Himachal Pradesh High Court
Unknown vs Rt on 23 June, 2016
Bench: Chief Justice, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.912 of 2007 with CWP No.996 of 2007, CWP No.2949 of 2009, CWP No.481 of 2010, CWP No.2293 of 2010, CWP No.7915 of 2010, CWP .
No.9137 of 2011, CWP No.9442 of 2011, CWP No.10497 of 2011 & CWP No.10581 of 2011.
Reserved on: 31.03.2016 Date of Decision : June 23, 2016.
1. CWP No.912 of 2007 of Munshi Ram and others ...Petitioners.
Versus rt State of Himachal Pradesh & Ors. ...Respondents.
2. CWP No.996 of 2007 Narotam Singh & others ...Petitioners.
Versus State of Himachal Pradesh & Ors. ...Respondents.
3. CWP No.2949 of 2009 Prem Lal & others ...Petitioners.
Versus
State of Himachal Pradesh & Ors. ...Respondents.
4. CWP No.481 of 2010
Chuni Lal & others ...Petitioners.
Versus
State of Himachal Pradesh & Ors. ...Respondents.
5. CWP No.2293 of 2010
Ram Singh & Ors. ...Petitioners.
Versus
State of Himachal Pradesh & Ors. ...Respondents.
6. CWP No.7915 of 2010
Jagarnath & Ors. ...Petitioners.
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CWP No. 912 of 2007 & connected matters.
Versus State of Himachal Pradesh & Ors. ...Respondents.
7. CWP No.9137 of 2011.
Mast Ram & Ors. ...Petitioners.
Versus
State of Himachal Pradesh & Ors. ...Respondents.
8. CWP No.9442 of 2011
Prem Lal Sharma & Ors. ...Petitioners.
Versus
of
State of Himachal Pradesh & Ors. ...Respondents.
9. CWP No.10497 of 2011
Puran Chand & others ...Petitioners.
rt Versus
State of Himachal Pradesh & Ors. ...Respondents.
10. CWP No.10581 of 2011
Narpat Ram & Ors. ...Petitioners.
Versus
State of Himachal Pradesh & Ors. ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
Appearing Counsels:
CWP No.912 of 2007 & 996 of 2007:
For the Petitioners: Mr. J.S.Bhogal, Sr. Advocate with Mr. Nand Lal Chauhan, Advocate.
For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...3...
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and Mr. J.K.Verma, Deputy Advocate General for respondents No. 1,2, 4 and 6. .
Mr. Lokender Paul Thakur, Central Government Standing Counsel, for respondent No.3.
Mr. Manish Sharma, counsel, for
respondent No.5.
of
Mr. R.L.Sood, Senior Advocate with Mr. Anand Sharma and Mr.Arjun Lall, counsel for respondent No.7.
rt CWP No.2949 of 2009 & CWP No. 481 of 2010: For the Petitioners: Mr. J.S.Bhogal, Sr. Advocate with Mr. Nand Lal Chauhan, Advocate.
For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K.Verma, Deputy Advocate General for respondents No. 1 and 2.
Mr. R.L.Sood, Senior Advocate with Mr.Anand Sharma and Mr. Arjun Lall, counsel for respondents No. 3 and 4. CWP No. 2293 of 2010:
For the Petitioners: Mr. J.S.Bhogal, Sr. Advocate with Mr. Nand Lal Chauhan, Advocate.
For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K.Verma, Deputy Advocate General for respondents No. 1 and 2.::: Downloaded on - 15/04/2017 20:39:14 :::HCHP
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CWP No. 912 of 2007 & connected matters.
Mr. R.Venkataramani & Mr. K.D.Sood, Sr. Advocates with M/s Surender Kumar Gupta & Sanjeev Sood, Advocates, for respondent No.3.
.
Mr.Lokender Paul Thakur, Central Government Standing Counsel, for respondent No.4.
Mr.Manish Sharma, counsel, for
respondent No.5.
of
CWP Nos.7915 of 2010, 9442 & 10581 of 2011:
For the Petitioners: Mr. J.S.Bhogal, Sr. Advocate with
rt Mr. Nand Lal Chauhan, Advocate.
For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K.Verma, Deputy Advocate General for respondents No. 1 and 2.
Mr. K.D.Sood, Sr. Advocate with Mr. Sanjeev Sood, Advocate, for respondent No.3.
Mr. Lokender Paul Thakur, Central Government Standing Counsel, for respondent No.4.
Mr. Manish Sharma, counsel, for
respondent No.5.
CWP No. 9137 of 2011:
For the Petitioners: Mr. Y.Paul, Advocate.
For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...5...
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and Mr. J.K.Verma, Deputy Advocate General for respondents No. 1 and 2.
Mr. K.D.Sood, Sr. Advocate with Mr. .
