Madhya Pradesh High Court
Avinash Pathak vs Secretary The State Of Madhya Pradesh on 1 February, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.1796/2010
Avinash Pathak
Vs.
State of M.P. & others
____________________________________________________________
Shri Rajesh Kumar Pancholi, learned Counsel for the
petitioner.
Shri Rahul Jain, learned Government Advocate for
respondent No.1.
Shri Arpan J. Pawar, learned Counsel for respondents No.2 &
3.
____________________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
____________________________________________________________
O R D E R
(01/02/2012) By this petition under Article 226 of the Constitution of India, the petitioner has claimed the relief to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the petitioner compensation along with damages forthwith without any delay and demur, for the land of the petitioner, which has been utilized by the respondents No.2 and 3 for construction of a stop dam. Alternatively, a relief is claimed by the petitioner for issuance of a writ, direction or order in appropriate nature commanding the respondents to remove their encroachment on the lands of the petitioner where a stop dam has been constructed and restore the land of the petitioner in its original condition to the petitioner.
2. Brief facts leading to filing of the present petition, are that the petitioner came before this Court stating that the land bearing Khasra No.583/1 of Patwari Halka No.29, area 2.932 hectares (about 8 acres) situated at village Kailwara, 2 District Katni, is owned by him. The land is situated less than one kilometer from the main city of Katni and is precious one having a good market price. It is contended that the land was belonging to one Shri Arvind Pathak, the father of the petitioner and after his death, the petitioner is owner of the land being one of the heirs of late Shri Arvind Pathak. It is contended by the petitioner that he came to know that respondents No.2 and 3 started construction of stop dam on the river flowing by the side of the land of the petitioner and for the said purposes, have encroached on the land of the petitioner. Immediate action was taken by the petitioner. Photographs of the construction site were taken, documents were asked for and thereafter he came before this Court complaining that without taking any action for acquisition of the land of the petitioner, unauthorizedly the respondents have entered on the land and precious property of the petitioner and have taken possession of the same. It was contended that such an action of the respondents is thus per se illegal. The reliefs aforesaid have been claimed on the basis of such allegations. It is contended that the law is well settled in this respect by the pronouncement of judgments by the Apex Court in several cases and, therefore, the respondents are liable to pay the compensation as also to restore back the land of the petitioner to him.
3. Upon notice of this writ petition, the respondents have entered appearance and respondents No.2 & 3 have filed a return. By initial return it is contended by respondents No.2 and 3 that they are not making permanent construction on the land of the petitioner. In fact there was acute shortage of drinking water in the city of Katni and to resolve such a problem, it was decided by the respondents to construct a stop dam over the river to collect the water so as to make supply of drinking water to the residents of the city. It is further contended by the respondents in their return that 3 for the said purposes, they made a proposal before the competent authority of the State for grant of sanction and since such a sanction has been granted, a scheme was made for construction of said stop dam and sent for approval under the Urban Infrastructure Development Scheme for small and medium towns (herein after referred to as 'UIDSSMT' for short). It is contended that 80% fund is to be allotted by the Central Government and 20% fund is to be allotted by the State Government to the local authority if such a scheme is approved under UIDSSMT. Since proposals were sanctioned, meetings were held and thereafter it was resolved by the respondent No.2 to construct the dam. Such a sanction was granted by the State Government vide order dated 18th December, 2007 on certain conditions that the respondents will utilize the water stored in such stop dam only for the purposes of providing it to the people for drinking. It is further contended that Tahsildar, Katni was apprised of these facts and a request was made for initiating the process of payment of compensation to the villagers, who are going to be affected by construction of said Barrage as their land was within the area of submergence of the said Barrage. The Tahsildar has initiated action in that respect. Thereafter, a request was made for initiation of proceedings for acquisition of the land of the private individuals and allotting the Government land to the respondent No.2 for the purposes of construction of the said Barrage. A complete list was prepared in that respect and thereafter since the amount was released by the UIDSSMT, the respondent No.2 started the proceedings. Thus, it is contended that no wrong was committed. There was no permanent construction made on the land of the petitioner and, therefore, the petitioner was not entitled to any relief.
