Chattisgarh High Court
Radhelal Rathiya vs Union Of India 36 Wpc/4466/2019 Rajesh ... on 6 December, 2019
Bench: P. R. Ramachandra Menon, Parth Prateem Sahu
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AFR
HIGH COURT OF CHHATTISGARH BILASPUR
Order Reserved on : 21.11.2019
Order Delivered on : 06.12.2019
Writ Petition (PIL) No. 126 of 2016
1. Radhelal Rathiya S/o Shri Bhag Singh Rathiya, Aged About
38 Years R/o Village Chodha, Tahsil Kharsiya, District
Raigarh Chhattisgarh
2. Hukum Chand Patel, S/o Late Purushottam Patel, Aged
About 62 Years R/o Village Bhelwadih, PS And Tahsil
Kharsiya, District Raigarh Chhattisgarh
3. Keshav Prasad Rathiya, S/o Shri Hiraram Rathiya, Aged
About 51 Years R/o Village Chodha, PS And Tahsil
Kharsiya, District Raigarh Chhattisgarh
4. Laxman Kumar Sahu, S/o Shri Mewalal Sahu, Aged About
45 Years R/o Village Gurda, PS And Tahsil Kharsiya, District
Raigarh Chhattisgarh
5. Khemlal Rathiya, S/o Late Arjun Rathiya, Aged About 27
Years R/o Village Gurda, PS And Tahsil Kharsiya, District
Raigarh Chhattisgarh
6. Ghanaram Dansena, S/o Shri Lachhiram Dansena, Aged
About 45 Years R/o Village Bhalunara, Post Dehjari, PS And
Tahsil Kharsiya, District Raigarh Chhattisgarh
7. Lav Kumar Dansena, S/o Shri Vishal Dansena, Aged About
58 Years R/o Village Banipathar, Post Chodha, PS And
Tahsil Kharsiya, District Raigarh. Civil And Revenue District
Raigarh Chhattisgarh
---- Petitioners
Versus
1. Union of India Through The Secretary, Ministry of Rail, New
Delhi
2. South East Central Railway, Bilaspur Through Its General
Manager, SECR, Bilaspur Chhattisgarh
3. Chhattisgarh East Railway Limited, Raigarh Through Its
General Manager
4. State of Chhattisgarh, Through The Secretary, Ministry of
Revenue And Disaster Management, Mahanadi Bhawan,
Mantralay, Naya Raipur, District Raipur Chhattisgarh
5. The Commissioner, Bilaspur, Division, Bilaspur Chhattisgarh
6. The Collector, District Raigarh Chhattisgarh
7. The Land Acquisition Officer / Sub Divisional Officer,
Kharsiya, District Raigarh Chhattisgarh
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8. South Eastern Coalfields Limited, Through Its Chairman-
Cum- Managing Director, Seepat Road, Bilaspur
Chhattisgarh
---- Respondents
For Petitioners : Shri B.P. Sharma, Shri M.L. Sakat and Shri Sameer Oraon, Advocate.
For Respondent No.1 : None
For Respondent No.2 : Shri Abhishek Sinha, Standing counsel
For Respondent No.3 : Dr. N.K. Shukla with Shri Anumeh
Shrivastava, Advocate
For Respondents 4 to 7 : Shri Alok Bakshi, Additional Advocate
/State General with Shri Gagan Tiwari, Deputy
Government Advocate
For Respondent No.8/SECL : Shri H.B. Agrawal, Senior Advocate with Shri Sudhir Bajpai, Advocate Hon'ble Shri P. R. Ramachandra Menon, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge C A V Order P.R. Ramachandra Menon, Chief Justice
1. This petition styled as 'Public Interest Litigation' has been filed by seven Petitioners, which originally was to challenge the acts and omissions on the part of Respondent/State authorities in acting contrary to the provisions of Chapter V of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('the Act of 2013', for short) in connection with the 'Rehabilitation and Resettlement Award' in respect of the displaced persons and/or affected families on acquisition of lands for construction of the East Rail Corridor Scheme. It was with regard to acquisition of lands in different 3 villages, namely, Mohapara, Gurda, Baanipathar, Chodha, Kukuracholi, Baramona, Bhalunara, Madanpur and Bhelwadih in Raigrah district, allegedly detrimental to the rights and interests of the agriculturists, dependents and workers who lost the lands and also the means of livelihood. There was also a challenge against a Circular dated 29.08.2016 (Annexure P/3) whereby the effect of earlier Circular dated 11/14.09.2015 (Annexure P/2) was nullified, stipulating that the rehabilitation will be available only in respect of persons whose lands came to be acquired, which according to the Petitioners, is not correct, as the term 'affected family' defined under the Act of 2013 is much wider.
2. The prayers raised earlier, were as given below :
"A. A writ and/or an order in the nature of writ of mandamus do issue calling for all the records relevant for disposal of the present case including record of East Rail Corridor Scheme and MoU/ agreement signed and land acquisition records of all the affected villages i.e. Mohapara, Gurda, Baanipathar, Chodha, KuKuracholi, Barmona, Bhalunara,Madanpur & Bhelwadih and action of the respondent authorities, if any, for rehabilitation of affected persons, for its kind perusal.
B. A writ and/or an order in the nature of writ of mandamus do issue commanding and directing the respondent authorities to rehabilitate, resettle all the affected persons of village Mahapara, Gurda, baanipathar, Chodha, Kukuracholi, Barmona, Bhalunara, Madanpur & 4 Bhelwadih etc. and in this regard pass an rehabilitation and resettlement award as per Chapter-v of the Act of 2013 including compensation of Rs. 5 lakhs by payment in the respective bank account of the affected villagers and take all other steps within the time frame fixed by this Hon'ble Court.
