Madhya Pradesh High Court
Sasan Power Ltd. vs The State Of Madhya Pradesh on 20 November, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
W.P. No.2280 of 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 20th OF NOVEMBER, 2024
WRIT PETITION No. 2280 of 2019
SASAN POWER LTD.
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri Himanshu Shukla - Advocate for petitioner.
Shri Anshuman Swamy - Government Advocate for the State.
Shri Vikas Kumar Tiwari - Advocate for respondents No.4 and 5.
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ORDER
Petitioner has filed these petitions under Article 226 of the Constitution of India challenging order dated 29.08.2018, 07.06.2018 and 28.10.2017 by which direction has been issued to petitioner Company to comply with agreement and provide permanent job to the displaced persons.
2. Learned counsel appearing for petitioner submitted that Collector does not have any jurisdiction to pass orders. Order is without jurisdiction, therefore, bad in law. It is further submitted that private respondents are not eligible to that jobs as per Clauses of Resettlement and Rehabilitation Policy as the respondents are owners of land which is less than 1 acre. In these circumstances, Collector has committed an error in passing of orders.
3. Learned counsel appearing for petitioner has relied upon the Clauses 2 W.P. No.2280 of 2019 21.1 and 21.2 in which it has been stated that job will be offered to the displaced persons and if job cannot be provided then allowances will be provided to persons whose land measuring 1 acre in respect of General Category and 0.5 acre in respect of SC/ST Category is acquired. It is submitted that in case of dispute, matter is to be referred to the District Level Committee. Since there is a dispute and matter is to be heard by the District Level Committee, therefore, Collector has acted beyond its jurisdiction.
4. Clause 21.1 and 21.2 is quoted as under:-
21 वििादो का विपटारा 21.1 छोटी योजनाओं में जहां संबंधधत लोगो, खासतौर से अनुसूधित जाधत एवं अनुसूधित जनजाधत के सदस्ों में से एक िैथाई की, उनके धलए पेश की गयी योजना से सहमधत नहीं है , तो इन मामलों पर धजला/संभागीय स्तर पर सधमधत द्वारा धविार धकया जायेगा और उसका फैसला अंधतम होगा। बड़ी योजनाओं के बारे में भी इस प्रकार के धववाद पर धविार धजला/संभागीय स्तरीय सधमधत द्वारा धकया जायेगा और उसके पश्चात भी यधद मामले में सहमधत नहीं बन पाती है तो इस प्रकार के प्रकरण में राज्य स्तरीय सधमधत द्वारा धविार धकया जायेगा और उसका फैसला अंधतम होगा।
21.2 धकसी पररयोजना के मामले में इस नीधत के दायरे से संबंधधत या अन्य कोई भी मामला, उसके धियान्वयन, जैसे धहतधारी व्यक्तियों की पहिान, उनको धमलने वाले फायदे आधद, के बारे में धववादों का धनपटारा यथासंभव धजला/संभागीय स्तरीय सधमधत द्वारा धकया जायेगा।
यधद आवश्यक होगा तो धजला/संभाग स्तरीय सधमधत, राज्य स्तरीय सधमधत से मागगदशग न प्राप्त कर सकेगी।
5. In view of aforesaid submissions, counsel appearing for petitioner submitted that Collector was not competent to decide the dispute and respondents do not qualify for permanent job as land belonging to respondents which was acquired was less than one acre and prayer is made for setting aside the award passed by the Collector.
6. Learned counsel appearing for the respondents submits that petitioner is 3 W.P. No.2280 of 2019 misguiding the Court. The Collector has jurisdiction to pass the orders. Question of jurisdiction was not raised before the Collector. It is further submitted that an agreement was entered between petitioner Company and respondents, wherein it has been agreed that displaced persons shall be granted permanent job. In view of same, no error can be found in the orders which have been passed by the Collector.
7. Heard counsel for the parties.
8. Chapter VII of Land Acquisition Act, 1894 is in respect of acquisition of land for companies. Said Chapter is applicable in respect of acquisition of land for petitioner company. Relevant provisions of Chapter VII i.e. Sections 40, 41 and 42 are quoted as under:-
"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 5-A, 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 Procedure, 1908 (5 of 1908) in the case of a Civil Court.4 W.P. No.2280 of 2019
41. Agreement with appropriate Government.- If the appropriate Government is satisfied after considering the report, if any, of the Collector under section 5-A, 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;
(4-A) 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) have the same effect as if it had formed part of this Act.