4. The petitioner thereafter filed a rejoinder and has refuted the allegations made by the respondents in their 4 return. It is pointed out by the petitioner by making allegation in the rejoinder that construction of permanent nature was being done on the land of the petitioner and, thus, the contention raised by the respondents in their return that the land of the petitioner is not being used for the purposes of permanent construction is totally incorrect. Certain more photographs were annexed with the rejoinder to indicate that respondents No.2 and 3 are making permanent construction over the land of the petitioner.
5. An additional return was filed by the respondents again reiterating the facts as have been stated by them in the return and a copy of deposit of the amount towards the compensation has been placed on record. The petitioner has again filed an additional rejoinder stating that allegations made by the respondents are incorrect. The compensation of land which was to be acquired, was already assessed as was indicated in the letter of the respondents themselves but as against that amount, a paltry amount has been deposited by the respondents and, therefore, it is clear that they are not interested in paying the compensation to the persons, who are going to be affected by construction of such dam.
6. The respondents thereafter have filed an application for taking subsequent events on record and have pointed out that a notification under Section 4 of the Land Acquisition Act, 1894 (herein after referred to as 'Act') has been issued by the State Government intending to acquire the land of the village including the land of the petitioner for the purposes of construction of Barrage. The petitioner has made an application for amendment in the writ petition and has called in question such an action also. Such an application for amendment has been allowed and amendment has been incorporated in the writ petition but no further return has been filed by the respondents.
57. Learned Counsel for the petitioner has vehemently contended that looking to such conduct of the respondents, more particularly the respondents No.2 and 3, it is clear that they have encroached upon the proprietary right of the petitioner enshrined under Article 300-A of the Constitution of India by starting construction over the land of the petitioner without its acquisition. It is contended by learned Counsel for the petitioner that law in this respect has been well settled by the Apex Court in various decisions wherein it has been categorically held that such an act, if done, is in fact violative of Article 19 of the Constitution of India. It is contended that while examining such a procedure, the Apex Court in the case of Spl. Deputy Collector, Land Acquisition, C.M.D.A. vs. J. Sivaprakasam & others, 2011 (2) MPLJ 185, has categorically held that such act of acquisition should be bona fide and in proper manner. It is further contended by the learned Counsel for the petitioner that apart from proving that action was initiated under Section 4 of the Act well in advance before taking possession but it is also important to prove that all objections raised by the concerned persons are decided before taking possession of the land. Thus, it is contended that as per the law laid-down by the Apex Court, action of the respondents was per se illegal as before entering on the land of the petitioner even the notification under Section 4 of the Act was not issued in the present case. Relying on the decision of Khub Chand and others vs. State of Rajasthan and others, AIR 1967 SC 1074, learned Counsel for the petitioner has pointed out that the law is well settled that provisions of the Act are mandatory in nature and without complying with the said provisions, if any action is taken, the same would be void and all acquisition proceedings subsequently initiated or taken pursuant to such an action would also be void. Taking this Court to the findings of the Apex Court given in para 6 of 6 the aforesaid report and the interpretation of the said provisions done by the Apex Court in paragraph 7 of the report, it is contended that if the notification under Section 4 of the Act without complying with the said mandatory direction is issued, the same would be void, the land acquisition proceedings taken pursuant thereto would be equally void.
