Andhra HC (Pre-Telangana)
State Of Andhra Pradesh, Rep. By ... vs Mummaneni Venkataramudu & Ors on 29 December, 2017
Bench: Ramesh Ranganathan, J.Uma Devi
HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND HONBLE MS. JUSTICE J.UMA DEVI
Writ Appeal No.933 of 2017
29-12-2017
State of Andhra Pradesh, rep. by Principal Secretary, Revenue (LA) Department, Velagapudi, Amaravathi, Guntur District & Ors
Mummaneni Venkataramudu & Ors..... Respondents
Counsel for Appellants: Learned Advocate-General for the
State of Andhra Pradesh
Counsel for respondents: Sri O.Manohar Reddy, Learned Counsel
<GIST:
>HEAD NOTE:
?Citations:
1.(1988) 4 SCC 534
2.(1992) 2 SCC 683
3.(2017) 7 SCC 729
4.AIR 1964 SC 1419
5.(2005) 6 SCC 138
6.(2000) 2 SCC 617
7.AIR 1987 SC 2235
8.AIR 1989 SC 1972
9. AIR 1999 SC 393
10. (1997) 1 SCC 134
11. (1985) 1 SCC 260
HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
HONBLE MS. JUSTICE J. UMA DEVI
WRIT APPEAL NO.933 OF 2017
JUDGMENT:(per Honble the Acting Chief Justice Ramesh Ranganathan) This appeal, under clause 15 of Letters Patent, is filed by the State Government aggrieved by the order of the Learned Single Judge in W.P. No.30383 of 2016 dated 01.06.2017. The respondents filed the Writ Petition seeking a mandamus to declare the notification issued by the Joint Collector-cum-Special Land Acquisition Officer, Anantapuram, under Section 11 and 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter called 2013 Act) published in Eenadu Daily dated 12.04.2016, and in Sakshi Daily dated 22.07.2016, in so far as the lands of the petitioners are concerned as illegal, arbitrary and without jurisdiction.
The respondents-writ petitioners are owners of land, admeasuring different extents, in Kammavaripally village, Puttaparthy Mandal, Ananthapuram District. A notification, under Section 11(1) of the 2013 Act, was published in Eenadu Daily dated 12.04.2016 wherein the names of the father and uncles of the respondents-writ petitioners, who were no more, are alleged to have been shown as the owners of the property. The subject land was sought to be acquired for the Handri Niva Sujala Sravanthi Project and the HNSS main canal. In the notification under Section 11(1), it is also stated that, in view of G.O.Ms. No.16 dated 29.01.2015, the provisions of Chapters II and III of the 2013 Act were inapplicable. The persons interested in the said land were directed to submit their objections within fifteen days from the date of the notification and, as the names of the petitioners were not mentioned, they did not submit any objections to the notification. Thereafter the third respondent issued a declaration under Section 19(1) of the 2013 Act which came to be published in Sakshi Daily dated 22.07.2016. Challenging the said notifications, issued under Section 11(1) and 19(1) of the 2013 Act, the respondents-writ petitioners invoked the jurisdiction of this Court. In the counter-affidavit, filed by them in the Writ Petition, the appellants herein had contended that, according to Section 6(2) of the 2013 Act and the Central Government Order No.J/12011/ 37/2011-SA-1 dated 20.12.2006, the provisions of Chapter-Il, and the social impact assessment study, are exempt for lands acquired for irrigation projects.
Before the Learned Single Judge, the respondent-writ petitioners contended that the Ordinance brought about certain changes to Chapters II and III of the 2013 Act, in respect of acquisition of land relating to five categories i.e., Defence, Rural Infrastructure, Affordable Housing for poor people, Industrial corridors and infrastructure projects including projects under public - private partnership, where the ownership of the land continued to vest with the Government as set out in Section 19(A)(1)(a) to (e) of the Ordinance; pursuant thereto, the 2015 amendment bill was introduced in the House of People, and the same was passed in the Lok Sabha on 10.03.2015; the bill could not be passed in the Rajya Sabha, and hence the Ordinance had lapsed; the President had again promulgated Ordinance 4 of 2015 on 03.04.2015 bringing about certain amendments to the Act; this Ordinance also ceased to operate and lapsed as it could not be passed in both Houses of Parliament; Ordinance 5 of 2015 came to be promulgated on 30.05.2015, but could not be passed in both Houses of Parliament and, as such, it lapsed by virtue of Article 123 of the Constitution of India; the rules, framed under G.O.Ms. No.16 dated 29.01.2015, also lapsed by virtue of the lapse of the Ordinance; in the absence of any social impact assessment study, as required under Sections 4, 5, 6 and 7 of the 2013 Act, the acquisition proceedings, based on such a notification, is illegal, improper and incorrect.
On the other hand it was contended on behalf of the Government, before the Learned Single Judge, that reference to G.O.Ms. No.16 dated 29.01.2015 in the notification was a mistake; that, by itself, did not make the notification illegal and incorrect; no prejudice was caused since the amount of compensation payable is that which is prevailing on the date of the notification; since the irrigation project was at the fag end of its execution, it would be put to further delay, if the plea of the petitioners is accepted; as per Section 6(2) of the 2013 Act, social impact assessment study is exempt for acquisitions made for irrigation projects, in view of Order No.J/12011/37/2011-SA-1 dated 20.12.2006; and, therefore, the plea that there was non- compliance of Sections 4, 5, 6 and 7 was incorrect.
On the question whether the Section 11(1) notification dated 11.04.2016, and the Section 19(1) notification dated 11.07.2016, were illegal, the Learned Single Judge held that the Section 11(1) notification showed that the subject land was sought to be acquired for a public purpose i.e., for the HNSS Main canal under the HNSS project; and as per G.O. No.16 dated 29.01.2015 the procedure contemplated under Chapters II and III of the 2013 Act was exempt; G.O.Ms.No.16 dated 29.01.2015 was issued pursuant to Ordinance 9 of 2014 amending the 2013 Act; the said notification exempted the authorities from certain provisions of Chapters II and III of the 2013 Act, in respect of certain projects; irrigation projects were reflected in the notification dated 11.07.2016; even if this notification is said to apply, it lapsed long prior to the date of its publication; and reference to a Government G.O. in the notification, based on an Ordinance which had lapsed, made the notification improper and incorrect, more so as the petitioners would be deprived of an opportunity of making an effective representation or to raise objections as required under the Act.
The Learned Single Judge further observed that the counter- affidavit was silent regarding reference to G.O.Ms.No.16 in the notification; consent may have been given by some of the ryots for acquisition of their lands; since the 2013 Act contemplates compliance of certain provisions, which are held mandatory, the respondents cannot be permitted to acquire the land of the petitioners without following the procedure contemplated under the 2013 Act, merely because neighbouring farmers had given their consent for acquisition of their lands; the preamble to the 2013 Act showed that it was intended to help persons who would be deprived of their land on account of land acquisition, and to protect the interests of effected persons on account of such acquisition; the addition of schemes for rehabilitation and resettlement, was mandatory; and the 2013 Act contemplated study of the social impact assessment as to whether the proposed acquisition serves a public purpose, estimation of affected families, and the study of social impact on the project.
