Madhya Pradesh High Court
Ashok vs The State Of Madhya Pradesh on 8 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P.No.19945/2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 8th OF FEBRUARY, 2024
WRIT PETITION No. 19945 of 2013
BETWEEN:-
1. ASHOK S/O SHRI DHARAMDAS PATEL,
AGED ABOUT 22 YEARS, GRAM DEU
TEHSIL AMARPATAN, DISTT. SATNA
(MADHYA PRADESH)
2. BRAJESH S/O SHRI CHHAVILAL PATEL,
AGED ABOUT 21 YEARS, R/O GRAM
BABUPUR, TEHSIL AMARPATAN, DISTT.
SATNA (MADHYA PRADESH)
3. HARPRASAD S/O SHRI RAMKHILAWAN
PATEL, AGED ABOUT 42 YEARS, R/O GRAM
ETMA KOTHAR, TEHSIL AMARPATAN,
DISTT. SATNA (MADHYA PRADESH)
4. SMT. JALEBIA BAI W/O SHRI RAMDULARE
PATEL, AGED ABOUT 46 YEARS, R/O GRAM
ETMA KOTHAR, TEHSIL AMARPATAN,
DISTT. SATNA (MADHYA PRADESH)
5. RAMPAL S/O SHRI RAMKHILAWAN PATEL,
AGED ABOUT 35 YEARS, R/O GRAM ETMA
KOTHAR, TEHSIL AMARPATAN, DISTT.
SATNA (MADHYA PRADESH)
6. SANJAY KUMAR (DELETED AS PER COURT
ORDER DATED 03.12.2014)
7. SHUBHKARAN PRASAD S/O SHRI KAMLA
PRASAD PATEL, AGED ABOUT 42 YEARS,
R/O GRAM BRAMHANADI, TEHSIL NAGOD,
DISTRICT SATNA (MADHYA PRADESH)
8. KRISHNA AVTAR S/O SHRI
LAXMINARAYAN PATEL, AGED ABOUT 22
YEARS, R/O GRAM KHANNA BANJARI,
TEHSIL VIJAYRAGHAVGARH, DISTRICT
KATNI (MADHYA PRADESH)
2 W.P.No.19945/2013
.....PETITIONERs
(BY SHRI JITENDRA SINGH PARIHAR - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
DEPARTMENT OF REVENUE, THROUGH
ITS SECRETARY, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2.
THE COLLECTOR, DISTRICT SATNA
(MADHYA PRADESH)
3. THE SUB DIVISIONAL OFFICER/LAND
ACQUISITION OFFICER, MAIHAR,
DISTRICT SATNA (MADHYA PRADESH)
4. KJS CEMENT LTD. THROUGH ITS
PRESIDENT REGISTERED OFFICE NH-7,
RAJNAGAR MAIHAR, DISTRICT SATNA
(MADHYA PRADESH)
5. INDIA RAILWAYS THROUGH SECRETARY
RAIL BHAWAN, NEW DELHI (DELHI)
.....RESPONDENTS
( SHRI ANUBHAV JAIN - GOVERNMENT ADVOCATE FOR RESPONDENTS
NOS.1 TO 3/STATE)
This petition coming on for hearing this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been filed seeking the following reliefs:
"(i) That this Hon'ble High Court may kindly be pleased to call for the entire records pertaining to this case.
(ii) That this Hon'ble High Court may kindly be pleased to quash the notification under section 4 dated 06.09.2012 was published in the Gazette notification dated 14.09.2012 in the larger interest of Justice.3 W.P.No.19945/2013
(iii) That this Hon'ble High Court may kindly be pleased to quashed the notification under section 6 of the Land Acquisition Act which was published in Gazette notification dated 22.2.2013 in the larger interest of Justice.
(iv) That this Hon'ble High Court may kindly be pleased to quashed the proceeding of case no. 6A82/12-13 initiated after notification under section 9 may kindly be quashed.
(v) That this Hon'ble High Court may kindly be pleased to restrain to disposed the petitioner from their agriculture land.