8. Learned Counsel for the petitioner has further placed reliance in the case of Madhya Pradesh Housing Board vs. Mohd. Shafi & others, (1992) 2 SCC 168, and has contended that the law laid-down by the Apex Court is very clear. It is contended that the law has been propounded by the Apex Court after due consideration of various aspects. Learned Counsel for the petitioner has further drawn attention of this Court to the specific law laid-down by the Apex Court in the case of Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai and others, (2005) 7 SCC 627, and reading paragraph 6, 8, 9, 11, 12, 13 and 21, learned Counsel for the petitioner contended that the earlier pronouncements of law have been considered by the Apex Court and it is reiterated that opportunity of hearing before acquisition proceeding to an aggrieved or affected person is a must. Relying in the case of Julibhai Nanbhai Khachar vs. State of Gujarat and another, AIR 1995 SC 142, learned Counsel for the petitioner has contended that now it is well settled that the right to property under Article 300-A is not only a basic feature of constitution but it is a constitutional right and it cannot be violated in the manner it has been by the act of the respondents. Further relying on the decision of the Apex Court in the case of N. Padmamma and others vs. S. Ramakrishna Reddy and others, (2008) 15 SCC 517, learned Counsel for the petitioner has contended that it is well settled now that the right of property is a human right as well as a constitutional right, hence, cannot be taken away except in accordance 7 with law by anybody. Any act seeking to divest such right must be strictly construed in accordance to law and not otherwise. Placing reliance in the case of Competent Authority vs. Barangore Jute Factory and others, (2005) 13 SCC 477, learned Counsel for the petitioner has contended that a plan in advance was required to be made because absence of a plan also renders the right to file objection nugatory. In absence of the plan, it is impossible to ascertain or know which part of the acquired land is to be used and in what manner. It was nowhere indicated in the notification issued by the respondents as to which part of the land of the petitioner is going to be acquired for the purpose of construction of barrage. The notification itself is vague as it indicates nothing except the Patwari circle and the village and not even the area, which is needed in specific manner as is required under the plan. Therefore, it is contended that the respondents cannot shirk their responsibility of violation of discharge of their duties towards the mandatory provisions of law and, therefore, they are liable to be held guilty of breach of law and accordingly the petitioner is entitled to grant of compensation and all other reliefs claimed in the writ petition in adequate manner.
9. It is reiterated by the learned Counsel for the petitioner that in view of the settled law by the Apex Court, the action of the respondents cannot be said to be justified or in accordance to law even for the alleged public purpose. The position remained the same that without initiating even the acquisition proceedings, the respondents have entered on the land of the petitioner and started construction of the barrage. Panchnamas, reports of the revenue authorities placed on record indicate that the construction has been done on the land of the petitioner also. Thus, it is contended that merely because there was a great important public purpose of construction of barrage, for storing water 8 to provide to the citizens of Katni for drinking, it could not be said that the law was not to be followed by the respondents No.2 and 3. It is, thus, contended that since the respondents have acted in complete violation of settled mandatory law, entire action taken by them is liable to be set at knot and a direction is required to be issued to demolish the construction made on the land of the petitioner and to restore the land of the petitioner to him in its original condition. Learned Counsel for the petitioner has further submitted that if in view of the construction done by the respondents, demolition of the same is not to be ordered by this Court, adequate compensation be granted to the petitioner for breach of such mandatory laws by the respondents.
10. Learned Counsel for the respondents No.2 and 3 has tried to support the action of the respondents contending that the barrage was required to be constructed only for the purposes of storing and conserving water for the purposes of supply of the same for drinking to the residents of Katni city. It is contended that on every occasion it was found that because of acute shortage of drinking water, the public at large at Katni was suffering for last many years. The plan was prepared under the scheme of UIDSSMT and was sent for approval before the competent authority. In the project itself everything was clearly mentioned. Proposal was already made for acquisition of the land and intimation as to how much land would be necessary, in which particular village, was indicated and submitted before the competent authority. Referring to the list annexed with the return of the respondents as Annexure R-8, learned Counsel for the respondents has tried to point out that not only the map but the land area of each person was indicated, which was required to be acquired because the same was within the submergence area of the barrage. It is further stated that a proposal was made for sanction of the amount for 9 acquisition of the land and the amount has been deposited as was sanctioned. However, there is no denial that if the land is needed or is acquired, the compensation as has been calculated and communicated vide memo dated 26.02.2010 (Annexure R-12 annexed with the return of respondents No.2 & 3) is required to be paid to the persons concerned. Placing reliance in a case of Siyaram and others vs. State of M.P. and others, 1992 (2) MPLJ 714, it is pointed out that when an authority constituted under the Act initiates the action for acquisition of a large area of land comprising several lands for planned development, the specification of the particular land needed for a specified purpose intended to be undertaken for the development or construction ultimately to be taken up, is not a condition precedent to initiate the action for acquisition and publication of notification under Section 4(1) of the Act in the Gazette. Such an act does not get vitiated on account of lapses thereof. Thus, it is contended that if the land was required for the specific purpose and this was to some extent indicated in the notification, it cannot be said that the notification was void or was not proper. Relying in the decision of the Apex Court in the case of Competent Authority (supra), learned Counsel for the respondents has contended that in the given circumstances, the Apex Court has held that even if it is found that the notification regarding acquisition of land was invalid or it fails to meet the statutory requirement and if it is found that taking possession of the land of the petitioner in this case pursuant to the notification or even before that was not in accordance with law, it will not be justified to direct demolition of such construction because the dam is constructed for a public purpose and for the betterment of public at large. It is contended that considering the aforesaid situation, the Apex Court has held that it would be appropriate to grant compensation to the land owners appropriately for what they have been deprived of and the 10 demolition of the construction done should not be ordered.