On the contention that a social impact assessment was not necessary as the subject land was acquired for an irrigation project, and as assessment of environmental impact on the said project had already been made, the Learned Single Judge observed that the provisions of the 2013 Act, relating to social impact assessment, may not be necessary if there is an environmental impact assessment under the provisions of any other law for the time being in force in respect of irrigation projects; and the counter-affidavit, filed by the respondent, showed that the proviso to Section 6(2) of 2013 Act was complied with, in view of the circular issued by the Ministry of Environment and Forest, Delhi dated 20.12.2006, exempting social impact assessment study in respect of lands acquired for the HNSS irrigation project.
The Learned Single Judge observed that, though it had been averred in the counter-affidavit, the proceedings were not filed, and the contents thereof were not brought to the notice of the Court; the respondents had placed on record, a copy of the proceedings issued by the Ministry of Environment and Forest, Delhi dated 08.05.2006; this related to involvement of the HNSS project in Kurnool District; even assuming that the circular, referred to in the counter-affidavit, related to Anantapuram District where the subject lands, sought to be acquired, are located, the circular dated 08.05.2006 gave exemption, from application of Chapters II and III, only for a period of five years from the date of issuance of the said letter; the letters, referred to in the counter-affidavit, were issued in the year 2006; even if the letter dated 08.05.2006 was taken into consideration, it would be valid for a period of five years, from the date of issuance, which expired in 2011; the impugned notification, in the instant case, was issued in April, 2016; the letter which was pressed into service to contend that social impact assessment was not necessary, and the provisions of Chapters II and III of the 2013 Act were exempted from application in cases where acquisition was for irrigation projects; and these contentions could not be accepted. The Learned Single Judge opined that the impugned notifications, in respect of acquisition of lands of the petitioners under Sections 11 and 19 of the 2013 Act, were contrary to the provisions of the said Act. While allowing the Writ Petition, the Learned Single Judge granted liberty to the respondent authorities to take steps for acquisition of the subject land by following the due process of law.
Elaborate oral submissions were put forth, and written arguments were filed, on behalf of the appellants, by the Learned Advocate-General for the State of Andhra Pradesh, and on behalf of the respondents-writ petitioners by Sri O.Manohar Reddy, Learned Counsel appearing on their behalf. It is convenient to examine the rival submissions, of the Learned Advocate-General on the one hand and Sri O.Manohar Reddy, Learned Counsel, on the other, under different heads.
I. IS THE HANDRI NEEVA SUJALA SHRAVANTI PROJECT EXEMPT FROM A SOCIAL IMPACT ASSESSMENT STUDY?
Learned Advocate General for the State of Andhra Pradesh would submit that the proviso to Section 6(2) of the 2013 Act exempts irrigation projects from social impact assessment, if there is an environmental impact assessment (EIA) under the provisions of any other law; the Handri Neeva Sujala Shravanti (HNSS) Project was granted environmental clearance (EC), under the 1994 Environmental Impact Assessment Notification for the four districts of Kurnool, Ananthapur, Kadapa and Chittoor, vide Government of India letter dated 08.05.2006; para 12 of the 2006 EIA Notification is the savings clause which protects all actions taken under the 1994 EIA Notification; it mandates continuation of things done under the 1994 EIA 1994 Notification till the final publication of the 2006 EIA Notification i.e on 14th September, 2006; since environmental clearance was granted to the HNSS project on 08.05.2006, environmental clearance would remain valid even after the 2006 EIA notification came into force; and once environmental clearance has been obtained for the HNSS Project, there is no need to conduct a social impact assessment study.
On the other hand Sri O. Manohar Reddy, Learned Counsel for the respondentswrit petitioners, would submit that, before reliance can be placed on the proviso to Section 6(2) of the Act, the burden is on the State to show that environmental impact assessment is required under the provisions of any other law for the time being in force; the provisions of the 2013 Act came into force on 01.01.2014; prior thereto, the provisions of the Land Acquisition Act, 1894 were applicable which neither provided for a social impact assessment study to be conducted nor for rehabilitation and resettlement; for the first time these conditions were incorporated in the 2013 Act; the words Law for the time being in force, as used in the proviso to Section 6(2), refers to the law applicable on the date when the enactment came into force i.e., 01.01.2014; the proviso to Section 6(2) has to be so interpreted as to mean that the law in force, as on 01.01.2014, alone would govern such acquisition; consequent upon the 2006 EIA notification coming into force on 14.09.2006, the earlier notification dated 27.01.1994 stood superseded; the savings is only to the extent of things done, or omitted to be done, before such supersession; in the present case environmental clearance, given on 08.05.2006, was the only thing done till that date i.e 14.09.2006; it was obligatory, therefore, for the appellant to secure permission under the 2006 EIA notification; there is no evidence on record to show that the State had commenced construction, prior to the 2006 EIA notification coming into force on 14.09.2006, and after environmental clearance was granted on 08.05.2006; and, in the absence of proof of things having been done prior to the supersession of the 1994 EIA Notification by the 2006 EIA Notification, the State cannot rely on the Government of India proceedings dated 08.05.2006 which was issued under the old 1994 EIA notification.
The 2013 Act came into force on 01.01.2014. Chapter-II of the 2013 Act relates to determination of social impact and public purpose. Section 4 relates to Preparation of Social Impact Assessment Study, and sub-section (1) thereof stipulates that, whenever the appropriate Government intends to acquire land for a public purpose, it shall consult the concerned Panchayat, Municipality or Municipal Corporation, as the case may be, at the village level or ward level, in the affected area and carry out a social impact assessment study in consultation with them, in such manner and from such date as may be specified by such Government by notification. Section 5 relates to public hearing for social impact assessment and provided that, whenever social impact assessment was required to be prepared under Section 4, the appropriate Government shall ensure that a public hearing is held at the affected area, after giving adequate publicity about the date, time and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the social impact assessment report.
Section 6 of the 2013 Act relates to Publication of Social Impact Assessment Study, and sub-section (1) thereof provides that the appropriate government shall ensure that the social impact assessment study report, and the social impact management plan, referred to in Section 4 are prepared and made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate government. Section 6 (2) stipulates that, whenever environment impact assessment is carried out, a copy of the social impact assessment report shall be made available to the impact assessment agency authorized by the Central Government to carry out environmental impact assessment. Under the proviso thereto, in respect of irrigation projects where the process of Environment Impact Assessment is required under the provisions of any other law for the time being in force, the provisions of the 2013 Act, relating to social impact assessment, shall not apply. If the provisions of any other law, for the time being in force, require the process of environment impact assessment, then the State is discharged of its obligation of complying with Sections 4 to 6 of the 2013 Act relating to social impact assessment.
As reliance is placed by the Learned Advocate-General on the 1994 EIA notification to contend that the State is exempt, in terms of the proviso to Section 6(2), from applying the provisions of the 2013 Act relating to social impact assessment, it is necessary to briefly refer to the statutory provisions under which EIA notifications are issued. Section 3 of the Environment Protection Act, 1986 (hereinafter called the 1986 Act) confers power on the Central Government to take measures to protect and improve the environment. Section 3(1) stipulates that, subject to the provisions of the 1986 Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Section 3(2)(v) stipulates that, in particular and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the restriction of areas, in which any industries, operations or processes or class of industries, operations or processes shall not be carried out, or shall be carried out subject to certain safeguards. Section 6(1) enables the Central Government, by notification in the official gazette, to make rules in respect of all or any of the matters referred to in Section 3. Section 25(1) of the Act enables the Central Government, by notification in the official gazette, to make rules for carrying out the purposes of the Act.