C. A writ and/or an order in the nature of writ of certiorari do issue quashing the circular dated 29.8.2016 annulling the circular dated 11/14-9- 2015 and in effect directing the respondent authorities to give effect to circular dated 11/14- 9-2015 within the time frame fixed by this Hon'ble Court in the facts & circumstances of case.
D. Any other relief which this Hon'ble Court deem fit in the facts & circumstances of case may also be granted.
E. Cost of the petition may also be awarded."
3. Subsequently, the Petitioners came up with the contention that they came to know only later, that the acquisition was actually based on the notification issued under the Railways Act, 1989 ('the Act of 1989' for short) and not under the Act of 2013. The writ petition was caused to be amended incorporating the said factual aspects in para-8.11 and seeking for a totally different prayer in paragraph-10AA in the following terms :
"10 AA:- A writ and/or an order in the nature of writ of certiorari be issued and quashing the entire acquisition proceedings be illegal and not in accordance the Chapter IVA of Railways Act, 5 1989 or alternately it is prayed that the respondent authority be directed to initiate acquisition proceedings afresh in view of investment already made and all the benefits as per provisions of chapter IVA."
4. As per the above amendment, the Petitioners sought to have a total twist, whereby the various prayers with reference to non-granting of benefits under the Act of 2013 in respect of rehabilitation and resettlement have been sidelined, virtually challenging the entire acquisition proceedings. It is contended that the proceedings pursued and finalized by the authority concerned was not a valid one; he being not the Competent authority defined under Section 2(7A) of the Act of 1989. As per the Act of 1989, particularly, by virtue of Chapter IV A in respect of land acquisition for a 'special railway project' as defined under Section 2(37A) of the Act of 1989, specific procedures have been prescribed including the power to acquire land under Section 20A, hearing of objections under Section 20D, declaration of acquisition under Section 20E and determination of compensation under Section 20F, etc. By virtue of the notification issued (Anneuxre P/2), the Competent authority has been notified as 'Additional Collector' and nobody else. Referring to Annexure P/1 proceedings of land acquisition, it is pointed out that the above proceedings were pursued, objections were heard and the matter was finalized by the 'Sub Divisional Officer' and not the Additional Collector (Competent authority) though the latter has subsequently 6 'approved' the same. It is contended that the entire proceedings, having not been pursued and finalized in terms of various provisions under Chapter IV of the Act of 1989, are null and void and hence, the acquisition is sought to be set aside or in the alternative, direction is sought to be given to the Respondents to pursue fresh steps in terms of the Act of 1989.
5. Returns have been filed from the part of the 1 st and 2nd Respondents, the 3rd Respondent/Consortium, which consists of the 2nd Respondent/Railways, 8th Respondent Company/SECL and Respondents No.4 to 7/State/Authorities as participants in the Consortium. Separate returns have been filed by Respondents No.4 to 7/State and also by the 8th Respondent Company/SECL; besides an additional return filed by the 3 rd Respondent/ Consortium in the course of the proceedings.
6. The crux of the contentions raised in the returns of the Respondents is that, the writ petition itself is not maintainable as the same is filed as a 'Public Interest Litigation', whereas the private/personal interest of the Petitioners is conceded in the writ petition; insofar as the lands of some of them have also been acquired and they are directly connected to the issue. It is further pointed out that no Public Interest Litigation will lie in land acquisition proceedings, as the very purpose of acquisition is for setting up the Railway Corridor, based on the notification issued by the Central Government in terms of the relevant provisions of the Act of 1989, involving public interest. It is also pointed out that 7 the acquisition proceedings were never challenged at any point of time, till the Awards were passed on different dates in 2015 and that no challenge will lie against the acquisition with reference to the alleged violation of the provisions of Chapter IV A of the Act of 1989 after passing the Awards. It is pointed out that, all the farmers whose lands were acquired have obtained the compensation pursuant to the Awards passed in their favour and no objection, protest or challenge has been raised by them. That apart, if at all the Petitioners or for that matter, any interested party/affected person is having any grievance with regard to the quantum of compensation or such other benefits payable under the relevant enactments, it is always open for them to raise such individual disputes before the appropriate authority in terms of the provisions of the Act. It is further pointed out that, for considering the grievance with regard to the rehabilitation and resettlement benefits, there is a separate authority as envisaged under Section 51 of the Act of 2013; adding that the State has already constituted such authority; that the grievance if any, can be projected before the said authority and hence that the writ petition is not maintainable.
7. We heard Shri B.P. Sharma, learned counsel appearing for the Petitioners, Dr. N.K. Shukla, learned senior counsel appearing for the 3rd Respondent, Shri Abhishek Sinha, learned standing counsel for the 2nd Respondents-Railways, Shri H.B. Agrawal, learned senior counsel appearing for the 8 th Respondent 8 and Shri Alok Bakshi, learned Additional Advocate General appearing on behalf of the Respondents No.4 to 7/State, at length.
8. It is conceded by the Petitioners in paragraph-3B of the writ petition, under the heading of "subject matter in brief" that, the Petitioners' lands have also been acquired along with other affected villagers and since larger public interest is involved, the Petitioners are not only seeking reliefs for themselves, but also against all the displaced villagers whose means of livelihood i.e. their agricultural lands, have been acquired for construction of Chhattisgarh East Rail Corridor.