Sanjeev Sood, Advocate, for respondent No.3.
CWP No.10497 of 2011:
For the Petitioners: Mr.Ajay Kumar, Sr. Advocate with Mr.Pramod Negi, Advocate.
of For the Respondents: Mr.Shrawan Dogra, Advocate General with Mr.Anup Rattan & Mr. Romesh rt Verma, Additional Advocate Generals and Mr.J.K.Verma, Deputy Advocate General for respondents No. 1 and 2.
Mr.K.D.Sood, Sr.Advocate with
Mr.Sanjeev Sood, Advocate, for
respondent No.3.
Sureshwar Thakur, Judge
CWP No.2293 of 2010, alongwith CWP Nos.7915 of 2010, 9137, 9442 & 10581 of 2011
1. Through the instant writ petitions, the petitioners pray for quashing of notification under Section 4 of the Land Acquisition Act (hereinafter for short referred to as 'the Act') issued on 5.3.2009 by respondent No.1 comprised in Annexure P-1, they also pray for quashing of report borne on Annexure P-3 submitted by the Collector ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...6...
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concerned under Section 5A of the Act besides quashing of Annexure P-4 comprising notifications of 2.3.2010 issued .
by the competent authority under Sections 6 and 7 of the Act.
2. The learned counsel appearing for the petitioners contends of the initiation of proceedings by the appropriate of Government for bringing to acquisition the lands of the land owners besides in consummation thereof for the benefit of the rt cement companies respectively nomenclatured as M/s.Jai Parkash Associates Ltd., M/s.Ambuja Cement Ltd. for securing validation from this Court enjoined strict compliance by the appropriate Government with the mandate of the apposite provisions engrafted in the Land Acquisition (Companies) Rules, 1963 (hereinafter for short referred to as 'the Companies Rules') specifically with the ones incorporated in Rule 4 thereof, provisions whereof stand extracted herein-
after:-
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"4. Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings:
(1) Whenever a company makes an application to the .
appropriate Government for acquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namely:--
(i) That the company has made its best endeavour to find out lands in the locality suitable for the purpose of of the acquisition;
(ii) That the company has made all reasonable efforts to get such lands by negotiation with the rt person interested therein on payment of reasonable price and such efforts have failed;
(iii) That the land proposed to be acquired is suitable for the purpose;
(iv) That the area of land proposed to be acquired is not excessive;
(v) That the company is in a position to utilise the land expeditiously; and
(vi) Where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.
(2) The Collector shall, after giving the company a reasonable opportunity, to make any representation in this behalf, hold an enquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall :--::: Downloaded on - 15/04/2017 20:39:14 :::HCHP
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(i) In any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the district whether or not such .
land is good agricultural land;
(ii) Determine, having regard to the provisions of sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land, which, in the opinion of the Collector, should be acquired for the company; and of
(iii) Ascertain whether the company offered a reasonable price (not being less than the rt compensation so determined), to interested in the land proposed to be acquired.
the persons Explanation.-- For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land.
(3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same be forwarded by that Government to the Committee.
(4) No declaration shall be made by the appropriate Government under section 6 of the Act unless--
(i) The appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under section 5A of the Act; and ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...9...
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(ii) The agreement under section 41 of the Act has been executed by the company."
.
3. Since the mandate of the afore-referred apposite rules embodied in the Companies Rules stand palpably unadhered to besides unsatiated by the appropriate of Government comprised in its demonstrably transgressing the mandate of the apposite rules embodied in the Companies rt Rules, peremptorily entail an irrefragable obligation upon it to preceding its issuing a notification under Section 4 of the Act to hold an objective opinion qua satiation qua the parameters/conditions encapsulated therein standing begotten, whereas palpable non-satiation thereof by the appropriate Government prior to its issuing the apposite notification under Section 4 of the Act renders hence the notification issued by the appropriate Government under Section 4 of the Act besides subsequent notifications issued by it under Section 6 and 7 of the Act to stand vitiated, vitiation whereof is both unrectifiable and also incurable. Imperatively hence it has a cascading invalidatory effect upon notifications issued under Section 4 besides upon ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...10...
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notifications issued under Sections 6 and 7 of the Act preeminently when the inquiry embarked upon by the .
appropriate Government qua the facets incorporated therein stands statutorily peremptorily ordained to precede the issuance of notifications by it under Sections 4, 6 and 7 of the Act. In making the aforesaid submission before this Court, the of learned counsel for the petitioners has placed reliance upon a judgment of Hon'ble Apex Court reported in Devinder Singh rt & Ors. versus State of Punjab & Ors., AIR 2008 SC 261, paragraphs 47 to 55 stand extracted herein-after:-
"47. Repelling a contention that the provisions of Sections 6 to 37 are not required to be complied with in view of Section 39 thereof, it was held:
"This Section, in our opinion, has no relevance for determining whether to be a proper acquisition, enquiry contemplated under Rule 4 must precede issuance of the notification under Section 4 of the Act."