In the exercise of the powers conferred by Sections 6 and 25 of the 1986 Act, the Central Government made the Environment Protection Rules, 1986 (hereinafter called the 1986 Rules). Rule 5 relates to prohibition and restriction on the location of industries, and carrying on of processes and operations in different areas. Rule 5(3)(a) stipulates that, whenever it appears to the Central Government that it is expedient to impose prohibition or restriction on the location of an industry or carrying on of processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as it may deem necessary from time to time, give notice of its intention to do so. Rule 5(3)(b) requires every notification, under clause (a), to give a brief description of the area, the industries, operations, processes in that area about which such notification pertains, and to also specify the reasons for the imposition of prohibition or restriction on the location of the industries, and carrying on of processes or operations in that area. Rule 5(3)(c) enables any person, interested in filing an objection against the imposition of prohibition or restriction on carrying on of processes or operations as notified under clause (a), to do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette. Rule 5(3)(d) requires the Central Government, within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette, to consider all the objections received against such notification, and enables it, within 365 days from the date of such publication, to impose prohibition or restriction on the location of such industries, and carrying on of any process or operation in an area.
In the exercise of the powers conferred by Section 3(1) and 3(2)(v) of the 1986 Act, and Rule 5(3)(d) of the 1986 Rules, the Central Government directed that, on and from the date of publication of the notification in S.O. 60(E) dated 27.01.1994 in the Official Gazette, expansion or modernization of any activity or new project, listed in Schedule I of the notification, shall be undertaken in any part of India only after prior environmental clearance is obtained from the Central Government in accordance with the procedure specified in the notification. Para-2 (I) of the notification dated 27.1.1994 (as amended on 4.5.1994) details the requirement and procedure for seeking environmental clearance of projects. Para-2 (II) (c) relates to hydro-power and major irrigation projects and/or their combination, including flood control, and requires the project authorities to intimate location of the project site, to the Central Government in the Ministry of Environment and Forests, while initiating any investigation and survey; for the Central Government to convey their decision regarding suitability or otherwise of the proposed site within a maximum period of 30 days; and for site clearance to be granted for a sanctioned capacity, and to be valid for a period of five years for commencing construction, operation or mining. Paragraph-III of the said Notification also stipulates that the clearance, which is granted, shall be valid for a period of five years for commencement of construction or operation.
In the exercise of the powers conferred by Section 3(1) and Section 3(2)(v) of the 1986 Act, read with Rule 5 (3)(d) of the 1986 Rules, and in supersession of the 1994 EIA notification dated 27.01.1994 except in respect of things done or omitted to be done before such supersession, the Central Government issued the 2006 EIA Notification in S.O. 1533 (E) dated 14.9.2006 directing that, on and from the date of publication of the notification, construction of new projects or activities, or the expansion or modernization of existing projects or the activities listed in the Schedule to the Notification, entailing capacity addition with change in process and technology, shall be undertaken only after prior environmental clearance from the Central Government in accordance with the procedure specified in the notification.
Para-2 of the said notification dated 14.09.2006 specifies the requirement of prior Environmental Clearance, and stipulates that projects or activities, falling under category-A of the Schedule, shall require prior environmental clearance from the concerned regulatory authority, before any construction work, or preparation of land, by the project management, except for securing the land, is started on the project or activity. Para-2 (i) refers to all new projects or activities listed in the Schedule to the Notification. Sl.No.1 (c) of the Schedule lists the projects or activities requiring prior environmental clearance, and at Sl. No.1 (c) are listed River Valley Projects of (i) more than 50 MW hydro electric power generation and (ii) more than 10,000 hectares of culturable command area, which are categorised as Category-A projects requiring prior environmental clearance from the Central Government. Para-4 (ii) of the EIA 2006 Notification dated 14.09.2006 stipulates that all Category-A projects included in the Schedule, including expansion and modernization of the existing projects or activities, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of the Notification.
Para 6 of the EIA 2006 notification dated 14.09.2006 relates to the application for prior environmental clearance, and stipulates that an application seeking prior environmental clearance shall, in all cases, be made by the project proponent in the prescribed Form 1 and Supplementary Form 1A if applicable, as given in Appendix II, after the identification of the prospective sites for the project and/or activities to which the application relates. The project proponent is required to furnish, along with the application, a copy of the pre-feasibility project report, in addition to Form 1, Form 1A, and Form 1M. Para 7 prescribes four stages in the Prior Environmental Clearance process for New Projects. While Stage 1 relates to Screening, Stage 2 relates to Scoping, Stage 3 to Public Consultation, and Stage 4 to Appraisal.
Para 12 of the 2006 EIA notification relates to operation of the 1994 EIA Notification till the disposal of pending cases. It is stipulated therein that, from the date of final publication of the 2006 EIA notification, the earlier EIA notification No.S.O.60 (E) dated 27.01.1994 stood superseded except in suppression of things done, or omitted to be done before such supersession, to the extent that, in case of all or some types of applications made for prior environmental clearance and pending on the date of final publication of the notification, the Central Government may relax anyone or all the provisions of the notification except the list of the projects or activities requiring prior environmental clearance as specified in the Schedule, or to continue operation of some or all provisions of the said notification for a period not exceeding twenty four months from the date of issue of the notification. It is not in dispute that the conditions stipulated in the 2006 Environmental notification dated 14.09.2006 have not been fulfilled in the present case, and it is only if the appellant falls within the excepted ambit of the 1994 EIA Notification dated 27.01.1994, can they claim not to fall within the scope of the 2006 EIA Notification, since the 2006 EIA notification explicitly supersedes the earlier 1994 EIA notification, except in respect of things done before such supersession.
In terms of Para 12 of the 2006 EIA notification, anything done under the 1994 EIA notification, prior to the date of final publication of 2006 EIA notification, would be governed by the 1994 EIA notification, and not the 2006 EIA notification. As grant of environmental clearance, by the Government of India on 08.05.2006, was prior to the EIA 2006 notification having been issued in S.O.1533 (E) dated 14.09.2006, it is evident that the provisions of the 2006 EIA notification would not apply to matters covered by the said environment clearance granted to the HNSS project.
The site clearance, referred to in Para-2 (II) of the 1994 EIA Notification is the environmental clearance granted for the sanctioned capacity of hydro-power and major irrigation projects, which is to be valid for a period of five years for commencement of construction. The time limit of five years is for commencement of construction of the project, and does not relate to the period of its validity. Construction of the project should have commenced within five years from the date on which environmental clearance was granted for the project, and it is not necessary that it should have been completed within the said period of five years. As the appellant had been granted environmental clearance in terms of the 1994 EIA notification dated 27.01.1994, if they had commenced construction of the project within five years from 08.05.2006, when environmental clearance was granted, they would, in view of the stipulation except in respect of things done before such supersession in the 2006 EIA notification dated 14.09.2006, not fall within the ambit of the 2006 EIA notification.