9. In paragraph-3C(I) of the writ petition, the Petitioners further concede that the present writ petition under Article 226 of the Constitution of India is being filed by way of 'Public Interest Litigation' and the Petitioners have some personal interest as their lands are also involved in acquisition along with thousands of villagers of several villages mentioned therein. In paragraph-3C(III), the Petitioners contend that they are filing the writ petition on their own and not at the instance of somebody else. In paragraph-3C(V), it is stated that Petitioners have made various representations to the Respondent authorities for redressal of their grievance. The involvement of private interest of the Petitioners is further conceded in paragraph-8.1, where they state that the Petitioners are also holders of certain lands in their respective villages and are carrying on agricultural activities with 9 the help of their family members/ employees etc. However, the Petitioners have filed an affidavit dated 06.12.2016 as per Rule 79(4) of the High Court of Chhattisgarh Rules, 2007, in which, they have categorically asserted in paragraph-2 that they have not filed this petition for any personal gain or raising any personal grievance or for a private, ulterior, oblique motive or for extraneous considerations, and thus, seek for issuance of process in the petition filed as a 'Public Interest Litigation'; which virtually runs contrary to the previous averments and turns to be a paradox.
10. The Petitioners themselves having conceded of their 'private interest' in connection with the project before this Court, by virtue of the settled provisions of law, we hold that it is not liable to be entertained as a 'Public Interest Litigation'. We find support from the rulings rendered by the Apex Court in Dattaraj Nathuji Thaware v. State of Maharashtra and Others 1 and National Council for Civil Liberties v. Union of India and Others2. However, the question remains whether the personal grievance of the Petitioners could be considered by this Court with regard to the applicability of the relevant provisions of the Act, the benefits flowing therefrom, the nature of challenge raised and the extent of relief, if at all any, that can be granted, in the light of the contentions raised from the part of the Respondents opposing the reliefs sought for.
1 (2005) 1 SCC 590 2 (2007) 6 SCC 506 10
11. As mentioned already, the main relief sought for by the Petitioners earlier with reference to the acquisition of lands was as to the lapse/inaction on the part of the Respondent/State in not granting the 'rehabilitation and resettlement benefits' to the affected families. It is contended that the Petitioners/villagers were assured that they would not only be compensated in terms of the Act of 2013, but also that, they would be provided bonus and employment under the Rehabilitation Scheme and also a further compensation of Rs.5 Lacs as provided under the Scheme/Act.
12. A doubt arose when the matter was being considered by the Additional Collector, Jashpur, who sought for clarification vide letter dated 04.09.2015 from the Government, as to the eligibility to get the rehabilitation package, which was explained by the State as per Annexure P/2 Circular dated 11/14.09.2015, pointing out that, under the Second Schedule, for rehabilitation package, It was not necessary that the family must be a 'displaced family'. However, the position was turned upside down by a subsequent Circular dated 29.08.2016 (Annexure P/3) issued by the State, whereby reliance was placed on Section 16(2) of the Act of 2013 and said that only those persons will be entitled for benefits of Column No.4 of the Second Schedule, whose main source of livelihood was their agricultural land. The above Circular was sent to all the authorities concerned for proper compliance, as per Annexure P/4 dated 03.09.2016.
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13. It is the case of the Petitioners that strong protests were made from the part of the villagers, also involving agitations. It is stated that various representations were filed and assurances were made by the officers to pacify the villagers, that their grievance would be redressed (with reference to Annexure P/5 correspondence and Annexure P/6 news items published in the newspapers). With reference to definition of the term 'affected family' defined under Section 3(c) of the Act of 2013 and definition of such other terms and also the 'preamble' of the legislation, it is pointed out that the Act of 2013 is a beneficial piece of legislation and the doubt, if any, is to be resolved in favour of the affected persons.
14. Annexure P/3 Circular has been issued with reference to Section 16(2) of the Act of 2013, which provision is in Chapter IV of the Act of 2013 dealing with the 'notification and acquisition' and not for 'assessment of compensation or rehabilitation and resettlement award', which are included separately in Chapter V. It was pointed out that much time had already elapsed and that the process of rehabilitation and resettlement of the affected families had not begun and that the additional compensation of Rs.5 Lacs, as promised, was never given. It was also pleaded that the affected families were not provided with annuity or employment, subsistence grant, transport cost, cattle shed cost, petty shop cost, one time grant to artisan and small traders, resettlement allowances and no stamp duty/registration fee exemption 12 certificates were given; which made the Petitioners to approach this Court by filing the petition as 'Public Interest Litigation', as originally contended in the writ petition.
15. I.A. No. 7 of 2018 (an application for amendment of the writ petition) was filed seeking for amendment, much later in 2019 (amended on 28.01.2019) virtually taking a totally different stand contending that both the sides were under the impression that the proceedings were being pursued under the 'Act of 2013' and it was only recently that the Petitioners came to know that the acquisition was actually under the Act of 1989. It was in the said circumstance, that amendment was sought to be effected, with the contention in paragraph-8.11 and the additional prayer at paragraph-10AA, seeking to quash the entire land acquisition proceedings, for not having been pursued the same in terms of Chapter IV of the Act of 1989 or else, to direct the Respondents to start the proceedings under the Act of 2013 afresh.
16. With regard to the above contention raised by the Petitioners that they were not aware of the acquisition proceedings under the Act of 1989 (who allegedly came to know it only recently), it does not appear to be correct. Copies of the acquisition proceedings have been produced by the Petitioners themselves as Annexure P/1, where specific reference is made to the proceedings initiated being pursued under the Act of 1989, of course, with reference to the relevant provisions of the Act of 2013 to compute the compensation and such other benefits. Pursuant 13 to the directions issued by this Court on 04.04.2017, a copy of the original notification issued by the Central Government on 28.02.2014 has been produced as Annexure R/1. It is clearly evident that the notification was issued under Section 20A of the Act of 1989 and it is seen from such other proceedings produced as Annexure R/2 to R/4, that only two objections were received, which were considered and declaration was effected in terms of Section 20E of the Act of 1989, as borne by Annexure R/3. It was thereafter, that further proceedings were pursued with regard to the fixation of compensation and such other benefits and the matter was finalized accordingly, leading to the Awards passed on different dates in 2015. It is seen from the proceedings that, it was actually with involvement of the Competent authority, who has "approved and ordered" the same, as borne by the signature/endorsement in the relevant proceedings.