48. The lands in question are recorded as Shahi lands. It is not in dispute that they are agricultural lands. The Act contemplates that such lands may not be acquired.
49. We may notice that in Collector (District Magistrate) Allahabad and Another etc. v. Raja Ram Jaiswal etc., (1985) 3 SCC 1] this Court held that such a contention requires an indepth study, stating :
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"27. The validity of the impugned notification was also challenged on the ground that even though the acquisition is for the Sammelan, a company, the .
notification was issued without first complying with the provisions of Rule 4 of the Land Acquisition (Companies) Rules, 1963. The High Court has negatived this challenge. We must frankly confess that the contention canvassed by Mr. Nariman in this behalf would necessitate an indepth examination of the contention. However, we consider it unnecessary in this of case to undertake this exercise because the judgment of the High Court is being upheld for the additional reason that the acquisition in this case was mala fide.
rtTherefore, we do not
contention under this head."
propose to examine the
It is, on that premise, we have undertaken some study in this behalf.
50. The decision of this Court in Somawanti (supra) holding that the stage at which Rule 4 is required to be complied with is not the stage prior to issuance of a notification under Section 4 of the Act, but declaration under Section 6 does not appear to be correct from the decisions of this Court in Patel Chaturbhai Narsibhai (supra) and Wahab Uddin (supra), the earlier binding precedent, with utmost respect, having not been taken into consideration in its entirety.
51. In Abdul Husein Tayabali & Others v. State of Gujarat & Others 1968 (1) SCR 597], this Court observed :
"Next it was urged that the inquiry under Rule 4 has to be held after the notification under section 4 is issued and not before and therefore the inquiry held by Master was not valid. We do not find anything in Rule 4 or in any other Rule to warrant such a proposition. The inquiry, the report to be ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...12...
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made consequent upon such inquiry, obtaining the opinion of the Land Acquisition Committee, all these are intended to enable the Government to come to a tentative conclusion .
that the lands in question are or are likely to be needed for a public purpose and to issue thereafter section 4 notification."
52. In Srinivasa Cooperative House Building Society Ltd. v. Madam Gurumurthy Sastry and Others [(1994) 4 SCC 675], noticing Somavanti (supra) wherein it was held that the manufacturing of the articles was for the benefit of the community and to save of substantive part of foreign exchange and staff quarters to workmen, it was held :
"On the other hand, in the case of an acquisition for a rt company, the compensation has to be paid by the company. In such a case there can be an agreement under Section 41 for transfer of the land acquired by the Government to the company on payment of the cost of acquisition, as also other matters. The agreement contemplated by Section 41 is to be entered into between the company and the appropriate Government only after the latter is satisfied about the purpose of the proposed acquisition, and subject to the condition precedent that the previous consent of the appropriate Government has been given to the acquisition. Section 6 is in terms, made subject to the provisions of Part VII of the Act.
The declaration for acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. In the case of an acquisition for a company simipliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...13...
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that the cost of acquisition should be borne, wholly or in part, out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the .
Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition, for a company is to be made at the cost entirely of the company itself, such an acquisition comes under the provisions of Part VII."
53. The approach of the High Court in this behalf, in our opinion, is totally erroneous. A provision of a statute is either mandatory of or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an rt imperative one.
54. In this case admittedly there has been no compliance of Rule
4. If Rule 4 has not been complied with, the exercise of jurisdiction under Part VII must be held to have been erroneous. [55] For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeals are allowed with costs. Counsel's fee assessed at Rs.25,000/- (Rupees twenty five thousand only)."
4. He has further proceeded to canvass before this Court of with a legal frailty gripping the notification issued under Section 4 of the Act by the appropriate Government wherein it notified the land of the land owners to stand subjected to initiation of proceedings for their acquisition for facilitating the cement companies to exploit the mineral wealth held therein, the said illegality cannot stand undone or rectified ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...14...
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by any subsequent declaration or notification issued by the appropriate Government under the Act. In making the .
aforesaid submission, he relies upon a judgment of the Hon'ble Apex Court reported in Pranita Powerloom Cooperative Society Limited versus State of Maharashtra & Ors., 2009 (12) SCC 652, relevant Paragraphs 50 and 57 whereof of stand extracted herein-after:-
"50.
rt Again the High Court completely ignored the fact that this was not at least till that time an acquisition under Chapter II of the. Act as the Co-
operative Society was nothing but a company and the necessary condition of the contribution by the State Government was not till then fulfilled as the State Government had indeed not contributed nor had it agreed to contribute so as to give a colour that the land acquisition was for the public purpose.
