Staff of the Indian Army had filed an affidavit dated 05-08- 2015 that the army had conveyed their willingness to transfer 32 acres of their land for expansion and modernization of the Umroi airport on the conditions that :
"A. Land offered in exchange by the State Government should be contiguous to the present defence land at Umroi.
B. The land should be of equal value with the defence land being requested for.
C. The land so offered should have similar buildability factor."
10. The meeting of the Committee for transfer of defence land to the Civil authority was held on 05-06-2013 and it was decided that the Officer/Magistrate Incharge of Revenue of Ri-Bhoi District shall submit a report with respect of availability of land in the surrounding Umroi Military Station by 15-06-2013. 8 Eventually, certain pieces of land were identified, a survey was carried out by the Station Headquarter of Umroi and the details were communicated to Deputy Commissioner, Ri-Bhoi District on 27-05-2013 and 17-02-2014.
11. It is clear from the affidavit filed by the State respondents that one of the stumbling blocks in completing the project for expansion of Umroi Airport was the un-authorised occupation of part of the land acquired for construction of Umroi Airport by some villages by illegally constructing houses after payment of compensation to them. This Court passed an order dated 15-10- 2015 that:
"......Learned Advocate General, also informs on instruction that the occupants have been duly asked to vacate the premises for carrying out the demolition exercise. The Deputy Commissioner, Nongpoh, has requested the National Highway Authority of India in advance to provide JCB machines and bulldozers which are already deployed and working on Guwahati - Shillong Highway for carrying out the demolition. The Deputy Commissioner also states that she has made all necessary arrangements for carrying out the demolition and also asked the Superintendent of Police, Ri-Bhoi District on 15- 10-2015 to ensure maintenance of law and order during and after the demolition drive. Thus, now the position being clear that there is no impediment, whatsoever, in carrying out the demolition and raising boundary wall of the Shillong Airport for expansion, we direct the Deputy Commissioner to do the needful in terms of her statement as well as that of the learned Advocate General and carry out the demolition latest by 16.10.2015 evening. The National Highway Authority of India is directed to provide JCB machines and bulldozers as per requirement of the Deputy Commissioner forthwith, of course, on payment of reasonable charges. The Chief Judicial Magistrate, Nongpoh, shall submit, by today evening a report regarding the status of demolition exercise. We also make it clear that 9 the Airport Authority of India shall strictly follow the law in floating tenders for the construction of ATC tower and ILS system with expert know-how and in that respect, no trading license, whatsoever, shall be required to be obtained from the local District Council and such requirements are not based on any provision of law enacted by the Parliament or the State Legislature or the judgments of this Court and the Supreme Court. This order is meant to apply only for this case for the reason that the nature of job required to be undertaken is highly technical: for, the Airport is to provide safe aviation to air passengers. All the authorities involved in the expansion project shall do the job as per their assignments to complete the project at the earliest failing which they may be proceeded against under the law. Further, the construction of the boundary wall shall be completed within a minimum period of only 3(three) months and the Airport Authority of India shall have liberty to inform the Court in case the Construction Agency causes delay in construction and is found to compromise with the quality of such construction."
12. Respondent No.1 filed affidavit dated 27-10-2015 that in compliance of the order dated 15-10-2015, illegal structures constructed by the encroachers on the acquire land had been demolished. The Chief Judicial Magistrate, Nongpoh had also submitted the report that the demolition of the illegal construction had been completed. This Court again passed an order dated 24-11-2015 that:
"On being enquired as to whether the defence land has been handed over to Airport Authority of India and in turn to the PWD of the State for raising boundary walls, learned counsel for defence, Shri K Paul states that, the meeting of Board of Officers was convened on 19.11.2015 itself and the land has been proposed to be handed over to the Airport Authority of India provided that the latter has completed the procedural formalities to receive the possession. Shri N Mozika, learned counsel, appearing for the Airport Authority of India, however, states that since demarcation was not 10 done, the authority could not take possession of the land. We wonder as to why the Officers of the Airport Authority of India and the State Government did not bring this fact to the notice of this Court on the last date of hearing. We thus, direct the authorities to complete the process of identification and demarcation of 32 acres of Defence Land being offered to the Airport Authority of India and on the next date of hearing i.e. 26.11.2015, inform the Court on affidavit that the land has been handed over to the authority and State PWD for construction of the boundary walls. We cannot rule out the anxiety in the mind of selected few who may have survived and thrived in power due to ignorance and poverty of native tribes. That is why there may be last moment frantic efforts to impede the project because with the establishment of Umroi Airport, it is more likely that this State may see a revolutionary change in the mindset, the level of awareness and the way of life of otherwise very liberal and progressive tribes. It will also give impetus to tourism activities and other such activities necessary for sustainable development of the area. That is the precise reason that the High Court, realizing the importance of Airport in public interest, has been insisting in making the Umroi Airport fully functional as early as possible. We also direct the Deputy Commissioner, Ri-Bhoi District, and the Military Authority present in the Court to inspect the site of 32 acres of land being proposed by the State Government to be given in exchange to the Defence as pointed out by the Chief Secretary during the course of hearing and inform the Court on 26-11-2015."
