Madhya Pradesh High Court
Narmada Valley Development Authority ... vs Shashikant Patel on 6 April, 2017
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W.A. No.91/2017
6.4.2017
Shri Vivek Patwa, learned counsel for the appellants.
Shri Vivek Dalal, learned counsel for the respondent.
Heard on I.A. Nos.1275/2017, an application for dismissing office objection, I.A. Nos.946/2017, an application for condonation of delay as well as on the question of admission.
2. For the reason assigned in the application, I.A. Nos.1275/2017 is are allowed and we ignore the objection raised by the office.
3. The appeal is barred by one day.
4. For the reason assigned in the application, the cause shown by the appellants is sufficient to condone the delay in filing the writ appeal.
5. Accordingly, I.A. No.946/2017 is allowed. Delay in filing the writ appeal is hereby condoned.
6. For the sake of convenience, the facts are being taken from W.A. No.91/2017.
7. The respondent is owner of agricultural land bearing Survey No.229/2/2/1 admeasuring 0.871 hectare situated at village Balwada, Tehsil Badwaha, District Khargone. He filed a writ petition challenging the notification dated 21/01/2016 7 issued under the provisions of Madhya Pradesh Bhumigat Pipeline, Cable Evam Duct (Bhumi ke Upyokta Ke Adhikaran Ka Arjan) Adhiniyam, 2012(State Act of 2012). The said Act came into force w.e.f. 9/01/2013 with a sole purpose of acquisition of right of user for laying down underground pipelines, cable and duct for carrying out of water, gas, sewage industries vest or transmission of electricity and fiber ducts etc.
8. As per the State Act of 2012, the ownership remains with the original landowner and only limited right to use under earth of land has been acquired. Against the right to use the compensation as per per Section 8 and Rule 7 is provided and accordingly has to be given to the land owners. Section 10 further provides that the compensation against the loss due to subsequent repair or maintenance is with regard to standing crops etc.
9. The grievance of the respondent that the appellants are not paying compensation to the landowners keeping in view the provisions of Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013New Land Acquisition Act, 2013).
10. The contention of the learned counsel for the respondent before the learned writ court was that he is entitled for compensation under Right to Fair Compensation and 7 Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013. He further argued that the Act of 2012 of the State of M.P. is not included in 4 th Schedule and, therefore, the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 will be applicable and prayed for quashment of the Notification dated 21/01/2016.
11. The contention of the appellants before the learned writ court was that the respondent/landowner is entitled for compensation under the State Act of 2012 and not under the New Land Acquisition Act, 2013. The learned writ court considering the provisions of Section 105 of the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 came to the conclusion that the Act enacted by State Government i.e., State Act of 2012 does not find place under the 4 th 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 and allowed the writ petition by quashing the notification under the State Act of 2012.
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12. Shri Vivek Patwa, learned counsel for the appellants/State has submitted that the provisions of State Act of 2012 and Rules framed under Madhya Pradesh Bhumigat Pipeline, Cable Evam Duct (Bhumi Ke Upyokta ke Adhikaran ka Arjan) Niyam, 2013 will be applicable because the land of the respondent have not been acquired and only user right has been acquired and, therefore, compensation could not have been awarded in accordance with the provisions of New Land Acquisition Act, 2013. The learned writ court has committed illegal error in quashing the notification allowing the writ petition.
13. Per Contra, Shri Vivek Dalal, learned counsel for the respondent has submitted that after order dated 10/11/2016, the appellants/ authority started proceedings for acquisition of land under the New Land Acquisition Act, 2013 and notice to this effect was issued on 15/02/2017 by the Competent authority and Land Acquisition Officer (Revenue Badwah, District - Khargone) and prayed for dismissal of writ petition.