Both the EIA 1994 and the EIA 2006 notifications are statutory notifications issued by the Central Government in the exercise of the powers conferred on it by Section 3(1) and 3(2)(v) of the 1986 Act r/w. Rule 5(3)(d) of the 1986 Rules. The HNSS project, for which the subject lands are being acquired, is undoubtedly an irrigation project for which Environment Impact Assessment is required under the provisions of the 1986 Act and the 1986 Rules (which constitute law). Both the 1986 Act and the 1986 Rules, which are undoubtedly laws, continue to remain in force even after 01.01.2014, on which date the 2013 Act came into force. Reference in the proviso to Section 6(2) of the 2013 Act, to the provisions of any other law for the time being in force, can only mean the provisions of the 1986 Act and the 1986 Rules, for it is in exercise of the powers conferred under these laws that the process of environmental impact assessment has been prescribed by way of both the EIA-1994 and the EIA-2006 notifications. Reference to the provisions of any other law for the time being in force, in the proviso to Section 6(2) of the 2013 Act, is to the 1986 Act and the 1986 Rules, and not to the EIA notifications issued thereunder.
As noted hereinabove, Para 2(II) of the 1994 EIA notification stipulates five years as the period of validity of site clearance for commencement of construction. As the GOI letter dated 08.05.2006 was issued by the Central Government under the 1994 EIA notification, prior to the 2006 EIA notification coming into force on 14.09.2006, construction of the HNSS project should have commenced on or before 07.05.2011 ( i.e within the five year period stipulated in the GOI letter dated 08.05.2006). As the 2006 EIA notification supersedes the 1994 EIA notification except in respect of things done before such supersession, the environmental clearance, granted by the Government of India on 08.05.2006, is a thing done before the 2006 EIA notification came into force; and, consequently, the requirement of commencement of construction of the project is in terms of the letter of environmental clearance dated 08.05.2006.
The contention that construction of the HNSS project should also have commenced before 14.09.2006 (when the 2006 EIA notification came into force) does not merit acceptance. Accepting such a submission would render the very prescription of five years for commencement of construction of the irrigation project, both under the 1994 EIA notification, and the environmental clearance letter of the Government of India dated 08.05.2006, redundant, since the five year period for commencement of construction, as stipulated in the 1994 EIA notification and the letter dated 08.05.2006, would not be available, even though just a little more than four months had elapsed by the time the 2006 EIA notification was issued on 14.09.2006. It is evident, therefore, that if construction of the HNSS project had commenced within five years from the date on which environmental clearance was granted i.e. 08.05.2006, it would fall outside the ambit of the 2006 EIA notification, and it is not necessary that the State Government should have actually commenced construction of the HNSS project, before 14.09.2006 when the 2006 EIA notification came into force.
What, however, remains to be considered is whether or not construction of HNSS project commenced before 07.05.2011 (i.e within five years from 08.05.2006), and whether the conditions, subject to which environmental clearance was granted by the Central Government, vide its letter dated 08.05.2006, have been complied with. If acquisition of the subject land falls within the scope of the HNSS project for which environmental clearance was granted by letter dated 08.05.2006, and the appellants had commenced construction, in terms of the letter dated 08.05.2006, on or before 07.05.2011, then the appellant cannot be said to have committed any illegality in acquiring the subject lands, without complying with the conditions, stipulated in the 2013 Act, of a social impact assessment being made.
In support of his submission that construction of the HNSS project commenced well within the five year period stipulated in the letter of the Government of India dated 08.05.2006, Learned Advocate-General would place reliance on G.O.Ms.No.186 dated 15.10.2005. The said G.O records that the State Government had accorded administrative sanction vide G.O. 73 I&CAD dated 24.07.2005 for Rs.1305 crores for the H.N.S.S. Project Phase-I to provide irrigation facilities to 1.98 Lakh Acres in Kurnool and Ananthapur Districts, in addition to providing drinking water facilities to a population of about 10 lakhs people; thereafter the Engineer-in-Chief had submitted proposals for according administrative approval for Rs.2160 crores which included land acquisition, and also for excavation of the balance length of the H.N.S.S. Canal from Km 216 to Km 565, and formation of five reservoirs at Gollapalli, Marala, Cherlopalli in Ananthapur District, Srinivasapuram Reservoir in Kadapa District and Adavipalli reservoir in Chittoor District, to provide irrigation facilities to 4.045 Lakh Acres in Kadapa, Ananthapur, Kurnool and Chittoor Districts of Rayalaseema, and to provide drinking water to a population of 23 Lakhs; and the Government was, therefore, according administrative sanction for Rs.1,880 crores vide G.O.Ms. No.186 dated 15.10.2005.
Reference is also made by the Learned Advocate-General to the agreement, entered into between the Superintending Engineer, Irrigation CM&CD with M/s. Hindustan Ratna (Joint Venture), on 05.02.2007 for investigation, preparation of HPs, design, excavation, construction of CM&CD works of the HNSS main canal from Km 340 to Km 360 excluding the tunnel from Km 358 to Km 360 under the HNSS Phase II in Anantapur District. While G.O.Ms.No.186 dated 15.10.2005 relates to administrative sanction, the agreement dated 05.02.2007 is, among others, for construction of certain works. Neither of them disclose the actual date of commencement of construction.
While these facts have not been stated, in the counter- affidavit filed before the Learned Single Judge, the fact also remains that the Learned Single Judge has proceeded on the erroneous premise that the environmental clearance, granted vide letter dated 08.05.2006, is valid only for a period of five years and expired in the year 2011. It would not be appropriate for us to examine these factual aspects in an intra-Court appeal under Clause 15 of the Letters Patent. What course we should, therefore, adopt shall be detailed hereinafter.
II. SECTION 107 OF THE 2013 ACT : ITS SCOPE:
Sri O. Manohar Reddy, Learned Counsel appearing on behalf of the respondent-writ petitioner, would submit that Section 107 of the 2013 Act empowers the State legislature to enact a law more beneficial to the affected families; from a reading of the provisions of the 2013 Act, it is clear that the State must provide benefits, to the persons affected under the acquisition, which are more beneficial than those provided under the environmental impact assessment law; in the proceedings, issued by the Central Government dated 08.05.2006, it is mentioned that the Rehabilitation and Resettlement package of the year 2005 would be applicable; and for lands acquired in the year 2016, the Rehabilitation and Resettlement package of the year 2005 cannot be made applicable.
Section 107 of the 2013 Act confers power on the State Legislature to enact a law more beneficial to affected families, and thereunder nothing in the 2013 Act shall prevent any State from enacting any law to enhance or add to the entitlements enumerated under the 2013 Act which confer higher compensation than payable under the said Act, or to make provisions for rehabilitation and resettlement which is more beneficial than that provided under the 2013 Act. Section 107 has no application to the facts of the present case, in as much as it is not even the case of the respondents-writ petitioners that the A.P. State Legislature has enacted any such law.