9. Another provisions i.e. Sections 11, 12, 18, 30 and 54 of Land 5 W.P. No.2280 of 2019 Acquisition Act,1894 which are relevant in respect of acquisition of land in respect of private companies are quoted as under:-
"11. Enquiry and award by Collector.-(1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector hall proceed to enquire into the objection (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land [at the date of the publication of the notification under section 4, sub- section (1), and into the respective interest of the persons claiming the compensation and shall make an award under his hand of-
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:
[Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf: Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.
(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other 6 W.P. No.2280 of 2019 provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub-
section (2) shall be liable to registration under that Act. 11-A. Period within which an award shall be made-(1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
12. Award of Collector when to be final.- (1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.
(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.
18.Reference to Court.-(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made-
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), 7 W.P. No.2280 of 2019 or within six months from the date of the Collectors award, whichever period shall first expire.
30. Dispute as to apportionment.-When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.
54. Appeals in proceedings before Court. - Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to [the Supreme Court] subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof."
10. After going through relevant provisions of Land Acquisition Act, 1894, it is clear that land for companies can be acquired for purposes mentioned in Section 40. Company which requires land has to enter with an agreement with the appropriate Government for satisfaction of the appropriate Government. That conditions mentioned in agreement for acquisition will be followed by the company. Thereafter, there is publication of agreement in Gazette. After publication of agreement in Gazette, revenue authority shall acquire the land. Company is free to enter into agreement with the persons whose land is to be acquired. Agreement between the company and the oustees. Company is bound to comply with the terms and conditions of the agreement entered between it and the oustees. Collector on basis of agreement under Section 41 of Land Acquisition Act, and private agreement entered between company and oustees has to pass an award considering Sections 11 and 12 of the Land Acquisition Act, 1894. As per Section 11(2) of Land Acquisition Act, if Collector is satisfied that all persons interested in land who appeared before him and agreed in 8 W.P. No.2280 of 2019 writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may make further inquiry, if required and pass award according to terms of such agreement. Section 11(2) stipulates that Collector is required to pass award in accordance with agreement which has been entered between company and State Government and also between private companies and oustees. If there is a condition in agreement between company and Government which is entered between them in accordance with Section 41 and later on, if sale deed has been executed between company and oustees and condition of sale is mentioned in said agreement, then award passed by Collector shall make said conditions part of the award which is to be passed under Section 12 of Land Acquisition Act, 1894. Company had entered into an agreement dated 31.10.2009 with Collector as per terms of Section 41 of the Act, 1894. Paragraph 8 of said agreement mentioned that employment will be granted to the land oustees. Thereafter, company had entered into sale deed with land oustees dated 23.02.2013. In agreement of sale deed, it is mentioned that property acquired from private respondents is less than one acre. In minutes of meeting dated 11.10.2014, Clause 3.2 mentions that sustenance amount shall be granted to oustees belonging to General Category if property acquired is more than one acre.
11. On going through aforesaid facts and provisions of law, minutes of meeting dated 11.10.2014 contained in Annexure-P/8 will not affect the conditions of agreement to provide job to land oustees. Minutes of meeting dated 11.10.2014 is entered much after the agreement which is entered between private company and State Government. Subsequent Minutes of meeting of 11.10.2014 will not overrule the conditions of agreement between company and State Government dated 31.10.2009 and agreement of sale between company and private respondents, therefore, company is liable to provide job as agreed 9 W.P. No.2280 of 2019 by it in agreement with government under Section 41 of Land Acquisition Act and agreement of sale between company and private respondents dated 23.02.2013.
12. Counsel for petitioner has raised the issue that Collector cannot decide the dispute between private respondents and petitioner. As per the Rehabilitation and Resettlement Policy of 2002, any dispute which is arising in respect of benefits to be granted to land oustees is to be decided by a committee constituted at District and Division level as per Clause 21.2 of Rehabilitation Policy. District/Division level committee is to be constituted under Clause 11 which will have In-charge Minister as Chairman and President of Zila Panchayat is to be Member and further Member of Parliament/MLA will also be nominated in said committee by State Government and President of Janpad Panchayat will also be a Member.