17. Admittedly, the Petitioners did not file any objections to the acquisition at any stage of proceedings and no copy of the such proceedings forms part of the record. Objections were filed only by two persons, which were considered and finalized and they have no grievance and have not approached this Court. It is specifically contended by the Respondents that, the Petitioners having not preferred any objection, cannot be heard to say that the objections preferred by others were not heard by the Competent authority appointed in terms of Section 7A of the Act of 1989. We find considerable force in the said submission; more so, 14 when this matter cannot be and is not being considered as a 'Public Interest Litigation' because of the admitted 'private interest' of the Petitioner. That apart, as held by the Apex Court in Nareshbhai Bhagubhai and Others v. Union of India and Others3, the scope of objections under Section 20D of the Act of 1989 is limited to the purpose for which the acquisition is made and it is not a general right as under Section 5A of the Act of 1894.
18. Insofar as notification for acquisition was issued by the Central Government in terms of Section 20A of the Act of 1989, followed by Section 20E declaration as per Annexure R/3-IV, the proceedings were finalized passing Awards, which stands approved by the Competent authority as defined under Section 2(7A) of the Act of 1989, we are of the view that there is 'substantial compliance' with the statutory provision, more so when the 'public purpose' behind the project is not questioned by the Petitioners in this writ petition. Further, the Petitioners admittedly have not chosen to challenge Annexure R-3/IV notification dated 15.12.2014 issued by the Central Government under Section 20A of the Act of 1989. They have also not challenged the Awards passed way back in the year 2015. Hence, they cannot raise any challenge against the acquisition proceedings, on the alleged ground of non-compliance with the provisions of Chapter IV A of the Act of 1989, at this stage. We hold the position against the Petitioners in this regard. 3 2019(10) Scale 811 15
19. Copies of some of the Awards have been produced by the Petitioners as per Annexure P/1; besides various communications/ representations/replies, which all refer to the relevant provisions of the Act of 1989 and also as to the computation of benefits by the authorities with reference to the statutory provisions of the Act of 2013. To have easy appreciation, paragraph-18 of one such Award dated 04.09.2015 passed by the authority concerned is reproduced below :
**18- Rknkuqlkj xzke&ekSgkikyh dh futh Hkwfe jdck 2-547 gs- Hkwfe ,ao Hkwfe ij fLFkr o`{k ,ao vU; laifRr dh ifjxf.kr eqvkotk jkf'k :- 1]03]09]125@& ¼,d djksM+ rhu yk[k ukS gtkj ,d lkS iPphl :i;s½ ftldk fu/kkZj.k uohu vf/kfu;e Hkwfe vtZu iquokZlu vkSj iquZO;oLFkkiu esa mfpr izfrdj vkSj ikjnf'kZrk dk vf/kdkj vf/kfu;e 2013 esa of.kZr izko/kkuksa ds vk/kkj ij izdj.k esa izkIr nkok vkifRr;ksa dk fujkdj.k djrs gq;s Hkkjrh; jsy vf/kfu;e 1989¼la'kksf/kr½ esa] of.kZr izko/kkuksa ds rgr dk;Zokgh ds izdze esa rS;kj fd;k x;k gSA blesa vk;qDr fcykliqj laHkkx fcykliqj }kjk iquokZl ;kstuk ds vuqeksnu gsrq fu/kkZfjr leLr 'krZ tks i= fnukad 27@02@2015 esa Li"V gS] bl izdj.k esa ykxw gksxkA N- x- 'kklu jkTkLo ,oa vkink izca/ku foHkkx ls tkjh ifji= vf/klwpuk fnukad 3 fnlcaj 2009 ,ao vkink izca/ku foHkkx jk;iqj ds i= dzekad ,Q 7&13@lkr&3@2010 jk;iqj fnukad 17 vxLr 2010 vuqlkj Hkw&vtZu ds izdj.kksa esa vkoZM dh jkf'k :i;s 1]03]09]125@&¼,d djksM+ rhu yk[k ukS gtkj ,d lkS iPphl :i;s½ :i;s gksrk gSA ifj;kstuk ds ekeys esa ;fn 5 djksM rd gksrh gS rks vuqeksnu gsrq ftyk dysDVj izkf/kd`r fd;s x;s gSAxzke ekSgkikyh ds izdj.k 16 esa vf/kxzfgr dh tk jgh Hkwfe ds eqvkotk jkf'k :i;s 1]03]03]125@&¼,d djksM+ rhu yk[k ukS gtkj ,d lkS iPphl :i;s½ vokMZ jkf'k gS] tks dysDVj egksn; ds vuqeksnu {ks=kf/kdkj varxZr gS] QyLo:i vuqeksnukFkZ gsrq izLrqr gSA izdj.k esa izkHkkforksa dks fn, tkus okys iquokZl uhfr ds ykHk ds lac/k