13. Col. Ranjit Kumar, Administrative Commandant of Station Headquarter Umroi Military Station filed an additional affidavit dated 26-11-2015 that as directed by this Court vide order dated 24-11-2015, a joint survey of the defence land to be transferred was carried out on 24th and 25th November, 2015 along with representative of Airport Authority of India, Defence Estate Officer and the District Collector's Office. The land identified by the AAI as required by them for expansion of Umroi Airport measuring 11 31.825 acres had already been demarcated and the land had been handed over to the AAI. In addition thereto a No Objection Certificate for immediate commencement of construction in the 31.825 acres of defence land had already been given to the AAI by the local military authorities. With the construction of the boundary wall by AAI, 13 acres of defence land on the Eastern side of the airport is getting isolated with no ingress or egress from any side and as such the civil administration must provide land along the proposed boundary wall for vehicular access into the 13 acres of defence land getting isolated because of handing over of 31.825 acres of defence land to the AAI.
14. This Court passed an order dated 26-11-2015 wherein it is stated:
"Towards our last order, Shri Sanjay Tyagi, Airport Director, Shillong has filed affidavit to inform that the possession of Defence land measuring 31.825 acres has already been taken. The affidavit is reproduced for ready reference as :
"2. That pursuant to the order dated 24.11.2015 passed by this Hon'ble Court, the officials of the survey department of the Government of Meghalaya on 24.11.2015 and 25.11.2015 carried out survey and demarcation of 31.825 acres of defence land Umroi Military Station adjacent to Shillong (Umroi) Airport for handing over the same to the Airports Authority of India for expansion of Shillong (Umroi) Airport. After survey and demarcation, a memorandum has been prepared which has been duly countersigned by the officials from the Local Military Authority, defence Estate Office, Survey Department of Government of Meghalaya, office of the Deputy Commissioner, Ri-Bhoi District as well as officials of Airports Authority of India.12
Thereafter, the Local Military Authorities have issued a letter granting no-objection for commencement of construction by the Airports Authority of India which states as follows :
"As per order of the Hon'ble Meghalaya High Court dated 19.11.2015 and integrated Headquarters of Ministry of Defence (Land Works (East) letter No. A/78818/Umroi Airport/LW(East) dated 20 November 2015, Military Authorities have no objection in commencement of construction on 31.825 acres of defence land by Airport Authority of India, as jointly surveyed on 25 November 2015, marked on the map attached and duly handed over to Airport Authority of India.
Sd/-
Hari B Pillai Brigadier Station Commander
3. That this affidavit is filed to bring on record the above in compliance of and pursuant to the order dated 24.11.2015 passed by this Hon'ble Court in the instant case".
Shri Tyagi also states that since the State PWD is already engaged in raising construction of boundary wall, they can construct the wall also on 31.825 acres of land and the Airport Authority will deposit the cost of construction in the accounts of State PWD by Monday (30.11.2015). As we have already made it amply clear in our earlier order that since this project has remained pending since 1960 with huge investment, any further delay may invite prosecution after fixing responsibility on the authority found to be responsible for impeding its progress.
Col. Ranjit Kumar has filed separate affidavit on behalf of the Chief of Army Staff informing that a joint survey has been conducted in respect of the land proposed to be given in exchange to the Defence land. Vide para 3 of the affidavit, it is also mentioned that upon handing over of 31.825 acres of Defence land to the Airport Authority, a piece of 13 acres of land has been rendered unfit for utilization in the absence of a road for egress and ingress to that place. Therefore, the State Government may be asked to provide some land for passage to that piece of land for proper utilization. Para 3 of the affidavit of Defence is reproduced as under :
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"3. That it is pertinent to mention herein that with the construction of boundary wall by Airport Authority of India, about 13 acres of defence land on the Eastern side of the Airport is getting isolated with no ingress or egress from any side. That as such it is submitted that the civil administration must provide land along the proposed Airport boundary for vehicular access into the 13 acres of defence land getting isolated because of handing over of 31.825 acres of defence land to the Airport Authority of India."