57. In these circumstances, we are of the clear opinion that merely because section 5-A enquiry is pending and merely because the objection can be taken by the petitioners, the respondents by themselves will not be able to cure the illegality committed in the issuance of section 4 Notification."::: Downloaded on - 15/04/2017 20:39:14 :::HCHP
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5. He also proceeds to make a submission before this Court of the land owners whose lands stood notified by the .
appropriate Government to face initiation of proceedings for their acquisition for the benefit of the cement companies holding an inherent right to participate besides being heard in the inquiry carried under Rule 4 of the Companies Rules yet of when the mandate of Rule 4 of the Companies Rules stood infringed by the appropriate Government, as a corollary when rt the Collector concerned did not hold any proceedings under Rule 4 of the Companies Rules in sequel whereof the land owners also stood concomitantly precluded to record their respective participation before him rendering them obviously incapacitated to purvey therebefore objections if any held by them against the launching by the appropriate Government of the apposite processes for bringing their lands to acquisition for the benefit of the cement companies, incapacitation whereof ingrains the initiation of the apposite proceedings by the appropriate Government for bringing to acquisition the lands of the land owners with a vice of theirs standing condemned unheard besides vice of infraction qua the tenet of ::: Downloaded on - 15/04/2017 20:39:14 :::HCHP ...16...
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audi alteram partem standing begotten. He contends of hence the entire processes embarked upon by the appropriate .
Government under the Act for bringing to acquisition the lands of the land owners to stand ingrained with a vice of nullity.
While making the aforesaid submission, the learned counsel for the petitioners relies upon a judgment of Hon'ble Apex Court of reported in State of Gujarat & Anr. versus Patel Chaturbhai Narsinbhai & Ors., AIR 1975 SC 629, Paragraph rt 22 whereof stands extracted herein-after:-
"22. For these reasons, we hold that the acquisition proceedings are vitiated. There was no compliance with the provisions of Section 39 of the Act. There was no prior agreement between the State and the Company before provisions contained in Sections 4 to 37 were put into force. The enquiry under Section 5-A of the Act in the present case does not satisfy the provisions contained in Rule 4 of the Companies Acquisition Rules. The owners of the land are entitled to opportunity of being heard in an enquiry under Rule 4 and enquiry under Section 40 of the Act. No such opportunity was given to the owners."
6. The submission of the learned counsel for the petitioners of a declaration made by the appropriate Government under Section 6 of the Act standing interdicted by sub-rule (4) of Rule 4 of the Companies Rules unless it has ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...17...
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consulted the Land Acquisition Committee constituted under Rule 3 of the Companies Rules besides has considered the .
report submitted to it by the Collector concerned on facets encapsulated in sub rule(1) and sub rule (2) of Rule 4 whereas demonstrably the appropriate Government neither holding any consultation with the Land Acquisition Committee, though Rule of 3 of the Companies Rule warranted its standing constituted nor the company/companies rt making an application to the appropriate Government for acquisition of any land nor hence the Government directing the Collector to submit a report qua facets enshrined in sub rules (1) and (2) of Rule 4 of the Companies Rules nor as a corollary his submitting a report embodying therein in sequel to his holding an apposite inquiry qua the facets encapsulated in sub rules (1) and (2) of Rule 4 of the Rules standing satiated, constituted omnibus infraction of the mandatory provisions of Rule 4 of the Companies Rules, infraction whereof rendered invalid the issuance by the appropriate Government of a notification under Section 4 of the Act.
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7. In making the aforesaid submission before this Court, the learned counsel for the petitioners has placed .
reliance upon a judgment of Hon'ble Apex Court reported in The General Government Servants Co-operative Housing Society Ltd., Agra versus Wahab Uddin & Ors., AIR 1981 SC 866, Paragraph-8 whereof stands extracted of herein-after:-
"8. In the instant case, as stated earlier, the first rt respondent on receipt of the notice under Section 9 (3) of the Act submitted a representation. After the representation, a brief written note of the arguments was also supplied (Annexure 6). The first respondent's objections, inter alia against the acquisition of the land were : (1) that the land being that of the Government cannot be legally acquired; (2) that the land or lessee rights having been once acquired by the Central Government under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it cannot be acquired by the State Government and (3) that the proceedings for the acquisition of the land for the appellant were illegal as the mandatory procedure for acquisition of land for private companies have not been followed. It was also stated in the representation that no efforts to purchase the rights of the first respondent by negotiation were made. The inquiry report submitted by the Collector does not show that he applied his mind to the provisions of Rule 4 as stated above, or to the objections of the first respondent. In fact there was no report under Rule 4. The report that was submitted was ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...19...