11. Heard learned Counsel for the parties at length, perused the record and examined the law laid-down by the Apex Court.
12. The law of land has been sell settled. When the Constitution of India has conferred the right to property on citizen, it was intended that such right should not be violated by anyone including the State or by its authorities. Of course for the purposes of public utilities the State is empowered to acquire the property of citizen but the safeguards and the procedure thereof is provided in the Act. Time and again such aspects were examined by the Apex Court on various occasions and even this much is now well settled that the property rights are not only constitutional rights but are fundamental rights of citizen. To take away the property of someone, it is mandatory to observe certain procedure. The Apex Court in case of Madhya Pradesh Housing Board (supra) has categorically laid-down importance of issuance of notification under Section 4 of the Act and has held in para 8 of the report thus :
"8. It is settled law that the process of acquisition has to start with a notification issued under Section 4 of the Act, which is mandatory, and even in cases of urgency, the issuance of notification under Section 4 is a condition precedent to the exercise of any further powers under the Act. Any notification which is aimed at depriving a man of his property, issued under Section 4 of the Land Acquisition Act has to be strictly construed and any serious lapse on the part of the acquiring authority would vitiate the proceedings and cannot be ignored by the courts. The object of issuing a notification under Section 4 of the Act is twofold. First, it is a public announcement by the government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the government for the "public purpose" mentioned therein; and secondly, it authorises the departmental officers or officers 11 of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the "public purpose" for which the acquisition proceedings are being commenced but also the "locality" where the land is situate with as full a description as possible of the land proposed to be acquired to enable the "interested" persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open to such persons to canvass the non-suitability of the land for the alleged "public purpose" also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad."
13. The requirement of law is to issue a notification under Section 4 of the Act in the manner indicated herein above and as per the law laid-down by the Apex Court, the requirement of notice or information to the public concerned has to be fulfilled and that too in appropriate manner. Whether a mere publication of notification is enough or something more is required to be done, has been clarified by the Apex Court in the case of Spl. Deputy Collector, Land Acquisition, C.M.D.A. (supra) in which dealing with such requirement, the Apex Court has held in Para 20 and onward thus :
"20. This leads us next to the consequences of publication of the notification in two newspapers having reasonably wide circulation and consequences of bona fide publication of the notification in two newspapers which do not have a wide circulation in the locality.
20.1) If there is failure to publish in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, without anything more, the notification under section 4(1) of the Act and the 12 consequential acquisition proceedings will be vitiated, on the ground of non-compliance with an essential condition of section 4(1) of the Act.
20.2) If the two newspapers carrying the publication of the notification have reasonably wide circulation in the locality, (apart from the publication of the notification in the Gazette and causing public notice of the substance of the notification to be given at convenient places in the locality), then the requirements of section 4(1) are complied with and all persons concerned in the locality shall be deemed to have notice of the notification. (For this purpose, the publication need not be in newspapers having the widest or largest circulation, but it is sufficient if the publication is in newspapers having reasonably wide circulation). In that event, neither the notification under section 4(1), nor the consequential acquisition proceedings would be open to challenge, on the ground of violation of section 4 of the Act.
20.3) If the newspapers in which the notification is published were circulating in the locality, but did not have a reasonably wide circulation in the locality, then neither the notification under section 4(1) nor the consequential acquisition proceedings, will become vitiated automatically.
