Madhya Pradesh High Court
Onkar vs The State Of Madhya Pradesh on 19 December, 2016
1
WP No. 2405 of 2016
19/12/2016
Shri Rohit Gupta learned counsel for petitioner.
Shri Sudhanshu Vyas learned counsel for respondents
No. 1 to 4.
Ms. Ishita Agrawal learned counsel for respondent no.5. Heard finally with consent.
This writ petition has been filed by petitioner challenging the notification dated 30 th September 2015 issued under the provisions of Madhya Pradesh Bhumigat Pipeline, Cable Avam Duct (Bhumi Ke Upyokta Ke Adhikaron Ka Arjan) Niyam, 2012.
Learned counsel for petitioner submits that same issue in respect of identical notification issued on 21/1/16 has been considered by this court and petitioners in those cases have been found to be entitled for compensation under the provisions of Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013. He further submits that this court has not found fit to quash the notification.
Counsel for respondents have not disputed the aforesaid aspect of the matter.
The Coordinate Bench of this court in the matter of Shashikant Patel Vs. State of MP & others in WP No. 1548/16 and other connected writ petitions vide order dated 10/11/16 has examined the same issue by holding as under:
In the present case, it is an undisputed fact that the State Government has issued a Notification which is on record as Annexure P/1 dt. 21/1/2016 in respect of the land of the petitioner. It is an undisputed fact that the State Government is laying underground pipeline cable duct over the 2 land of the petitioner. As per the stand of the State Government, the petitioner is entitled for compensation by taking into account the Rules of 2012.
Section 2 of the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 reads as under :
2. Application of Act. -(1)The provisions of this Act relating to land acquisition, compensation, rehabilitation and resettlement, shall apply, when the appropriate Government acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include the following purposes, namely:--
(a)for strategic purposes relating to naval, military, air force, and armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State police, safety of the people; or
(b) for infrastructure projects, which includes the following, namely:-- (i)all activities or items listed in the notification of the Government of India in the Department of Economic Affairs (Infrastructure Section) number 13/6/2009INF, dated the 27th March, 2012, excluding private hospitals, private educational institutions and private hotels;
(ii) projects involving agro-processing, supply of inputs to agriculture, warehousing, cold storage facilities, marketing infrastructure for agriculture and allied activities such as dairy, fisheries, and meat processing, set up or owned by the appropriate Government or by a farmers' cooperative or by an institution set up under a statute;
(iii) project for industrial corridors or mining activities, national investment and manufacturing zones, as designated in the National Manufacturing Policy;
(iv) project for water harvesting and water conservation structures, sanitation;
(v) project for Government administered, Government aided educational and research 3 schemes or institutions;
(vi) project for sports, health care, tourism, transportation or space programme;
(vii) any infrastructure facility as may be notified in this regard by the Central Government and after tabling of such notification in Parliament;
(c) project for project affected families;
(d) project for housing for such income groups, as may be specified from time to time by the appropriate Government;
(e) project for planned development or the improvement of village sites or any site in the urban areas or provision of land for residential purposes for the weaker sections in rural and urban areas;
(f) project for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by the Government, any local authority or a corporation owned or controlled by the State.
(2)The provisions of this Act relating to land acquisition, consent, compensation, rehabilitation and resettlement, shall also apply, when the appropriate Government acquires land for the following purposes, namely:-- (a)for public private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose as defined in subsection (1);
(b) for private companies for public purpose, as defined in sub-section (1):
Provided that in the case of acquisition for--
(i) private companies, the prior consent of at least eighty per cent, of those affected families, as defined in sub-clauses (i)and (v)of clause (c)of section 3; and
(ii) public private partnership projects, the prior consent of at least seventy per cent of those affected families, as defined in sub-clauses (i)and
(v)of clause (c)of section 3, shall be obtained through a process as may be prescribed by the appropriate Government:4
Provided further that the process of obtaining the consent shall be carried out along with the Social Impact Assessment study referred to in section 4:
Provided also that no land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law (including any order or judgment of a court which has become final) relating to land transfer, prevailing in such Scheduled Areas.
(3)The provisions relating to rehabilitation and resettlement under this Act shall apply in the cases where,--
(a)a private company purchases land, equal to or more than such limits in rural areas or urban areas, as may be prescribed by the appropriate Government, through private negotiations with the owner of the land in accordance with the provisions of section 46;
(b)a private company requests the appropriate Government for acquisition of a part of an area so prescribed for a public purpose:
Provided that where a private company requests the appropriate Government for partial acquisition of land for public purpose, then, the rehabilitation and resettlement entitlements under the Second Schedule shall be applicable for the entire area which includes the land purchased by the private company and acquired by the Government for the project as a whole.
Section 105 of the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 reads as under :
105. Provisions of this Act not to apply in certain cases or to apply with certain modifications.- (1) Subject to sub-section (3),the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2)Subject to sub-section (2)of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the 5 Fourth Schedule.
(3)The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4)A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament.
Schedule 4 appended to the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 reads as under :
THE FOURTH SCHEDULE (See section 105) LIST OF ENACTMENTS REGULATING LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT
1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958).
2. The Atomic Energy Act, 1962 (33 of 1962).
3. The Damodar Valley Corporation Act, 1948 6 (14 of 1948).
4. The Indian Tramways Act, 1886 (11 of 1886)
5. The Land Acquisition (Mines) Act, 1885 (18 of 1885).
6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978).
7. The National Highways Act, 1956 (48 of 1956).
8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962).
9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952).
10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948).
11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957).
12. The Electricity Act, 2003 (36 of 2003).
13. The Railways Act, 1989 (24 of 1989).
This Court in the light of the aforesaid is of the opinion that the Act enacted by the State Government ie., the Adhiniyam of 2012 does not find place under the Fourth Schedule and, therefore, if the land is being used or is being put on hold or is under the control of the Government, the State Government is under an obligation to pay compensation as per the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013. It is nobody's case that the land in question is not being used by the respondent. Not only this, the petitioner will not be able to construct anything over the land which is being used by the State Government by constructing ducts by laying underground cables and other things and, therefore, as the Act of 2012 does not finds place under the Fourth Schedule, the provisions of the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 are very much applicable in the peculiar facts and circumstances of the case.
7The another important aspect of the case is that under Fourth Schedule a similar act ie., The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962) finds place, meaning thereby, in those cases where the pipelines are being laid for the purposes of petroleum and for transporting other mineral which is in liquid / semi-liquid form, the Act of 2013 is not applicable only because the aforesaid Act finds place in the Fourth Schedule. The Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 is a statute enacted by the Parliament and will certainly supersede the Act framed by the State Government for laying the pipelines and, therefore, this Court is of the considered opinion that as the State Government is constructing ducts and using the land, the question of quashing the Notification at this juncture does not arise. However, the petitioners shall be entitled for compensation as per the statutory provision as contained under the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013.
With the aforesaid, the present Writ Petitions stand allowed. The exercise of granting compensation by calculating it by taking into account the Act of 2013 be concluded within a period of three months from the date of receipt of certified copy of this order."
Since the case of present petitioner is undisputedly identical, therefore, the present writ petition is disposed off by holding that the direction issued in the mater of Shashikant Patel (supra) will apply mutatis mutandis in the case of present petitioner also.
C.C. As per rules.
(PRAKASH SHRIVASTAVA) Judge BDJ