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one under Section 5A of the Act. We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been .
no failure of justice. In our opinion there has been failure of justice. Agreeing with the finding of the High Court, although for different reasons, we hold that the notification under Sec. 6 is invalid for non-compliance of Rule 4 of the Rules. As a result we dismiss the appeals with costs."
of
8. The learned counsel for the petitioners has proceeded to also espouse before this Court of the invocation rt by the appropriate Government of the provisions of Sections 6 to 16 of the Act holding no legal efficacy as the apposite provision of Section 39 of the Act proscribe their invocation by it unless the appropriate Government has prior to their invocation accorded consent to the competent authority qua theirs being put in motion, consent whereof by the appropriate Government was unpurveyable unless it stood satisfied on the apposite report furnished to it by the Collector preceding whereof he held an incisive inquiry qua the proposed acquisition of land of the land owners for the benefit of the cement companies respectively being imperative given the bespeakings by germane material of theirs intending to on the ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...20...
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land proposed to be subjected to acquisition hold it to use for the purposes embodied in Clauses (aa), (b) of sub-section (1) .
of Section 40 of the Act. He contends of even the apposite report submitted under Section 5A of the Act to the appropriate Government by the Collector concerned, report whereof stood prepared by him in sequel to his holding an of inquiry and which stood relied upon by the Government to put into motion the provisions of Sections 6 to 16 of the Act being rt colourable also its holding no legal efficacy for the appropriate Government putting into motion the provisions of Sections 6 to 16 of the Act, as the exploitation of the mineral wealth occurring in the land of the land owners put to acquisition not falling within Clause (aa) of sub-section (1) of Section 40 of the Act. He contends of a restrictive, abridged and a narrow interpretation standing purveyed to Clause (aa) of sub-section (1) of Section 40 of the Act. He further contends of it being workable only when acquisition of land is needed for construction of some building or work for company which is engaged or is taking steps for engaging itself in an industry or work which is for a public purpose. He has employed the ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...21...
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interpretative technique of ejusdem generis to both the words 'building' or 'work' occurring in Clause (aa) of sub-section (1) .
of Section 40 whereupon he espouses of theirs holding, a pari materia parlance or an equivalent connotation inasmuch as the word 'work' succeeding 'building' also holding a parlance in synonymity with the word building occurring prior to it. He has of communicated before this Court of with both words building or work holding a parlance in synonymity or the word work rt occurring after building bearing an affinity to the former word, its warranting an interpretation of some structural infrastructure standing proposed to be raised by the Company on the lands intended to be acquired for its benefit by the appropriate Government raising whereof by the Company being a demonstrable precursor of its engaging itself in an industry or a work meant for public purpose whereupon alone the appropriate Government on evincing of tangible evidence in substantiation thereof would hold leverage to construe of the cement Company by its thereinabove intending to use the land proposed to be subjected to acquisition for its benefit by the appropriate Government hence the apposite acquisition by ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...22...
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the appropriate Government for its benefit holding a public purpose. Likewise he reads Clause (b) of sub-section (1) of .
Section 40 of the Act, which stands extracted herein-after:-
"(b) that such acquisition is needed for the construction of some work and that such work is likely to prove useful to the public."
Inasmuch as the occurrence of the word 'work' for construction of whereof the acquisition of land is made by the appropriate Government for the benefit of the company holding no rt parlance other than of the work to be constructed on the land subjected to acquisition by the appropriate Government for the benefit of the company predominantly being relatable to the raising of an infrastructure thereon by the company concerned and such construction of work being useful to the public.
9. Lastly, the learned counsel for the petitioners has alluded to the definition of 'public purpose' occurring in Section 3(f) of the Act which stands extracted hereinafter:-
"3(f). the expression "public purpose" includes-(i) the provision of village-sites, or the extension, planned development or improvement of existing village-sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...23...
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or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further .
development as planned;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or land-less or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the of implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
rt
(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State or a co- operative society within the meaning of any law relating to co- operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government, or, with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building, for locating a public office, but does not include acquisition of land for Companies;"
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He contends of with its purveying therein an encyclopedic inclusive definition qua 'public purposes' on satiation whereof .
by credible material the appropriate Government holding authority to initiate processes for acquisition of lands of land owners besides its therein foisting a condition excluding acquisition of land for companies constituting a public purpose of also rendered the acquisition of land of the land owners by the appropriate Government for facilitating the cement companies rt respectively to exploit their respective mineral wealth to be not holding any public purpose with a concomitant sequel of the initiation of processes by the appropriate Government for the acquisition of their land by its invoking the relevant provisions of the Act not holding any tenacity.
10. Before proceeding to test the tenacity of the arguments addressed before this Court by the learned counsel for the petitioners in CWP No.2293 of 2010 an allusion to Annexure R-3/1 appended with the reply furnished by respondent No.3 to the writ petition would on its perusal unearth the factum of the mining lease executed inter se the Government of Himachal Pradesh and Ambuja Cements qua an ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...25...