esa izHkkfor ifjokjksa ds iquokZlu ckcr~ N-x- 'kklu jktLo ,ao vkink izca/ku foHkkx ds i= dzekad ,Q&7&3@lkr&1@2015 jk;iqj fnukad 27 tuojh 2015 esa fu/kkZfjr iath ij tkudkjh dk la/kkj.k jktLo foHkkx lafgr vf/kxzg.kdZrk foHkkx nf{k.k iwoZ e/; jsYos ¼bjdkWu bUVjus'kuy fyfeVsM½ }kjk Hkh fd;k tkuk vfuok;Z gksxkA rnukuqlkj vftZr dh tk jgh Hkwfe ds eqvkotk dh x.kuk gsrq iz=d 13 ,ao Hkwfe ij fLFkr laifRr;ksa ds fy, izi= 17] 17 [k rFkk ;ksx i=d 18 rS;kj dj layXu gS ftls vokMZ izfrosnu dk vax ekuk tkosxk] izdj.k esa izLrkfor vokMZ vuqeksnu i'pkr~ okil izkIrA rnuqlkj izdj.k es vokMZ vkns'k ikfjr fd;k tkrk gSA**
20. With regard to the extent of benefits payable with reference to the 'rehabilitation and resettlement' in terms of the Act of 2013, paragraph-2 of the clarification given by the State Government vide Annexure P/2 is as follows :
**2- mDr laca/k esa Li"V fd;k tkrk gS] fd vf/kfu;e] 2013 ds vuqlwph&2 dh dafMdk&4 esa nf'kZr okf"kZd ,ao fu;kstu dk fodYi Hkw&vtZu ls izHkkfor izR;sd ifjokj ds fy;s ykxw gksxk rFkk mUgsa Hkwfe dk eqvkotk ds lkFk^&lkFk dafMdk&4 esa nf'kZr 3 fodYiksa esa ls ,d fodYi dk ykHk Hkh iquZokl iSdst ds :i esa izkIr gksxkA bl iquZokl iSdst dk ykHk izkIr djus ds fy;s ifjokj dks foLFkkfir gksuk vko';d ugha gSA** 17
21. This, however, came to be modified as per the subsequent Circular/communication dated 29.08.2016 (Annexure P/3). Paragraphs-2 and 3 of the said Circular/communication read as follows :
**2@ foHkkxh; i= dzekad ,Q 4&167@lkr&1@2015] fnukad 14 flarcj 2015 }kjk funsZ'k tkjh fd, x, gSa] fd vuqlwph&nks dh df.Mdk&4 dk ykHk lHkh izHkkfor dqVwcksa dks izkIRk gksxkA bl laca/k esa dfri; ftyksa ls vyx&vyx fcUnqvksa ij ekxZn'kZu pkgk x;kA QyLo:i fof/k foHkkx ls vfHker ekaxk x;k] fd vuqlwph&nks dh df.Mdk&4 dk ykHk D;k lHkh izHkkfor dqVqcksa dks ns; gSa \ fof/k foHkkx }kjk fuEuqlkj vfHker fn;k x;k gS%& **Hkwfe vtZu] iquokZlu vkSj iquO;ZoLFkkiu esa mfpr izfrdj vkSj ikjnf'kZrk vf/kdkj vf/kfu;e] 2013 dh /kkjk 16¼2½ esa ;g Li"V izko/kkfur gS] fd%& iz'kkld mi&/kkjk ¼1½ ds v/khu losZ{k.k vkSj tux.kuk ds vk/kkj ij] fofgr fd, x, vuqlkj ,d izk:i iquokZlu vkSj iquO;ZoLFkkiu Ldhe rS;kj djsxk] ftles ,sls izR;sd Hkw&Lokeh vkSj Hkwfeghu dh iquokZlu vkSj iquO;ZoLFkkiu gdnkfj;ksa dh fof'kf"V;ka lfEefyr gksaxh] ftudh thfodk eq[; :i ls vftZr dh tk jgh Hkwfe;ksa ij fuHkZj gS vkSj tgka izHkkfor dqVqackas ds iquO;ZLFkkiu esa fuEufyf[kr varoZfyr gS& ¼,d½ iquO;ZLFkkiu {ks= es miyC/k djk;s tkus okys ljdkjh Hkouksa dh lwph] ¼nks½ ,slh yksd lq[k&lqfo/kkvkasa vkSj volajpukRed lqfo/kkvksa C;kSjs] tks iquO;ZoLFkkiu {ks= esa miyC/k djk;h tkuh gSA ** blh izdkj vf/kfu;e dh vuqlwph & **nks** dk izko/kku Hkh bl izdkj gS] fd ,sls rRoksa ds vfrfjDr tks 18 igyh vuqlwph esa micaf/kr gS] lHkh izHkkfor dqVqacksa ¼,sls HkwfeLokeh vkSj dqVwac nksuks ftudh thfodk eq[;r% vftZr Hkwfe ij fuHkZj gS½ ds fy, iquokZlu vkSj iquO;ZoLFkkiu dk gd gksxkA mDr izko/kku ls ;g Li"V gS( fd dsoy os gh ifjokj iquokZlu ds fy, ik=rk /kkfjr djsaxsA ftudh Hkwfe vtZu ds QyLo:i mudh vkthfodk izHkkfor gks jgh gksA** 3@ fof/k foHkkx ds mijksDr vfHker ds vk/kkj ij funsZf'kr fd;k tkrk gS] fd vf/kfu;e dh vuqlwph nks dh df.Mdk&4 dk ykHk dsoy mUgha izHkkfor dqVwacks dks ns; gksxk] ftudh thfodk izeq[k vftZr dh tkus okyh Hkwfe ij fuHkZj gSA bl laca/k es vf/kfu;e ds vU; izko/kku ;Fkkor gksaxsA foHkkxh; funsZ'k dzekad ,Q&4&167@lkr&1@2015] fnukWd 14 flracj] 2015 ,rn~}kjk fujLr fd;k tkrk gSA**
22. There is a contention for the Petitioners that, in respect of acquisition under the Act of 1989, the rehabilitation benefits shall be in terms of the 'National Rehabilitation and Resettlement Policy, 2007' notified by the Central Government, as specifically provided under Section 20-O of the Act of 1989. In the instant case, the 'National Policy' has been ignored and the 'State Policy' of the State of Chhattisgarh is sought to be given effect to, providing only lesser benefit, which is stated as not correct. Specific reference is made to Clause 7.7 of the 'National Policy', copy of which has been produced as Annexure R/3-2.