14. Notice issued on 15/02/2017 is relevant which reads as under :-
dzekad&-------316@Hkw&vtZu@2017 cMokg] fnukad 15@02@2017 lwpuk&i= ¼Hkwfe vtZu iquokZlu vkSj iuO;ZoLFkkiu esa mfpr izfrdj vkSj ikjnf'kZrk dk vf/kdkj vf/kfu;e]2013 dh /kkjk&81 ds varxZr½ 'k'khdkar firk Jhear] tkfr&ejkBk fuoklh&cyokMk 7 HkwfeLokeh ,rn~ }kjk lwfpr fd;k tkrk gS fd vkids LoRo ,oa LokfeRo dh xzke& cyokMk i-g-ua-&24] rglhy&cMokg] ftyk&[kjxksu ds losZ uEcj 299@2@2 dqy jdck 0-871 esa ls iSdh jdck 0-038 gs0 futh Hkwfe SueZnk&ekyok&xaHkhj fyad ifj;kstuk ds fy;s ty ifjogu gsrq Hkwfexr ikbZiykbZu] dscy ,oa MDV fcNkus ds dk;Z gsrq^^ ^e/;izns'k Hkwfexr ikbZiykbZu] dscy ,oa MDV ¼Hkwfe ds mi;ksDrk ds vf/kdkjksa dk vtZu½ vf/kfu;e]2012 ¼dzekad&5 lu~ 2013½ ds varxZr vf/kxzg.k dh dk;Zokgh dh xbZ Fkh] fdUrq ekuuh; mPp U;k;ky; [k.MihB bUnkSj }kjk fiVh'ku dzekad& 1548@2016 esa fnukad 10-11-2016 dks ikfjr vkns'kkuqlkj fuekZ.k foHkkx dk;Zikyu ;a=h] ueZnk fodkl laHkkx dzekad& 32] cMokg] ftyk& [kjxksu }kjk i= dzekad&323@dk;Z@Hkw&vtZu@2017] cMokg] fnukad 08-02-2017 ls ^^Hkwfe vtZu] iquokZlu vkSj iquO;ZoLFkkiu esa mfpr izfrdj vkSj ikjnf'kZrk dk vf/kdkj vf/kfu;e] 2013^^ dh /kkjk&81 ds varxZr mDr iz;kstu gsrw vLFkkbZ vf/kxzg.k dh dk;Zokgh fd;s tkus ckcr~ izLrko izLrqr fd;k x;k gSA vr% uohu Hkw&vtZu vf/kfu;e 2013 dh /kkjk 81¼2½ ds varxZr vkids LokfeRo dh mijksDr Hkwfe ij nksa o"kZ dh vof/k rd vf/kHkksx j[kus vkSj mldk mi;ksx djus ds fy;s rFkk mlesa ls yh tkus okyh lkefxz;ksa ¼;fn dksbZ gks½ ds fy;s vkidks lank; djus ;ksX; izfrdj dh jkf'k Hkwfe dk ewY; jkf'k :i;s 36081@& + $ ifjlaifRr;ksa dk ewY; jkf'k :i;s --------fujad $ Qjky gkfu dk nqxuk ewY; jkf'k :i;s 7024@& ¾ dqy jkf'k :i;s 43105@& ds fy;s vki ls fyf[kr djkj fu"iknu gsrq vki fnukad 22-02-2017 dks izkr% 11-00 cts bl dk;kZy; esa mifLFkr gksosA
15. Section 105 of Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 is relevant which reads as under :-
105. Provisions of this Act not to apply in certain cases or to apply with certain modification s.-(1)Subject to sub-section (3),the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2)Subject to sub-section (2)of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.
(3)The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the 7 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.
16. Considering the provisions of Section 105 of New Land Acquisition Act and Schedule - IV appended therein, we are of the view that the learned Writ Court has rightly held that the landowners are entitled for compensation under the provisions of New Land Acquisition Act 2013 .
17. Consequently, the appellants have started proceedings in the matter under the provisions of New Land Acquisition Act 2013, therefore, no case for any interference in the impugned order, as prayed is made out.
18. The writ appeal is accordingly dismissed.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
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