If the person aggrieved, apart from demonstrating that the two newspapers did not have reasonably wide circulation in the locality, also asserts that as a consequence, he did not have notice of the proposed acquisition that was provided for in section 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to the extent of the land of such person will be vitiated. But if such assertion is rebutted by the acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the enquiry under section 5A of the Act), the acquisition will not be vitiated on the ground of violation of section 4A of the Act.
20.4) If the person challenging the acquisition is able to establish that the notifications were deliberate and with mala fides, published in newspapers having negligible circulation, to avoid notice to the persons concerned, then section 4(1) will be violated."13
14. The opportunity of hearing in such a case is not a mere formality but it has a deep routed cause and requirement. If violation of such mandatory provisions of law are brought to the notice of the court and if there is sufficient material available on record to prove such violation, the court will not sit tight over such an issue only because action of State or its authorities is said to be for public purpose. The Apex Court in dealing with such a situation in case of Hindustan Petroleum Corpn. Ltd. (supra) has held in paras 8 and 9 of the report thus :
"8. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also to the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Section 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non-compliance with the provisions of Section 5- A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision-making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well-known principles viz. illegality, irrationality and procedural impropriety.
Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.
9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right."
1415. From the aforesaid analysis, it is clear that the property rights of petitioner were grossly violated. Even when it was known to the respondents No.2 and 3 that they were required to enter the land of petitioner for the purposes of construction of stop dam or Barrage on the river, they should have informed the petitioner well in advance. While making the proposal for construction of dam a plan was made and was annexed and sent to the State authorities but neither the same was ever published nor exhibited to the people who were going to be affected. The notification itself subsequently issued is so vogue, nothing could be gathered from it. Thus, the respondents cannot shirk of their responsibility of breaking the law. However, this Court cannot close its eyes on other aspects also. As has been held by the Apex Court in the case of Competent Authority (supra) in para 14 of the report in such a situation, which reads thus :
"14. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance i.e. the construction of a national highway. The construction of a national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequences of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the landowners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the landowners. Quashing of the notification at this stage will give 15 rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the landowners, that is, the writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action."
16. Indeed it was a folly on the part of the respondents of not acquiring the land as per the provisions of the Act before initiating process of construction of the dam but the purpose behind such construction is obvious. The barrage is not being constructed for the purpose of amusement of the authorities of the respondent Corporation. The intention was to store water, preserve it for supply to the public at large at Katni city during summer period when there is acute shortage of drinking water. However, for this it would have been better if a detailed plan as was made, would have been communicated to the public at large, brought to the notice of the concerned persons whose land was going to be used for construction of such a barrage or dam. It would have been much much better in case the acquisition proceedings would have been completed expeditiously even exercising the power to take emergent possession of the land and then only to start construction. At any rate it was not permissible under the law to allow the respondents to start construction by entering upon the land of the petitioner without the consent of the petitioner. In normal course this Court would have taken serious view of this act and would have quashed all the actions taken by the respondents and would have directed demolition of the construction, but keeping in mind the interest of the public at large, the experience of sufferings of public at large at Katni for the last many years and the object of making such a barrage, it is not deemed necessary to direct demolition of construction of barrage or dam. If the land of the petitioner is used for the said purposes or it is required for 16 such construction, it would be proper to measure the acquired land of the petitioner appropriately, hear the petitioner and fix appropriate compensation in accordance with the market value prevalent today and to pay compensation of such land to the petitioner. For the act done in haste, the respondents are also liable to compensate the petitioner adequately.
17. For the aforesaid reasons and finding that such act of the respondents is grossly in violation of the Act, this writ petition succeeds to the extent that the respondents are directed to pay the compensation of the land of the petitioner, which is now used or which will be used for the purposes of construction of barrage/dam by measuring the said land required for the said purpose properly in presence of the petitioner and by fixing the compensation of the said land on the basis of the price of land prevalent in the market on the date the notification was issued by the respondents under Section 4 of the Act. The said amount of compensation be paid to the petitioner within a period of two months. The respondents will also pay Rs.50,000/- as damages to the petitioner for entering upon the land of the petitioner without his consent and for making use of the land of the petitioner for the purpose of construction of barrage/dam.
18. The writ petition stands allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K. Trivedi) Judge Skc