23. In response to the claim for additional compensation of Rs.5 Lacs payable to the Bank account to the affected villagers in terms of 'Rehabilitation and Resettlement Award' under Chapter V 19 of the Act of 2013, it is pointed out by the 3 rd Respondent that, as per Annexure R/3-2 amendment dated 04.01.2013, there is a substantial change in the Rehabilitation and Resettlement Scheme in respect of "linear acquisitions". There is a similar provision with regard to the 'linear acquisition' in the Act of 1989 as well; which stands different from the normal/other type of acquisition. 'Linear acquisition' is mostly in connection with the construction and widening of the roads, railway lines etc. The properties involved herein are agricultural properties, as pointed out by the Respondents and according to them, no displacement has been actually effected so as to enable the Petitioners to claim more benefits than the extent already extended.
24. It has been asserted by the State/Respondents No.4 to 7 in the return dated 30.06.2017 that, out of 397 farmers whose lands have been acquired, 361 farmers have accepted the amounts awarded in their favour. Among them, it is pointed out that 36 farmers could not take away the amounts because of some ownership disputes and such other reasons. A detailed chart pertaining to Railway Corridor Scheme prepared as on 27.06.2016 in connection with the lands and the rehabilitation compensation has been produced as Annexure R/2; adding that, as per Clause 7.7 introduced in the Chhattisgarh Rajya Ki Adarsh Punarvas Niti, 2007 as per Annexure R/3 notification dated 04.01.2017, in addition to the normal compensation payable, 50% of the same (subject to a maximum Rs.5 Lacs) has been provided 20 to be paid as rehabilitation compensation, which is stated as calculated and awarded in the case of all the 397 affected farmers.
25. In response to the contention of the Petitioners that the benefits flowing from the 'National Policy' shall be made applicable under the Act of 1989 and not the 'State Policy', which is less beneficial, the version of the 3rd Respondent/Consortium as given in paragraph-2(v) is in the following terms :
"2(v). That the answering respondent at this juncture would submit that it is merely as SPV, entrusted with execution of the prestigious rail corridor. So far as the quantum of the compensation and R& R policy is concerned, it is bound by the direction of the state authorities and not by the answering respondents. What so ever amount is calculated in any head stipulated in the 2013 Act, the answering respondent is duty bound to deposit the same with the disbursing authority. Thus, the answering respondent is not a necessary or proper party to the present lis, and hence deserves to be deleted from the cause title alongwith costs on the petitioners."
26. The 3rd Respondent concedes that, whatever be the amount calculated by the State authorities, the 3 rd Respondent is duty bound to deposit the same with the disbursing authority. However, in paragraph-4 of the additional return dated 02.07.2019 filed on behalf of the Respondents No.4 to 7, it is stated that, the 21 rehabilitation compensation has been worked out as per the 'State Policy'. The said paragraph-4 reads as follows :
"4. That while awarding compensation to the affected persons specifically for rehabilitation, the Chhattisgarh Rehabilitation and Resettlement Policy, 2007 (as amended from time to time) has been adhered to and the same is reflected from the perusal of land acquisition proceedings."
The 3rd Respondent, in the reply dated 02.08.2019 to the amended writ petition extracts Section 20-O of the Act of 1989 with regard to the application of National Rehabilitation and Resettlement Policy, 2007 to persons affected due to acquisition of the lands under the Act of 1989 and concedes that the said Respondent is always ready and willing to comply with the provisions of Section 20-O of the Act of 1989, which incorporates the 'National Policy, 2007'.
27. In the reply dated 19.08.2019 filed by Respondents No.1 and 2, the course and events pursued in terms of the Act of 1989 in connection with the acquisition for the project has been explained, which was started in the year 2014. After taking over the possession, the work was commenced in 2015 and it is pointed out that there is inordinate delay in filing the writ petition, virtually two years after commencement of work; besides various contentions on merits. It is also stated therein that about 90% of the work has already been completed and that, the project is not 22 liable to be interdicted at this stage, which otherwise would be detrimental to national interest, besides causing huge loss and damage to the national economy.
28. Similar submission is made from the part of the other Respondents, as highlighted during the course of arguments, pointing out that the Petitioners' land writ regard to the dispute raised herein is only in respect of a small portion of the Corridor (less than 10% of the total acquisition) having a total stretch of 103 kms. The acquisition proceedings hence cannot be challenged by the Petitioners, more so when the Petitioners have not challenged the notification under Section 20A of the Act of 1989, declaration under Section 20E of the said Act, and the Awards passed which stand accepted by the parties concerned. Almost similar situation writ regard to the prayer to quash the acquisition proceedings for not passing an order after considering the objections filed under Section 20D of the Act of 1989 had come up for consideration of the Apex Court in Nareshbai Bhagubhai (supra). A finding was rendered on non-compliance with the statutory provision. Still, considering the larger public interest, which was not questioned, prayer to quash the acquisition proceedings was declined as clearly discernible from paragraphs-12 and 13 of the verdict, which are reproduced below, for easy reference :
"12. The issue which remains to be decided is that in the absence of an order passed on the objections under Section 20D, should the 23 consequential steps be invalidated.
We find that the challenge before this Court has been made by the Appellants with respect to a stretch of land admeasuring approximately 6 kms, out of the total stretch of 131 kms. The remaining stretch of land comprising of 125 kms has been acquired, and stands vested in the Government. The Respondents have stated on Affidavit that pre- construction activity and earth work has been completed on most parts of the stretch. Furthermore, most of the bridges are either in progress, or have already been completed.
The Senior Counsel representing the Appellants in all the present Civil Appeals, after taking instructions from his clients, submitted that since the land was being acquired for a public utility project, his clients would be satisfied if they were granted compensation by awarding the current rate for acquisition of land.
Admittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, Gujarat.
In these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose 24 on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action.