Unlike the 2013 Act which contains specific provisions for rehabilitation and resettlement of affected families, and requires the Collector to pass a rehabilitation and resettlement Award under Section 31 thereof, along with the Award made under Section 23 of the said Act, the 1894 Land Acquisition Act did not contain any provision for rehabilitation and resettlement of families affected by the Land Acquisition. When environmental clearance was given to the HNSS project by the Central Government, by its letter dated 08.05.2006, it was the 1894 Act which was in force, and there was no law which provided for the rehabilitation and resettlement of families affected by the Land Acquisition. As the Government of Andhra Pradesh had framed a rehabilitation and resettlement policy in the year 2005, the letter of the Government of India dated 08.05.2006, (whereby environmental clearance was granted), refers to the said 2005 R&R policy.
That does not, however, mean that, even after the 2013 Act came into force on 01.01.2014, families, affected by the Land Acquisition proceedings initiated on or after 01.01.2014, would still be required to be paid only the rehabilitation and resettlement package under the 2005 R&R policy of the Government of A.P. While all the provisions of the 2013 Act including the provisions relating to rehabilitation and resettlement would apply, it is only because of the proviso to Section 6(2) of the 2013 Act that the provisions of the 2013 Act, relating to social impact assessment, are not applicable with respect to irrigation projects where the process of environmental impact assessment is required under the provisions of any other law for the time being in force. Suffice it to make it clear that, notwithstanding reference in the GOI letter dated 08.05.2006 that the rehabilitation and resettlement package of the year 2005 would apply, the provisions of the 2013 Act, relating to rehabilitation and resettlement, would apply to land acquisition proceedings for which a preliminary notification, under Section 11(1) of the 2013 Act, has been issued on or after 01.01.2014 when the 2013 Act came into force.
III. CAN THE PROVISO TO SECTION 6(2) OF 2013 ACT BE UNDERSTOOD AS DISCRIMINATING BETWEEN IRRIGATION AND OTHER PROJECTS?
Sri O. Manohar Reddy, Learned Counsel for the respondents writ petitioners, would submit that the State cannot rely on the environmental clearance granted in the year 2006, for acquisition of lands in the year 2016, as affected persons would be deprived of the benefits provided under Chapters-Il and III of the 2013 Act; if the argument of the State is accepted then acquisition of lands, for purposes other than irrigation, would require a higher compensation to be paid and better rehabilitation and resettlement measures to be provided, whereas affected families, whose lands are acquired for irrigation purposes, would be paid lesser compensation; and it was never the intention of Parliament to discriminate between land losers depending upon the purpose for which the land is acquired.
What is exempted by the proviso to Section 6(2) of the 2013 Act is the application of the provisions of the 2013 Act, regarding social impact assessment, to irrigation projects. Land acquisition for irrigation projects, considering the larger public interest involved in its establishment (which is to provide irrigation and drinking water facilities to people in need), are not required to be preceded by a social impact assessment as prescribed in Chapter-II of the 2013 Act. While the legislature has, no doubt, exempted irrigation projects from the provisions of the 2013 Act regarding social impact assessment, that would not result in higher compensation being paid, and better resettlement measures to be provided, for other projects as compared to irrigation projects. It is only the provisions of social impact assessment which have been exempted, and not the provisions relating to rehabilitation and resettlement of families affected by the irrigation projects. Even for irrigation projects, awards both under Section 23 and Section 31 of the 2013 Act are required to be passed. If construction of the HNSS project had commenced before 07.05.2011, (ie within five years from the date of grant of environmental clearance on 08.05.2006), the said environmental clearance would continue to remains valid even if a small part of the project, as is covered by the GOI letter dated 08.05.2006, has not completed even as on date. As the monetary benefits which affected families, under the 2013 Act, are entitled to is the same for lands acquired, both for irrigation and other projects, the plea of discrimination necessitates rejection.
IV. HAS THE GOVERNMENT FAILED TO DISCHARGE THE BURDEN TO SUSTAIN THE PRELIMINARY NOTIFICATION ISSUED UNDER SECTION 11(1) OF THE 2013 ACT?
Sri O. Manohar Reddy, Learned Counsel for the respondents writ petitioners, would submit that the burden lies heavily on the State to sustain the preliminary notification issued under Section 11(1) of the 2013 Act; in the counter-affidavit, a plea was taken that, by virtue of Section 6(2) of the 2013 Act, the provisions of the 2013 Act would not apply; it is in fact the proviso to Section 6(2) which is applicable; the burden lies heavily on the State to show that environment impact assessment is required under the provisions of any other law for time being in force; in the counter-affidavit nothing has been stated regarding any other provision of law for the time being in force which requires an environment impact assessment; a copy of the environment impact assessment report has not been filed; only a copy of the environment clearance letter dated 08.05.2006 was filed, that too at the time of arguments in the Writ Petition; the counter-affidavit neither contains details nor is there any explanation regarding applicability of these proceedings in respect of the lands proposed to be acquired; though the learned Single Judge has made certain observations with regards the said plea, the same was not explained even in the Writ Appeal; on the other hand in the affidavit, filed in support of the application seeking interim stay of the order of the Learned Single Judge, the Joint Collector-cum- Special Land Acquisition Officer has extracted the order of the learned Single Judge in para 7 of the affidavit, and in para 8 it is stated that environmental impact assessment was conducted and completed by the Agricultural Finance Corporation Limited (AFC), Hyderabad; and hence the provisions of Chapter-II, and the social impact assessment study is exempt for acquisition of land for irrigation projects; there is no plea as to how the proviso to Section 6(2) of the Act is applicable with respect to the proposed acquisition; in the light of the judgment of the Supreme Court, in Bharat Singh v. State of Haryana , the State cannot be permitted to raise a new plea; there is neither any plea, nor has any evidence been annexed to the counter-affidavit, to sustain the defence taken by the State; and it has also not been explained how the said proceedings, and the exemption granted in the proviso to Section 6(2) of the Act, are applicable.
In Bharat Singh1, the petitioners had challenged the validity of acquisition of their land by the State of Haryana, under the Land Acquisition Act, 1894, for the development and utilisation of land for industrial purposes. It was contended before the Supreme Court, on behalf of the petitioners, that the sole purpose of acquisition was a profiteering venture of the Government to acquire land of farmers at a nominal price, and to resell the same at a higher profit. It is in this context that the Supreme Court observed:
.The "public purpose" in question, already noticed, is development and industrialisation of the acquired land. The appellants have not challenged the said "public purpose". In the absence of any such challenge, it does not lie in the mouth of the appellants to contend that the acquisition was merely a profiteering venture by the State Government through HUDA. The appellants will be awarded the market value of the land as compensation by the Collector. If they are dissatisfied with the award they may ask for references to the District Judge under Section 18 of the Act. If they are still aggrieved, they can file appeals to the High Court and, ultimately, may also come to this Court regarding the amount of compensation. The appellants cannot claim compensation beyond the market value of the land. In such circumstances, we fail to understand how does the question of profiteering come in. Even assuming that HUDA has made some profit, that will not in any way affect the public purpose for which the land was acquired and the acquisition will not be liable for any challenge on that ground.
As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter, affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us PG NO 1060 by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.. (emphasis supplied).