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area measuring 6486-01 Bighas standing renewed on 7.6.2012 and its validity continuing upto 27.5.2042. The area recited .
therein embodies tracts of land located in villages Badog, Mangu, Gyana and Gamaru. Annexure R-3/7 appended with the reply furnished by respondent No.3 to the writ petition unfolds the factum of on 9.5.2001 an environmental public of hearing standing convened in village Rauri for eliciting the participation of the local populace for enabling them to purvey rt objections, if any, they held for the setting up of Unit -II.
Ultimately on 3.11.2006 under Annexure R-3/6 the apposite environment clearance stood granted by the competent authority. Under Annexure R-3/4 on 10.1.2003 respondent No.5 granted the apposite consent to respondent No.3 for its exploring the mineral wealth of the lands as stood subjected to acquisition. Annexure R-3/2 manifests of respondent No.3 requesting the authority concerned for subjecting to acquisition 1325-01 Bighas of land located in villages Badog, Mangu, Gyana and Gamaru. The area of 1325-01 Bighas embodied in Annexure R-3/2 forms a part of the area of 6486 Bighas divulged in Annexure R-3/1 qua which a lease deed stood ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...26...
CWP No. 912 of 2007 & connected matters.
executed inter se the respondent No.3 and the Government of Himachal Pradesh. The request of respondent No.3 comprised .
in Annexure R-3/2 was under Annexure R-2/2 on 19.10.2006 forwarded to the District Collector, Solan for his issuing the germane Inescapability Certificate for subjecting to acquisition the lands depicted therein. On 28.10.2006 under Annexure R-
of 2/3 the District Collector Solan elicited from the Tehsildar Arki a detailed report qua the availability of alternative Government rt land besides qua its effect on the general populace, also a report qua existence of school, hospital, road and trees on the land qua which respondent No.3 under Annexure R-2/3 made a request upon the authority concerned for subjecting the lands delineated therein to acquisition. Annexure R-2/4 of 17.11.2006 communicates of the Tehsildar Arki on holding an inquiry through revenue officers his preparing a report with disclosures occurring therein of no alternative land being available for facilitating respondent No.3 to obtain therefrom mineral wealth as a raw material for operationalising its cement factory. On 30.11.2006 under Annexure R-2/5 the District Collector, Solan on anvil of the report of the Tehsildar ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...27...
CWP No. 912 of 2007 & connected matters.
Arki comprised in Annexure R-2/4 purveyed to the Director of Industries, Government of Himachal Pradesh the apposite .
Inescapability Certificate. On 11.05.2007 the project aspired to be set up by respondent No.3 obtained approval from the State Level Single Window Clearance and Monitoring Authority.
On 1.3.2008 a Memorandum of Understanding stood executed of between the Government of Himachal Pradesh and respondent No.3 for the setting up of a cement plant. Annexure P-1 of rt 5.3.2009 embodies a notification issued by the competent authority under Section 4 of the Act for putting to acquisition 1325-01 Bighas of land located in village Badog, Mangu, Gyana and Gamaru. Annexure P-2 of 26.3.2009 encapsulates the objections filed by the petitioners against the notification as stood issued by the competent authority under Section 4 of the Act. Annexure R-3/8 of 20.4.2009 embodies the Indian Bureau of Mines according approval to the mining Plan of Unit II of cement factory of ACL. Annexure P-3 of 8.9.2009 is a report under Section 5A of the Act submitted by the Land Acquisition Collector to the Government of Himachal Pradesh through District Collector, Solan. Annexure R-2/6 of 20.1.2010 ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...28...
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embodies a portrayal of the additional information qua the report of the Collector concerned submitted under Section 5A .
of the Act desired by the Land Acquisition Committee standing submitted by the Land Acquisition Collector to Deputy Commissioner, Solan. Annexure R-2/7 of 19.2.2010 unfolds the factum of a meeting of the appropriate authority standing of convened to discuss the report under Section 5A of the Act furnished to the Government of Himachal Pradesh by the rt District Collector, Solan. On 24.2.2010 as unfolded by Annexure R-2/8 a meeting of the Land Acquisition Committee as constituted under Rule 3 of the Companies Rules standing convened under the Chairpersonship of ACS-cum-FC (Revenue), Government of Himachal Pradesh, minutes whereof depict of the members constituting the committee holding a unanimous view of theirs standing satisfied with the initiation of acquisition proceedings by the appropriate Government for subjecting to acquisition the lands of the land owners for the benefit of respondent No.3 besides theirs holding concurrence with the report of the Collector concerned. Thereafter under Annexure P-4 of 2.3.2010 the Government of Himachal ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...29...
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Pradesh issued a declaration under Section 6 and 7 of the Act.