In Savitri Devi v. State of U.P. & Ors., (2015) 7 SCC 21, this Court held that:
"Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the land owners, developments have taken in these villages and in most of the cases, third party rights have been created. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (supra) came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the land owners in the form of compensation as well as allotment of developed Abadi land at a higher rate i.e. 10% of the land acquired of each of the land owners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively."25
(emphasis supplied) In the present case, the relief is being moulded by granting compensation to the Appellants, to be assessed under Section 20G of the said Act as per the current market value of the land. The Competent Authority is directed to compute the amount of compensation on the basis of the current market value of the land, which may be determined with reference to Section 20G(2) of the Act.
13. With respect to the remaining 125 kms stretch of land, the land-owners were satisfied with the amount awarded, and have not approached this Court.
Under these circumstances, despite our finding that the Respondents have breached the mandatory provisions of the Act, we do not think this is a fit case to set aside the entire acquisition proceedings.
The relief granted in the present case is confined to the Appellants herein, and would not become a precedent for other land-owners who have not challenged the acquisition proceedings before this Court."
In the instant case, admittedly, no objection was ever filed by the Petitioners under Section 20D of the Act of 1989. We have already held that there is 'Substantial Compliance' with the statutory provisions by the Competent authority. Hence, the challenge is not liable to be sustained on the above ground. 26
29. In support of the contention of the Petitioners that the land acquisition proceedings are required to be quashed for not being in conformity with the provisions of Chapter IV A of the Act of 1989, the Petitioners contend that the proceedings were pursued and finalized by the authorities under the 'Act of 2013' and not under the Act of 1989; adding that, there is a specific bar as to the applicability of the Land Acquisition Act as mentioned under Section 20N of the Act of 1989. Contentions are also raised with reference to Section 105(3) of the 'Act of 2013', which excludes the provisions of said Act to an acquisition in respect of the entries in the Fourth Schedule (which includes the 'Act of 1989' (the Railways Act) as well). Section 105 reads as follows :
"105. Provisions of this Act not to apply in certain cases or to apply with certain modifications.-(1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of section
106, the Central Government may, by
notification, omit or add to any of the
enactments specified in the Fourth Schedule.
(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected 27 families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament."
30. Sub-section (1) of Section 105 says that, subject to sub- section (3), the provisions of the said Act shall not apply to the enactments relating to land acquisition in respect of entries in the Fourth Schedule. Sub-section (3) however enables the Government to issue notification to make the provisions of the Act of 2013 applicable for computation of compensation, rehabilitation, resettlement etc. even in respect of acquisition for the entries under the Fourth Schedule, however, stipulating in 28 crystal-clear terms that such exceptions or modifications shall not reduce the compensation or dilute the provisions of the Act of 2013 relating to compensation or rehabilitation and resettlement.
31. It is pointed out from the part of the 3 rd Respondent/ Consortium that, instead of issuing the notification under Section 105(3) of the Act of 2013 so as to make the provisions applicable to the entries in the Fourth Schedule, the Central Government had issued notification dated 16.12.2013 vide Annexure R/3-I, followed by notifications dated 08.01.2015, 28.02.2014 and 15.12.2014 (Annexures R/3-II, R/3-III and R/3-IV) making the provisions applicable in respect of such entries. Subsequently, in exercise of the power under Section 113(1) of the Act of 2013, a notification was issued to remove the difficulties; stipulating that provisions of the 'Act of 2013' shall stand extended to the entries in the Fourth Schedule as well. The said section reads as follows :
"113. Power to remove difficulties.-(1) If any difficulty arises in giving effect to the provisions of this Part, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty:
Provided that no such power shall be exercised after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament."29
32. The power to remove the difficulties is only to give effect to the provisions of the 'Act of 2013', so far as it is not inconsistent with the provisions of the said Act and to the extent it is necessary or expedient for removal of the difficulty. When Section 105(1) specifically says that, subject to sub-section (3), the provisions of the Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule and since no notification has been issued by the Central Government in terms of sub-section (3) of Section 105 (making it applicable to appropriate extent), how an order can be issued in terms of Section 113(1) of the Act of 2013, making the provisions applicable to the entries in the Fourth Schedule contrary to sub- section (1) of Section 105 without issuing a notification in terms of sub-section (3) of Section 105 is not properly answered.
33. However, the fact remains that the Scheme of the Act of 2013, particularly as stipulated under sub-section (3) of Section 105 clearly reveals that, the intention of the law makers is to ensure that the compensation or rehabilitation and resettlement benefits provided under the Act of 2013 shall not be diluted even by drawing exceptions or modifications while issuing a notification referring to applicability of the provisions of the Act of 2013 in respect of the land acquisition specified in the Fourth Schedule. Thus, reading the provisions together i.e. Section 105 and Section 113, it is clear that the Act of 2013 being a beneficial legislation, the rights and interests of the affected parties to the requisite 30 extent, are not liable to be reduced or watered-down.
34. Coming to Section 20-O of the Act of 1989, it reads as follows :
"20-O. Application of the National Rehabilitation and Resettlement Policy, 2007 to persons affected due to land acquisition.-
The provisions of the National Rehabilitation and Resettlement Policy, 2007 for project affected families, notified by the Government of India in the Ministry of Rural Development vide number F. 26011/4/2007- LRD dated the 31st October, 2007, shall apply in respect of acquisition of land by the Central Government under this Act."
On reading of the said provision in the light of the Scheme of the said statute and also the Scheme of the 'Act of 2013', in particular, Section 105 of the Act of 2013, it cannot but be held that the non- applicability of the provisions in the Act of 2013 is only with regard to the procedure for acquisition of land as mentioned therein and not with regard to the fixation of compensation or such other benefits as flowing therefrom.