Before examining the contentions under this head, it is useful to refer to the contents of the GOI letter dated 08.05.2006, a copy of which was placed before the Learned Single Judge, and has been noted in the order under appeal. The Additional Director, Ministry of Environment and Forest, Government of India, informed the Secretary, Irrigation I&CAD Department, Govt. of A.P vide letter dated 08.05.2006, that environmental clearance was being accorded as per the provisions of the 1994 EIA notification subject to strict compliance of the terms and conditions mentioned therein. The said letter dated 08.05.2006 records that the proposed lift irrigation project envisaged lifting of water from the Krishna river for providing irrigation and drinking water supply to the chronically drought affected upland areas of the four districts of Rayalaseema region i.e Kurnool, Anantapur, Kadapa and Chittoor Districts in Andhra Pradesh; public hearings were conducted in these four Districts on 13.02.2006; and the total cost of the project was 236.56 crores. While the subject cited, in the said letter dated 08.05.2006, no doubt refers only to Kurnool District, the body of the said letter dated 08.05.2006 records the project having been envisaged for providing irrigation and drinking water to the upland areas of the four Districts of Rayalaseema i.e Kurnool, Anantapur, Kadapa and Chittoor.
The environmental clearance, granted by the Government of India on 08.05.2006, is subject to the specific conditions mentioned in Part-A, and the general conditions specified in Part-B thereof. Clause (6) of the Part-B stipulates that, in case of change in the scope of the project, the project would require a fresh appraisal. Clause (8) stipulates that the clearance letter is valid for a period of five years, from the date of issue of the letter, for commencement of construction work. Clause (8) of the letter dated 08.05.2006, in accordance with the 1994 EIA Notification, makes the environmental clearance valid for a period of five years for commencing construction, operation and maintenance. Para 3(c) of the 1994 EIA Notification dated 27.01.1994 also stipulated that the environmental clearance, granted by the Central Government, was valid for a period of five years for commencement of construction or operation.
In terms of the conditions stipulated in the environmental clearance letter dated 08.05.2006, construction of the HNSS project was required to be commenced within five years therefrom i.e. on or before 07.05.2011. Further, in terms of Condition No.6 of Part-B of the general conditions of the environmental clearance letter dated 08.05.2006, in case of change in the scope of project, the project would require a fresh appraisal. The State Government is, therefore, not only required to satisfy that they had commenced construction of the HNSS project on or before 07.05.2011, but also that the subject lands, which are now sought to be acquired for the purpose of the project, fall within the scope of the project for which environmental clearance was granted on 08.05.2006. It is only if the subject land falls within the scope of project for which environmental clearance was granted, would the appellant be protected by the 1994 EIA Notification. Otherwise, a fresh appraisal would be required in terms of Condition No.6 in Part-B of the letter dated 08.05.2006, which would then bring the change, in the scope of the project, within the ambit of the 2006 EIA notification requiring fresh appraisal in terms thereof.
While the appellants herein have pleaded that the provisions of the 2013 Act would not apply in view of Section 6(2) of the 2013 Act, none of the other facts, as referred to hereinabove, have been specifically pleaded in the counter-affidavit filed by them in the Writ Petition. In the order under appeal, the Learned Single Judge has proceeded on the premise that environmental clearance granted, vide letter dated 08.05.2006, is valid only for a period of five years; and expired in the year 2011. As noted hereinabove, the five year period stipulated, in the environmental clearance granted by the Government of India on 08.05.2006, is for commencement of construction, and does not relate to the period for which the said environmental clearance is valid. While the appellants ought to have stated all these facts in the counter-affidavit, should the failure of certain government officials to be more vigilant, and their negligence in referring to all these facts in the counter-affidavit, by itself result in the proceedings, for acquisition of land for construction of a project of public importance, be set aside? We are satisfied, for reasons to be detailed hereinafter, that the appellants should not be non-suited on this ground alone and, instead, the State Government should be directed to identify these officials who have been negligent in not placing all these facts before this Court, and take action against them in accordance with law.
V. IS THE NOTIFICATION ISSUED UNDER SECTION 11(1) OF THE 2013 ACT VALID?
Sri O.Manohar Reddy, Learned Counsel for the respondents- writ petitioners, would submit that, in the preliminary notification issued by the Joint Collector under Section 11(1) of the 2013 Act, it was specifically mentioned that the provisions of Chapters-II and III of the Act were not applicable in respect of this acquisition as it was exempt vide GOMS.No.16 dated 29.01.2015; and once a notification is issued on a particular ground and, if it is found that the said exercise of power itself is illegal, the entire notification is liable to be quashed. On the other hand the Learned Advocate General for the State of Andhra Pradesh would submit that the notification, issued under Section 11(1) of the 2013 Act, was valid as it was issued in accordance with the procedure laid down in the 2013 Act.
An erroneous reference is made, to G.O.Ms. No.16 dated 29.01.2015, in the preliminary notification issued under Section 11(1) of the 2013 Act, with regards the provisions of Chapter II and III of the Act not being applicable in respect of the subject acquisition. In case the provisions of Chapter II of the 2013 Act are held applicable then, notwithstanding a reference to the contrary in the preliminary notification issued under Section 11(1) of the 2013 Act, the State Government would have been obligated to comply with these provisions. The fact, however, remains that the provisions of the 2013 Act, relating to social impact assessment, are not applicable to the subject irrigation project in view of the proviso to Section 6(2) of the 2013 Act, since a process of environment impact assessment has been provided under the 1994 EIA notification issued by the Central Government in the exercise of the powers conferred on it by the 1986 Act and the 1986 Rules.
While the State Government should have referred to the EIA 1994 notification, in the preliminary notification issued by it under Section 11(1) of the 2013 Act, the mere fact that a wrong notification has been referred to therein, would not vitiate the preliminary notification, issued under Section 11(1) of the 2013 Act, as long as the State Government is able to show that the provisions of the 2013 Act, relating to social impact assessment, are not applicable, even if it be for any other reason. It is well settled that if power to do an act or pass an order can be traced to an enabling statutory provision, then, even if that provision is not specifically referred to, the act or order shall be deemed to have been done or made under the enabling provision. (Pine Chemicals Ltd. v. Assessing Authority ). As the 1994 EIA notification requires environmental clearance to be granted for irrigation projects, and the HNSS project has been granted environmental clearance by proceedings of the Government of India dated 08.05.2006, failure to refer either to the 1994 EIA notification or the letter dated 08.05.2006, in the preliminary notification issued under Section 11(1) of the 2013 Act, is of no consequence.
VI. OPPORTUNITY OF FILING OBJECTIONS : SCOPE OF SECTION 15 OF 2013 ACT:
Sri O. Manohar Reddy, Learned Counsel for the respondent- writ petitioners, would submit that, since the preliminary notification issued under Section 11(1) of the 2013 Act neither refers to the 1994 EIA notification nor to the environmental clearance granted pursuant thereto on 08.05.2006, the respondent-writ petitioners, who are land-losers, have been deprived of their valuable right to put forth their objections under Section 15(1) of the 2013 Act.
On the other hand the Learned Advocate General for the State of A.P. would submit that the respondents' contention, that they have been deprived of their right to raise objections under Section 15 of the 2013 Act, is not tenable as objections can be raised only on the three grounds mentioned therein; in the pleadings in W.P. No.30383 of 2016 neither has the area and suitability of the land, nor of the land being acquired for a public purpose, been disputed; since the 2013 Act does not require a Social Impact Assessment study to be conducted for the HNSS project, the question of raising objections, on the findings of the Social Impact Assessment Report, under Section 15 (1 )(c) of the 2013 Act does not arise; and the petitioners cannot seek invalidation of the acquisition proceedings without pointing out how prejudice would be caused to them, if they are not allowed to raise objections under Section 15(1) of the 2013 Act.