13. Counsel for respondents submitted that no such committee was in place, therefore, Collector has considered the grievances of land oustees and passed the impugned order. From the Scheme of Land Acquisition Act, 1894 which is statutory in nature, it is provided that Collector will include the terms and conditions of agreement in award. Award which has been passed by Land Acquisition Officer/Collector under Section 12 has to include terms and conditions of agreement which is entered between State Government and private company and to other terms and conditions which party has agreed in agreement is to be included in the award in accordance with Section 11(2) of Land Acquisition Act, 1894. If a person is not given the benefits as mentioned in award, then aggrieved person can prefer an application before Collector for referring the matter for adjudication before Court. District Court has to deal with the matter and after considering all objections and grievances of claimant/land oustees has to pass order. Said order shall be subject to scrutiny in first appeal by High Court. In this case, Collector ought to have made 10 W.P. No.2280 of 2019 agreement between the State Government and company and agreement between land oustees and company as part of the award to make said conditions of agreement enforceable as per the Scheme of Land Acquisition Act, 1894. A party cannot be sent to Civil Court for enforcement of the terms of the agreement and to file a suit for breach of contract by private company. Collector is not the forum available to an aggrieved person if conditions of agreement and Resettlement and Rehabilitation Policy has not been followed. Compensation for acquisition of land and rehabilitation and resettlement package which is to be provided to a person is to be made as part of the award. There cannot be two proceedings i.e. one proceeding for granting compensation another proceeding before State Government for granting benefits of rehabilitation and resettlement packages. Compensation which is to be granted to the land oustees/claimants shall include compensation to be awarded for acquisition of land and rehabilitation and resettlement package which is agreed by parties in agreement, is also to be made part of the award so that there is one consolidated relief granted to land oustees and if such land oustees have any grievance, he shall have a statutory remedy available as per the scheme of the Act prepared by Legislature of this country.
14. In view of same, writ petition filed by petitioner is partly allowed. Collector does not have any jurisdiction to force company to follow the conditions which has been mentioned in agreement entered between State Government and company or between private person and company. Agreement under Section 41 is a bi-party agreement between Government and company and sale deed is a bi-party agreement between company and a private person. Parties to agreement themselves cannot enforce the terms of the agreement. No one can be a judge in their own cause. In view of same, Collector could not considered the non-compliances made by the company. If there is non- compliances by the company and terms of agreement is part of award, then 11 W.P. No.2280 of 2019 aggrieved persons have to file a reference case before Collector for sending it to District Court for adjudication in accordance with Scheme of the Land Acquisition Act, 1894. Award does not include terms of agreement therefore course open to aggrieved party is to approach Collector/State Government for constituting grievance redressal committee in consonance with Rehabilitation and Resettlement Policy of 2002. Order passed by Collector is neither in consonance with Rehabilitation and Resettlement Scheme of 2002 nor in accordance with Land Acquisition Act, 1894, therefore, order passed by Collector dated 29.08.2018 is set aside. Aggrieved parties who were not given the benefits as per Rehabilitation and Resettlement Policy of 2002 may file an application before Collector for constituting district level grievance redressal committee as envisaged under Clause 21.2 of Rehabilitation and Resettlement Policy, 2002 for getting the said benefits in accordance with the terms of agreement.
15. With aforesaid directions, writ petitions are disposed off.
16. Certified copy as per rules.
(VISHAL DHAGAT)
JUDGE
sp/- Digitally signed by SUNIL KUMAR PATEL
DN: c=IN, o=HIGHT COURT OF MADHYA PRADESH,
SUNIL KUMAR ou=GOVERMENT,
2.5.4.20=3ad456309c8cfa67fdf9acdac6949bbc6ea 3342f02b1af1bdaf3424a04c11d99, PATEL postalCode=482001, st=MADHYA PRADESH, serialNumber=5011B37A3DD5E32019F501F10E87 8D2F118732491B5F40BDC9923237D954365B, cn=SUNIL KUMAR PATEL Date: 2024.12.13 18:33:50 +05'30' 12 W.P. No.2280 of 2019