35. In the above context, it is relevant to have look at the recent verdict rendered by Hon'ble Supreme Court in the matter of Union of India and Another v. Tarsem Singh and Others 4. It was a case, which involved acquisition in terms of the provisions of the National Highways Act, 1956 ('the Act of 1956', for short). 4 (2019) 9 SCC 304 31 'Section 3J' of the Act of 1956 stipulated that the provisions of the Land Acquisition Act, 1894 ('the Act of 1894' for short) shall not be applicable to the acquisition under the Act of 1956. The compensation fixed in the said case was far below the amount payable under the Act of 1894 and hence, the same was subjected to challenge; ultimately taking up the matter to the Apex Court. The matter was dealt with elaborately and after hearing, the Apex Court held that the rights and liberties of the citizen in relation to his property, when compulsorily acquired, cannot be detrimental to such rights as flowing from the Act of 1894 and that, the claimant was entitled to have compensation as payable under the Act of 1894. It was accordingly held that Section 3J of the Act of 1956 was ultra vires to the Constitution and accordingly, the said provision was set aside.
36. Coming to the case in hand, as mentioned already, the Act of 1989 is an Entry at Sl.No.13, as given in the Fourth Schedule of the Act of 2013. Section 20A of the Act of 1989 says that provisions of the Land Acquisition Act are not applicable to the land acquisition under the Act of 1989. The National Highways Act, 1956 is also included in the Fourth Schedule (at Entry N.7). Though the vires of the provision i.e. Section '20N' (which says that the Land Acquisition Act, 1894 is not applicable) is not under challenge in the writ petition, it cannot be pressed into service in view of the law laid down by the Apex Court while striking down Section 3J of the National High Act, 1956 as ultra vires to the 32 Constitution and declaring the right of citizen to get compensation in terms of the Land Acquisition Act. The bar can only be in respect of procedural aspects and not to take away or reduce the rights and liberties of the citizen for getting adequate compensation in terms of the law governing acquisition, which as on date is the 'Act of 2013'. This is more evident from Section 105 of the Act of 2013 as extracted and discussed above.
37. With regard to the rehabilitation and resettlement benefits and the scope of Circulars issued by the State Government, vide Annexures P/2 and P/3, there cannot be any Circular or instruction contrary to the mandate of the statute. The term 'Affected family' in Section 3(c) of the Act of 2013 is an inclusive definition. The terms 'Displaced family' defined under Section 3(k) and the term 'Persons interested' defined under Section 3(x) of the Act of 2013 are also relevant to be noted, as extracted below :
"3. Definition.-In this Act, unless the context otherwise requires,--
* * * *
(c) "affected family" includes--
(i) a family whose land or other immovable property has been acquired;
(ii) a family which does not own any land but a member or members of such family may be agricultural labourers, tenants including any form of tenancy or holding of usufruct right, share-croppers or artisans or who may be working in the affected area for three years prior to the acquisition of 33 the land, whose primary source of livelihood stand affected by the acquisition of land;
(iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of their forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) due to acquisition of land;
(iv) family whose primary source of livelihood for three years prior to the acquisition of the land is dependent on forests or water bodies and includes gatherers of forest produce, hunters, fisher folk and boatmen and such livelihood is affected due to acquisition of land;
(v) a member of the family who has been assigned land by the State Government or the Central Government under any of its schemes and such land is under acquisition;
(vi) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land;"
"Displaced family" defined separately in Section 3(k) of the Act of 2013, which reads as under :
"3(k) "displaced family" means any family, who 34 on account of acquisition of land has to be relocated and resettled from the affected area to the resettlement area;"
"Person interested" has been defined in Section 3(x) of the Act of 2013, which reads as under :
"(x) "person interested" means--
(i) all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act;
(ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007);
(iii) a person interested in an easement affecting the land;
(iv) persons having tenancy rights under the relevant State laws including share-
croppers by whatever name they may be called; and
(v) any person whose primary source of livelihood is likely to be adversely affected;"
38. From the above, it is quite evident that 'Act of 2013' extends benefits not only to the land owners whose lands are acquired under the said Act, but also to some other classes/categories as well, as provided in the statute. Insofar as the Act contemplates extension of 'rehabilitation and resettlement benefits' to different segments, to the requisite extent as provided in the Act, it shall be ensured to be extended to such different 35 segments, to the appropriate extent, by the authorities concerned, which cannot be modified or reduced detrimental to their rights and interests. As it stands so, we need not go in to the correctness or otherwise of the Circulars, but for holding that the benefits provided under the Act have to be extended to the beneficiaries concerned, to the extent as provided under the Act and if there is any deficit in this regard, it is open for the parties concerned to bring about their case before the authority constituted under Section 51 of the Act of 2013. It is for the said authority to consider the facts and figures and to pass appropriate orders/Awards on the basis of the materials produced, which exercise cannot be done by this Court by invoking jurisdiction under Article 226 of the Constitution of India. We declare the legal position accordingly.
39. In the light of above discussions, we are of the view that the eligibility of the Petitioners to get compensation, rehabilitation and resettlement benefits pursuant to the notification issued by the Central Government under the Act of 1989 and the proceedings finalized by the State authorities awarding the compensation/benefits in accordance with the provisions of the Act of 2013, are not liable to be interdicted. However, it is made clear that the extent of rehabilitation and resettlement benefits, if lesser than the extent as obtainable to them in terms of the 'National Policy' as envisaged under Section 20-O of the Act of 1989, it is liable to be topped up, once appropriate proceedings 36 are pursued by the Petitioners before the authority concerned i.e. the authority in terms of Section 51 of the Act of 2013, more so, in view of the legal position conceded from the part of the 3 rd Respondent/Consortium in the return/additional return as already extracted and mentioned above, to the effect that the Petitioners are entitled to have the benefit of the 'National Policy' and that the said Respondent is ready and bound to effect deposit in terms thereof, if so awarded by the authority concerned.
40. The writ petition stands disposed off with the above declaration and directions. No costs.
Sd/- Sd/-
(P. R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
Anu