Shri K Paul, learned counsel for Defence also submits that since the land to be given in exchange to Defence has already been inspected jointly, let the process of handing over the land to the Defence be completed at the earliest. Shri K Paul also submitted that under Section 40 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the Deputy Commissioner can invoke urgency clause which is akin to Section 17(4) of the Land Acquisition Act, 1894."
15. For giving alternative land in lieu of the 31.825 acres of defence land handed over by the defence authorities to the AAI for expansion of Umroi Airport and also for providing ingress and egress to the said 13 acres of defence land on the Eastern side of the airport which would be isolated after construction of the boundary wall, the Deputy Commissioner, Ri-Bhoi District had taken necessary steps mentioned in the additional affidavit dated 09-12-2015 wherein it is stated:
"The Deputy Commissioner, Ri-Bhoi District has arranged for a joint inspection for ingress and egress defence land beyond the acquired land for the expansion of Umroi Airport on 09-12-2015 alongwith the (i) Director, Airport Authority of India, Umroi Airport, Shillong (ii) The Director of Land Records & Surveys, Meghalaya, Shillong and (iii) Shri. Ranjit Kumar Colonel, Administrative Commandant for Station Commander, Umroi Military Station, Pin-900203 / C/O 99 APO.14
That furthermore, that the Deputy Commissioner, Ri-Bhoi District vide letter No. DCRB(Misc)2/2015/Rev-II/30 Dated 2nd Dec 2015 had submitted the proposal for acquisition alongwith preliminary Notification of the land measuring 32 acres in lieu of the 32 acres defence land and sought for approval as required under section 40 of the Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement act, 2013."
16. The Deputy Commissioner, Ri-Bhoi District in her affidavit dated 09-12-2015 further stated:
"That accordingly vide letter No. RDA. 59/2015/47 Dt. 04.12.2015 the Joint Secretary to the Government of Meghalaya, Revenue and Disaster Management has accordingly granted approval for invoking of the emergency Clause U/S 40 of RFCT-LARR Act, 2015 in respect of 32 acres of land urgently required for implementation of Defence Zonal Plan of Umroi Military Station and requested to submit estimate for the project at the earliest.
That it is also submitted that after the identification and demarcation of the land of 32 acres of defence land and after the handing over of the said 32 acres of the Defence land to the Airport Authorities, the Airport Authorities has deposited an amount of Rs. 15.57 lakhs in addition to the earlier allotted amount of Rs. 94.93 lakhs to the PWD Authorities for construction of boundary walls. It is also pertinent to mention that the construction of the boundary walls is still in progress and the contractor has been directed to speed up the work for the construction of the walls and the progress of the work is also supervised and inspected constantly by the field Officers of PWD Department."
17. For the aforesaid reasoned orders in the given case, the Deputy Commissioner, Ri-Bhoi District shall take possession of the land to be offered to the Indian Army in lieu of the said 31.825 acres of defence land by invoking urgency clause of the 15 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and handover to the Defence Authority, Government of India within a period of 3(three) months from the date of passing this order. As there is no hindrance in completing the expansion and upgradation of the Umroi Airport for aircraft operation from Umroi Airport during bad weather and low visibility conditions by turbo-jet AB-321 aircrafts like Boeing, Airbus etc, the concerned authorities (Respondents) should complete the project as expeditiously as possible not later than 4(four) months from the date of passing this order. The progress of the project i.e. expansion of the Umroi Airport should be monitored by a Committee consisting of :-
1) Secretary of Defence/ His representative, Defence Ministry, Government of India. - Chairman
2) The Chief of Army Staff of the Indian Army/His representative, Government of India. - Member
3) Chief Secretary/ His representative, Government of Meghalaya. - Member
4) Secretary Revenue, Department of Revenue, Government of Meghalaya. - Convenor
5) Deputy Commissioner, Ri-Bhoi District, Nongpoh, Government of Meghalaya - Member
6) Airport Director (Shillong) Airport Authority of India. - Member 16
18. Further, it is made clear that if there be any hindrance in the progress of the project by any individual or authority, the Committee shall inform the Registry of this High Court so that the High Court may take appropriate proceedings by invoking writ jurisdiction or contempt proceedings against those who cause hindrance in the expansion work of Umroi Airport.
19. With the above directions, writ petition is disposed of with liberty to the Registry to bring to the notice of this court if there be any report of hindrance so submitted by the Committee aforesaid.
20. Registry is further directed to furnish the copy of this judgment and order to all the respondents within 48 (forty eight) hours.
JUDGE JUDGE CHIEF JUSTICE S.Rynjah