(vi) Any other relief which the Hon'ble court deems fit and proper under the facts and circumstances of this case together with compensatory cost upon the Respondents in the interest of justice."
2. It is submitted by counsel for petitioner that identical W.P. No.8439/2013 (Smt. Arti Tiwari and another Vs. State of Madhya Pradesh and others) has been allowed by order dated 12.04.2023 and the present case is squarely covered by said order.
3. Accordingly, State counsel was directed to go through the order replied upon by petitioner and to make a statement as to whether the present case is covered by the said order or not?
4. In the second half of the day Shri Anubhav Jain after going through the order passed in the case of Smt. Arti Tiwari (supra) has fairly conceded that this case is squarely covered by the said order.
5. Heard learned counsel for parties.
6. The co-ordinate Bench of this Court in the case of Smt. Arti Tiwari (supra) has passed the following order:
"1. Counsel appearing on behalf of respondent No.4 made a prayer for adjournment of the case. It is pointed out by learned advocate for the petitioners that earlier also time was sought and cost of Rs.10,000/- was 4 W.P.No.19945/2013 imposed upon respondent No.4. The said cost has also not been deposited by respondent no.4 and respondents are shying from arguing the case.
2. In these circumstances prayer for adjournment of the case is declined.
3. Petitioners have filed this petition under Article 226 of the Constitution of India challenging orders dated 6.9.2012, 14.09.2012 and 22.2.2013 and Award dated 14.6.2013 Revenue's case No.6A-82/12-13 passed by Sub-Divisional Officer, Land Acquisition Officer, Maihar.
4. Learned counsel for the petitioners raised singular ground that award passed by the Land Acquisition Officer is without jurisdiction. Under Section 44B of the Land Acquisition Act, 1894, land for private companies can be acquired for limited purpose. Counsel appearing for the petitioners submitted that as per part-VII Section 44B of the Land Acquisition Act, 1894, land for companies can be acquired for purposes mentioned in Section 40 (1)(a) of the Land Acquisition Act 1894. It is admitted position that respondent No.4 falls within defination of private company. Section 40 (1)(a) lays down that purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the company or for amenities directly connected therewith. Relying on the said Section of the Land Acquisition Act 1894, counsel for the petitioners submitted that the land has been acquired for the purposes of laying down a railway track, which is not permissible under Section 44B of the Land Acquisition Act, 1894. Due to bar under Section 44B of the Land Acquisition Act 1894, Land Acquisition Officer does not have any jurisdiction and entire proceedings of land acquisition stood vitiated.
5. Learned Government Advocate appearing for the State opposed the prayer made in the writ petition. It is submitted that all the procedures as laid down in the Land Acquisition Act, 1894 was performed. Preliminary enquiry was conducted and Government had granted 5 W.P.No.19945/2013 sanction for acquisition of land. There was an agreement as per Section 41 of the Land Acquisition Act, 1894. Counsel appearing for the State fails to point out compliance of Section 40(1)(a) and save the action of acquisition from mischief of Section 44B of the Land Acquisition Act, 1894.
6. Heard learned counsel for the parties.
7. Award for acquisition of land was passed on 14.6.2013 before coming into force of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Act of 2013 was made on 27.9.2013. Therefore, procedure as laid down in Land Acquisition Act, 1894 is to be followed by the Authorities.
8. Provisions which are relevant for adjudication of issue before this Court are Sections 3(cc), 3(e), 39, 40, 41, 42, 43, 44, 44-A, 44-B of Land Acquisition Act, 1894. Said provisions are quoted as under:-
[(cc) the expression "corporation owned or controlled by the State" means any body corporate established by or under a Central, Provincial or State Act, and includes a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956), a society registered under the Societies Regulation Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, being a society established or administered by Government and a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty-one per centum of the paid-up share capital is held by the Central Government, or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments].