Under Annexure R-3/3 of 27.2.2010 an agreement under .
Section 41 of the Act stood executed inter se the State of Himachal Pradesh with respondent No.3. On 20.3.2010 under Annexure R-3/5 the Himachal Pradesh State Pollution Control Board purveyed its consent to respondent No.3 for its holding of production of cement at its cement factory. With manifestations standing unveiled by the factum of District rt Collector, Solan under Annexure P-3 on 8.9.2009 submitting a report under Section 5A (2) of the Act to the Government of Himachal Pradesh besides prior thereto the appropriate authority on the anvil of the report of the District Collector issuing an Inescapability Certificate comprised in Annexure R-
2/5. Moreover, with Annexure R-2/8 unfolding the factum of the Land Acquisition Committee constituted under Rule 3 of the Companies rules concurring in unanimity with the report submitted to it by the Collector concerned under Section 5A of the Act besides of its holding with formidability an opinion of the land as proposed to be subjected to acquisition being imperative for facilitating the respondent No.3 to set up its ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...30...
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cement plant in sequel whereof the authority concerned of the Government of Himachal Pradesh issued declarations under .
Sections 6 and 7 of the Act would warrant a verdict from this Court of when hence all the parameters enshrined in Rule 4 of the Companies rules stood satiated, for purported non satiation whereof the learned counsel for the petitioners has launched a of blistering attack for invalidating the acquisition proceedings initiated by the Government concerned qua the lands of the rt land owners depicted in Annexure R-3/1 and Annexure R-3/2 qua whether hence any non compliance by the appropriate Government with its peremptory mandate casts a nullificatory effect on the acquisition proceedings. Also this Court stands enjoined to render a verdict qua hence when the apposite report under Section 5A of the Act by the Collector concerned when embodies the prima donna parameters enshrined in Rule 4 of the Companies Rules besides obviously the apposite parameters embodied therein standing borne in mind by the Collector concerned would arouse an inference of with substantial compliance with the mandate of Rule 4 of the Companies rules hence spurring of whether therefrom a ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...31...
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concomitant inference is deducible of hence adherence to by the appropriate Government with the mandate of Rule 4 of the .
Companies Rules was dispensable, for founding thereupon a conclusion of hence even when compliance thereto stood not meted by the appropriate Government, no invalidatory aspersion would stand cast upon the launching by it of the of apposite acquisition proceedings qua the lands of the land owners for enabling respondent No.3 to exploit the limestone rt deposits occurring therein for further empowering it to operationalize its cement plant.
11. Before proceeding to extinguish or unriddle the aforesaid conundrum, it is deemed fit to allude to the argument espoused by the learned counsel for the petitioners of the demonstrable non-adherence by the appropriate Government with the mandate of Rule 4 of the Companies Rules vitiating the entire processes launched by the appropriate Government for subjecting to acquisition the tracts of land embodied in Annexure R-3/1 and Annexure R-3/2, argument whereof stands founded upon a decision of the Hon'ble Apex Court reported in State of Gujarat versus Patel ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...32...
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Chaturbhai Narsibhai & ors., (Supra) besides stands founded upon a judgement reported in State of Gujarat & .
Ors. Versus Ambalal Haiderbhai & Ors., (1976) 3 SCC 495.
The relevant paragraphs whereof stand extracted hereinafter:-
"4. As observed by this Court in Suresh Koshy George v. University of Kerala, (1969) 1 SCR 317 = (AIR 1969 SC 198) of and reiterated in A. K. Kraipak v. Union of India, (1970) 1 SCR 457 = (AIR 1970 SC 150) rules of natural justice are not rules embodied always expressly in a statute or in rules framed rt thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its content should be for a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held, and the constitution and nature of duties of the Tribunal or the body of persons appointed for that purpose. Let us, therefore, advert to the provisions of Rule 4 of the Rules which require the appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings.
10. Our view is reinforced by the following illuminating observations made by the learned Chief Justice in State of Gujarat v. Patel Chaturbhai Narsibhai. (1975) 3 SCR 284 = (AIR 1975 SC 629) :
"The contention of the State that the enquiry under Rule 4 is administrative and that the owner of the land is not entitled to ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...33...
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be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under Rule 4 shows that the Collector is to submit a report among other matters .
that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The company at such an enquiry has of to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or rt disproving the reasonable efforts of the company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under Section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of Section 5-A shall not apply, and if it dies so direct a declaration may be made under Section 6 at any time after the publication of the notification under Section 4 of the Act. Therefore, the enquiry under Section 5-A may not be held."
Reliance thereupon by the learned counsel for the petitioners to erect his argument qua any stain of illegality imbuing the initiation of acquisition proceedings by the appropriate Government for bringing to acquisition the lands of ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...34...