The contention urged before us, that the petitioner has been denied the opportunity of putting forth his objections under Section 15 of the 2013 Act, does not merit acceptance. Chapter-IV of the 2013 Act relates to notification and acquisition, and Section 11 relates to publication of preliminary notification and power of officers thereupon. Section 11(1) requires the appropriate Government whenever it appears that a land in any area is required, or is likely to be required for any public purpose, to publish a notification to that effect along with details of the land to be acquired in rural and urban areas. Section 15 relates to hearing of objections and, under sub-section (1) thereof, any person interested in any land which has been notified under Section 11(1), as being required or likely to be required for a public purpose, may, within 60 days from the date of publication of the preliminary notification, object to (a) the area and suitability of land proposed to be acquired; (b) justification offered for public purpose; and (c) the findings of the Social Impact Assessment report.
Section 15(2) enables every objection under Section 11(1) to be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by an Advocate and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either to make a report in respect of the land which has been notified under Section 11(1) or to make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled, for the decision of that Government.
The right to submit objections under Section 15(1) is conferred on any person interested on the land which has been notified under Section 11(1) of the 2013 Act. The objection which such a person is entitled to make are with reference to (a) the area and suitability of land proposed to be acquired; (b) justification offered for public purpose; and (c) the findings of the Social Impact Assessment Report. In the present case, as the appellant has been granted environmental clearance by the Government of India, the provisions of the 2013 Act, with respect to social impact assessment, has no application. Consequently, the question of the respondent-writ petitioner filing their objections, on the findings of the social impact assessment report, under Section 15(1)(c) of the 2013 Act, does not arise. The fact that the HNSS project, an irrigation-cum-drinking water project, is for a public purpose is also evident. The only objection which the petitioner could have raised, under Section 15(1) of the Act, is regarding the area and suitability of the land proposed to be acquired.
It has not even been contended before us, by Sri O. Manohar Reddy, Learned Counsel for the petitioner, that the petitioners land, and the area in which these lands are located, are not suitable for the purpose of the HNSS project. The dispute, in the present Writ proceedings, mainly relates to the failure of the appellant to comply with the requirements of Chapter-II of the 2013 Act, of a social impact assessment to be conducted. As noted hereinabove, the requirement of conducting a social impact assessment is inapplicable, since the appellants fall within the ambit of EIA 1994 Notification. As shall been detailed hereinafter, a substantial part of the HNSS project has already been completed. It would, therefore, not be open to the petitioner to now be heard to contend that his lands are not suitable for establishment of the said project. Consequently, the respondent-writ petitioners right to submit their objections, under Section 15 of the 2013 Act, cannot be said to have deprived, nor can they have been said to have suffered prejudice thereby.
VII. SHOULD COURTS AVOID AN OUTCOME WHICH MAY HAVE AN ADVERSE EFFECT ON GROWTH OF INFRASTRUCTURE OR ECONOMY OF THE STATE?
Learned Advocate General, for the State of Andhra Pradesh, would submit that G.O.Ms.No.186 dated 15.10.2005, and the agreement dated 05.02.2007, between the Superintending Engineer, Irrigation with M/s. Hindustan Ratna (Joint Venture), would show that construction of the HNSS project commenced long before 07.05.2011; the HNSS Project has been conceived with the laudable objective of providing drinking water to the parched districts of the Rayalaseema region; out of a total 345 kms, length of the HNSS Main Canal in Phase-II, so far a length of 342.25 kms has been completed, and only 2.75 Kms are pending; the appellants have followed the due process of law, while acquiring lands for the HNSS Project; this project will be further delayed, and the people of the region would have to await a considerable period of time to have access to drinking water, if the appellants have to re-acquire the respondents' lands by following the provisions of the 2013 Act; in Shiva Shakti Sugars Ltd v. Shree Renuka Sugars Pvt. Ltd. , the Supreme Court held that, in a situation where two views are possible, the Court needs to lean in favour of a particular view which subserves the economic interest of the nation, and the Court should avoid that particular outcome which does not subserve the economic interest of the nation; and, in the light of the aforesaid judgment, this Court may bear in mind the adverse consequences on the people of Anantapur, Kurnool, Kadapa, Chittoor districts if the HNSS Project is further delayed.
The HNSS project is envisaged in the larger public interest of providing irrigation facilities, and to supply drinking water, to the chronically drought affected upland areas in Kurnool, Kadapa, Ananthapur and Chittoor Districts of Andhra Pradesh. The submission of the Learned Advocate-General is that, from out of 345 K.Ms length of HNSS minor canal in Phase-II, construction of a length of 342.25 K.Ms has already been completed; only works for a length of 2.75 K.Ms alone are pending; and acquisition of the subject lands is necessary to complete the remaining works for a length of 2.75 K.Ms of the HNSS minor canal.
The extra-ordinary jurisdiction of the High Court, under Article 226 of the Constitution of India, is discretionary, and is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will, ordinarily, be exercised subject to certain self-imposed limitations, (Thansingh Nathmal v. Supdt. of Taxes ), and not as a matter of course. The discretionary jurisdiction, under Article 226 of the Constitution of India, must be exercised with great caution and only in furtherance of public interest, and not merely on the making out of a legal point. Larger public interest must be kept in mind in order to decide whether intervention of the Court is called for or not (Master Marine Services Pvt. Ltd v. Metcalfe and Hodgkinson Pvt Ltd ; Air India Ltd v. Cochin International Air Port Ltd ; Rashpal Malhotra v. Mrs. Saya Rajput ; Council of Scientific and Industrial Research v. K.G.S. Bhatt ). Even if a legal flaw might be electronically detected, this Court would not interfere save manifest injustice or unless a substantial question of public importance is involved. (Rashpal Malhotra7; K.G.S. Bhatt8).
The HNSS project, an irrigation and drinking water project constructed to cater to the parched districts of the Rayalaseema region of the State of Andhra Pradesh, is undoubtedly in larger public interest, and it would be wholly inappropriate, to set aside proceedings for acquisition of lands for the purpose of the said project, or to dismiss this appeal, on mere technicalities. While we must ensure that the respondent-writ petitioners are not denied their constitutional right under Article 300-A of the Constitution of India, and are not deprived of their property save by authority of law, we should also not hinder early completion of a project, of significant public importance, merely because some officials have not been diligent in placing all necessary facts before the Court.
The questions which remain to be considered are: (a) whether the subject lands fall within the scope of the project for which environmental clearance was granted vide GOI letter dated 08.05.2006 and (b) whether the appellant had commenced construction in terms of the GOI letter dated 08.05.2006 within five years i.e., on or before 07.05.2011. While it does appear, from a reading of G.O.Ms.No.186 dated 15.10.2005, that the findings of the Learned Single Judge that the environmental clearance granted on 08.05.2006 was confined only to Kurnool District, and did not relate to Ananthapur District where the subject lands, which are sought to be acquired, are located, are erroneous, we are satisfied that these matters should be examined afresh in the Writ Petition, after parties on either side are permitted to file additional affidavits placing/rebutting these facts.