[(e) the expression "Company" means - (i) a company as defined in section 3 of the Companies 6 W.P.No.19945/2013 Act, 1956 (1 of 1956), other than a Government company referred to in clause (cc); (ii) a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, other than a society referred to in clause (cc); (iii) a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a co-operative society referred to in clause (cc);]
39. Previous consent of appropriate Government and execution of agreement necessary. - The provisions of [sections 6 to 16 (both inclusive) and sections 18 to 37 (both inclusive)] shall not be put in force in order to acquire land for any company [under this Part], unless with the previous consent of the [appropriate Government], not unless the Company shall have executed the agreement hereinafter mentioned.
40. Previous enquiry. - (1) Such consent shall not be given unless the [appropriate Government] be satisfied. [either on the report of the Collector under section 5A, sub-section (2), or] by an enquiry held as hereinafter provided, - [(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or [(aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or] (b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public]. (2) Such enquiry shall be held by such officer and at such time and place as the [appropriate Government] shall appoint. (3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the [Code of Civil 7 W.P.No.19945/2013 Procedure, 1908 (5 of 1908)] in the case of a Civil Court.
41. Agreement with appropriate Government. - If the [appropriate Government] is satisfied [after considering the report, if any, of the Collector under section 5A, sub-section (2), or on the report of the officer making an inquiry under section 40] that [the proposed acquisition is for any of the purposes referred to in clause (a) or clause (aa) or clause (b) of sub-section (1) of section 40], it shall require the Company to enter into an agreement [with the [appropriate Government]], providing to the satisfaction of the [appropriate Government] for the following matters, namely :-
(1) the - [payment to the [appropriate Government]] of the cost of the acquisition; (2) the transfer, on such payment, of the land to the Company. (3) the terms on which the land shall be held by the Company, [(4) where the acquisition is for the purpose of erecting dwelling houses or the provision of amenities connected therewith, the time within which, the conditions on which and the manner in which the dwelling houses or amenities shall be erected or provided; [(4A) where the acquisition is for the construction of any building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, the time within which, and the conditions on which, the building or work shall be constructed or executed; and] (5) where the acquisition is for the construction of any other work, the time within which and the conditions on which the work shall be executed and maintained and the terms on which the public shall be entitled to use the work.]
42. Publication of agreement. - Every such agreement shall, as soon as may be after its execution, be published in the official Gazette, and shall thereupon (so far as regards the terms on which the public shall be entitled to use the work) 8 W.P.No.19945/2013 have the same effect as if it had formed part of this Act.
43. Section 39 to 42 not to apply where Government bound by agreement to provide land for Companies. - The provisions of sections 39 to 42, both inclusive, shall not apply and the corresponding sections of Land Acquisition Act, 1870 (10 of 1870), shall be deemed never to have applied, to the acquisition of land for any Railway or other Company, for the purposes of which, [under any agreement with such Company, the secretary of State for India in Council, the Secretary of State, [the Central Government or any State Government] is or was bound to provide land].
44. How agreement with Railway Company may be proved. - In the case of the acquisition of land for the purpose of a Railway Company, the existence of such an agreement as is mentioned in section 43 may be proved by the production of a printed copy thereof purporting to be printed by order of Government.
[44A. Restriction on transfer, etc. - No Company for which any land is acquired under this Part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government.
44B. Land not to be acquired under this Part except for certain purpose for private companies other than Government companies. -
Notwithstanding anything contained in this Act, no land shall be acquired under this Part, except for the purpose mentioned in clause (a) of sub-section (1) of section 40, for a private company, which is not a Government company.
9. Facts of this case are that agreement between Secretary, Revenue, Government of Madhya Pradesh and KJS Cement Maihar was entered on 17.5.2012 and 9 W.P.No.19945/2013 publication of same was made in the Gazette on 1.6.2012. Notification under Section 4 was made on 6.9.2012 and same was published in Gazette on 14.9.2012. Notification under Section 6 was made on 13.2.2013 and was published in Gazette on 22.2.2013. As per aforesaid proceedings, Government had reached satisfaction and had entered into an agreement with Company for acquisition of land situated in Village Sonwari, Lakhwar, Lakhanpur, Girgitia and Harnampur Tehsil Maihar District Satna for laying down Railway sliding and approach road. Total 14.302 hectares of land is to be acquired for said purposes. Land Acquisition Officer i.e. SDO Maihar District Satna in Revenue Case No. 6-A-82/2012 and 2013 passed an award on 14.6.2013. Total compensation of Rs. 1,81,00,131/- for acquisition of 9.338 hectares of land. State Government has to follow procedure prescribed in Part VII of M.P. Land Acquisition Act for acquisition of land for company. Expression Company which is used in Section 3 (e) of Land Acquisition Act, 1894, is same as defined in Companies Act, 1956 and other than Government Company referred to in Section 3(cc) of Act of 1894. It is admitted facts that respondent no.4 is company which falls within the definition of Section 3(ee). State Government as well as respondent no.4 followed the provisions mentioned in Part VII of Land Acquisition Act, 1894. First step for acquisition of land for company is previous enquiry which is to be conducted under Section 40 of the Act. Once Government is satisfied after enquiry that purposes of acquisition of land falls within Section 40 (1)(a), 1(aa) and 1(b) then agreement is to be entered between State Government and company. Government has reached satisfaction in enquiry that purposes of acquisition of land is within the ambit of Section 40 and entered into an agreement with respondent no.4. Said agreement was also published in Gazette as per mandate of Section 42 of Land Acquisition Act, 1894. Section 44 (b) lays down that land for private companies can only be acquired for purposes mentioned in Section 40(1)(a) of the Act of 1894. Section 40(1)(a) provides that acquisition of land is for erection of dwelling houses for workmen 10 W.P.No.19945/2013 employed by company or for provision of amenities directly connected therewith. Government can acquire land for private company which falls within the definition of Section 2(cc) and also for Government company as defined in Section 2(c). Acquisition of land for private company is restricted for purposes mentioned in Section 41(a) i.e. for purposes of erection or dwelling houses or amenities connected with it but for Government company purposes under Section 40 (1) (aa) and 40(1)(b) can also be considered. Section 44-B of Land Acquisition Act, 1894 is mandatory provision which is negatively worded. It lays down that notwithstanding anything contained in the Act of 1894 or in Part VII, land for private companies can be acquired only for purposes mentioned in Section 40 (1)(a). For private companies land cannot be acquired for purposes mentioned in Sections 41(aa) and 41(b). Respondent/State has failed to show that land in question has been acquired for construction of dwelling houses for workmen or to provide amenities to workmen such as road for providing amenities to workmen in dwelling houses. Acquisition of land has been made for laying down railway sliding track for transportation of raw material and other products of the company. Acquisition is not for construction or dwelling houses of workmen or amenities therewith. Acquisition of land may be for public purpose and for industry or for some work which is likely to be useful to the public but for said purposes land cannot be acquired for private company. For other purposes mentioned in Sections 41(aa) and 41 (b) can be acquired for the Government companies but not for private company. There was no previous enquiry and satisfaction of Government that land for acquired for purposes mentioned in Section 41(1)(a) of the Land Acquisition Act, 1894. For other purposes mentioned in Sections 41 (aa) and 41 (b), land cannot be acquired for private company. In view of same, it is clear that acquisition of land has been made contrary to the purposes for which it can be acquired under Land Acquisition Act 1894.
11 W.P.No.19945/201310. Consequently writ petition filed by the petitioners is allowed. Award dated 14.6.2013 passed in Revenue Case No. 6A-82/2012-13 is quashed so far as it relates to the petitioners."
7. Accordingly, this petition is also disposed of in terms and conditions of order passed in the case Smt. Arti Tiwari (supra).
(G.S. AHLUWALIA) JUDGE vc Digitally signed by VARSHA VARSHA CHOURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, CHOUR 2.5.4.20=f460d4685ef5a4622238f0b 59b78c2407fd3ee2f619d9ce8e428c 224c23ec8ac, postalCode=482001, st=Madhya Pradesh, serialNumber=A0506346908D8FDC ASIYA 4A2DA9968A85B01E1D95EF7D163 0553560798626817C4267, cn=VARSHA CHOURASIYA Date: 2024.02.09 16:07:23 +05'30'