We consider it appropriate, therefore, to set aside the order of the Learned Single Judge, and restore the Writ Petition to file. The appellants are permitted to file an additional counter-affidavit, furnishing details regarding the HNSS project, for which environmental clearance was granted vide letter dated 08.05.2006, to establish that (i) the subject lands, which are sought to be acquired, fall within the scope of the project for which environmental clearance was granted vide letter dated 08.05.2006; and (ii) they commenced construction of the HNSS project on or before 07.05.2011. After the petitioners are given the opportunity to file their reply affidavits, the Learned Single Judge shall examine the aforesaid questions in accordance with law. The Principal Secretary, Revenue (Land Acquisition) Department, shall, at the earliest, also identify those officials who were responsible for not bringing all relevant facts, to the notice of this Court, in the counter-affidavits filed in the Writ Petition; and initiate disciplinary proceedings against them, for such negligent acts, in accordance with law.
VIII. SHOULD THE INTERIM ORDER, WHICH REMAINED IN FORCE DURING THE PENDENCY OF THE WRIT PETITION, BE MODIFIED ON ITS REMAND TO THE LEARNED SINGLE JUDGE FOR HIS CONSIDERATION AFRESH?
While ordering notice before admission, in W.P. No.30383 of 2016, on 08.09.2016 the Learned Single Judge granted interim stay as prayed for i.e., stay of all further proceedings pursuant to the notification and declaration, issued under Sections 11 and 19 of the 2013 Act, in so far as the petitioners lands are concerned. As W.P.No.30383 of 2016 was later allowed, and the preliminary notification issued under Section 11 and the declaration under Section 19 of the 2013 Act were set aside, the matter being remanded to the Learned Single Judge would, ordinarily, result in revival of the interim order which would further delay completion of the HNSS project. Should the said interim order be modified? If so, what should be the nature of the order to be passed? These questions necessitate examination?
Continuing the earlier interim order would further delay completion of the HNSS project, jettison finely worked financial arrangements and escalate costs. The obvious consequence of such delay is price escalation. What is more important is that ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project, and the consequent delay in the contemplated public service becoming available to the public. As the project is for the construction of an irrigation project/canal, the delay in water supply for agriculture, and drinking water being made available, can be a substantial setback to the States economic development. (Raunaq International Ltd. v. I.V.R. Construction Ltd. ; Shiva Shakti Sugars Ltd.3).
In this context it is useful to note that the interface between Law and Economics is of considerable significance in todays time when our country has ushered in the era of economic liberalisation. India is on the road of economic growth and efforts are being made, at various levels, to ensure that it becomes a fully developed economy. The judicial wing, while discharging its judicial functions, is also required to perform its role in this direction. There is a direct impact of economics in certain branches of law, and economic considerations play a predominant role, some of which are even recognised as legal principles. (Shiva Shakti Sugars Ltd.3).
While taking into account economic considerations, specific provisions of law should not be ignored as the first duty of the Court is to decide the case by applying the statutory provisions. However, while interpreting a particular provision, its economic impact, wherever warranted, should be kept in mind. Where two views are possible, or wherever discretion is given to the Court by law, the Court should lean in favour of the view which subserves the economic interests of the nation. Conversely, the Court needs to avoid that particular outcome which has a potential to create an adverse effect on the growth of infrastructure or the economy or the revenue of the State. (Shiva Shakti Sugars Ltd.3).
In Ramniklal N. Bhutta v. State of Maharashtra , the Supreme Court observed:-
Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with china economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power or grant in stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.. (emphasis supplied) In cases where economic interest competes with the rights of other persons, there is a need to strike a balance between the two competing interests. (Shiva Shakti Sugars Ltd.3). While passing/modifying an interim order, the Court should consider the balance of convenience, the public interest involved and the financial impact of the interim order. (Raunaq International Ltd.9; Shiva Shakti Sugars Ltd.3; CCE v. Dunlop India Ltd. ). The court should arrive at a proper balance of competing interests, and grant stay of execution of the project only when there is an overwhelming public interest in granting it, as against the public detriment which may be caused thereby. The Court should also satisfy itself whether the public interest, in holding up the project, far outweighs the public interest in carrying it out within a reasonable time. The Court must take into account the cost involved in staying the project, and whether the public would stand to benefit by incurring such cost. (Ramniklal N. Bhutta10; Raunaq International Ltd.9; Shiva Shakti Sugars Ltd.3).
The adverse economic impact, including cost overruns and the cost of providing drinking water and irrigation facilities from other sources, should be borne in mind while considering the manner in which the interim order, in force during the pendency of the Writ Petition, should be moulded to safeguard the constitutional rights of individuals who have approached the Court as also to protect the larger public interest involved in ensuring early completion of the project, conceived and established in the larger public interest of providing drinking water and irrigation facilities to the parched districts of the Rayalaseema Region of Andhra Pradesh.
The Supreme Court, in Raunaq International Ltd.9, observed that the petitioner, asking for interim orders, in appropriate cases should be asked to provide security for any increase in cost as a result of such delay or any damages suffered in consequence of an interim order; otherwise public detriment may outweigh public benefit in granting such interim orders; and stay order or injunction order, if issued, must be moulded to provide for restitution. As held by the Supreme Court, in Ramniklal N. Bhutta10, there are many ways of affording appropriate relief and redressing a wrong. It would even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement, that the persons interested in the land should also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of the compensation payable.
IX: CONCLUSION:
As the cost overruns, in staying execution of the project, would far outweigh the benefit which the petitioner would be entitled even in case the Writ Petition were again to be allowed later, we consider it appropriate to modify the earlier interim order and direct the appellants herein, after determining the compensation payable to the petitioners pursuant to the award to be passed, to (i) pay the said compensation to the petitioners which they are entitled to receive, without prejudice to their right to avail their statutory remedies for seeking enhancement of such compensation; (ii) in addition thereto, the appellant shall deposit 50% of such compensation with the Registrar (Judicial) of this High Court, who shall invest the said amount in an interest bearing cumulative fixed deposit, during the pendency of the Writ Petition. In case the Writ Petition is allowed later, the Learned Single Judge may consider determining the nature and extent of damages to be paid to the respondent-writ petitioners for their being illegally deprived of their lands, and direct its payment from the amounts kept in fixed deposit. It is made clear that we have neither stipulated the quantum of damages to be paid in such an eventuality to the respondent-writ petitioners, nor have we restricted the damages, if any, to be paid only to the amount deposited with the High Court. (iii) In case the Writ Petition were to be dismissed later, the amount kept in deposit, along with interest accrued thereon, shall be returned to the State Government; and (iv) it is only after compensation, in terms of the award passed, is paid to the respondent-writ petitioners and, in addition thereto, 50% of such compensation is deposited with the Registrar (Judicial) of the High Court, shall the appellants herein be entitled to take steps to dispossess the petitioners from the subject lands.
The Writ Appeal is, accordingly, disposed of. The Miscellaneous Petitions, if any pending, shall also stand disposed of. No costs.
________________________________ RAMESH RANGANATHAN, ACJ _________________ J. UMA DEVI, J.
Date:29.12.2017.