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the land owners stain whereof standing awakened by its omitting to comply with the peremptory mandate of Rule 4 of .
the Companies Rules would be omnibusly applicable to the facts at hand besides their respective ratio decidendi would be applicable with aplomb to the factual scenario extantly available, only when factual matrix available thereat being pari of materia with the factual matrix extantly available.
Imperatively, this Court is enjoined with a peremptory rt obligation to hold an ad nauseam incisive analysis of the judgment relied upon by the learned counsel for the petitioners for his making a submission qua an invalidatory effect standing begotten by the initiation by the appropriate Government of acquisition proceedings for bringing to acquisition the lands of the land owners vice whereof stands engendered by demonstrable non-compliance by it with the peremptory mandate of Rule 4 of the Companies Rules. An indepth analysis whereof unveils the prima donna factum of the aforesaid decision recorded by the Hon'ble Apex Court standing confined to the State of Gujarat within whose territorial domain the lands reflected in the judgments of the ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...35...
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Hon'ble Apex Court stood located, preponderantly/ predominantly by a palpable display of the State of Gujarat .
effectuating valid amendments to Sections 39 and 40 of the Act whereby the hereinafter apposite words occurring in Section 40 of the Act "either on the report of the Collector under Section 5A sub-section 2 or by an inquiry held as of hereinafter provided" stood deleted. Since the effect of the apposite amendment effectuated by the State of Gujarat to the rt apposite hereinabove referred portion occurring in Section 40 of the Act is of thereupon an empowerment standing lent to an inference of in the State of Gujarat validity standing imputed to initiation of processes by the appropriate Government for bringing to acquisition thereat lands of the land owners located within its territorial domain not on satisfaction drawn by the appropriate Government on the report of the Collector submitted either under Section 5A sub-section 2 nor upon any objective satisfaction drawn by it on an inquiry held by the competent authority contemplated under sub section (1) of Section 40 of the Act, contrarily of sanctity standing imputed to initiation of proceedings by the Government of Gujarat for ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...36...
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acquisition of lands of land owners located within the territorial domain of Gujarat only when prior to issuance of notification .
under Section 4 besides prior to issuance of notifications under Section 6 and 7 of the Act, the appropriate Government on invoking Rule 4 of the Companies Rules, its on receiving the apposite report from the quarter concerned its drawing an of objective satisfaction qua the parameters encapsulated therein standing satiated whereupon its hence holding authorization to rt issue further notifications under Sections 4, 6 and 7 of the Act.
In other words, only when qua the lands located within the territorial domain of Gujarat the appropriate Government thereat prior to issuance of notifications under Section, 4, 6 and 7 had invoked Rule 4 of the Companies Rules also had drawn an objective satisfaction on its receiving the apposite report from the Collector concerned qua the lands of the land owners proposed to be subjected to acquisition satiating the parameters enshrined therein would thereupon foist statutory leverage to the appropriate Government in Gujarat to initiate further proceedings under the Act for bringing to acquisition the lands of the land owners located within its territorial ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...37...
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domain for the benefit of the company. The apt sequitur of the aforesaid inference is of the workability of Rule 4 of the .
Companies Rules standing generated only when the lands of land owners stood located within the territorial domain of the State of Gujarat. Concomitantly unless the peremptory mandate of Rule 4 stood complied with by the appropriate of Government of the State of Gujarat before initiating proceedings for bringing to acquisition the lands of the land rt owners located within its territorial domain for the benefit of a Company, the apposite acquisition proceedings initiated by it would face omnibus nullification. However, when the amendment aforesaid as stood carried out in the hereinabove referred apposite portion of Section 40 of the Act only by the State of Gujarat and not by the State of Himachal Pradesh naturally rendered them applicable only qua the State of Gujarat besides naturally rendered them to be inapplicable qua the State of Himachal Pradesh whereat the lands of the land owners as put to acquisition by the appropriate Government hereat for the benefit of the Company stand located preeminently also on the score of in Himachal Pradesh the ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...38...
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competent authority hereat unlike in the State of Gujarat whereat the competent authority held valid amendments to the .
hereinabove apt portions of Section 40 of the Act, not holding any amendment to the afore-referred apt portions of Section 40 of the Act, as a corollary, the verdicts of the Hon'ble Apex Court enjoining peremptory compliance by the appropriate of Government to the mandate of Rule 4 before its initiating proceedings for acquisition of land for the benefit of a rt Company would imperatively be inapplicable qua Himachal Pradesh whereat the lands of the land owners stand located besides when the appropriate Government hereat for enabling the respondent No.3 to exploit the limestone deposits occurring thereon for thereupon facilitating it to produce cement at its cement plant has hence subjected to acquisition the lands of land owners would also render un-attractable the verdict of the Apex Court qua the initiation of proceedings for acquisition by the appropriate Government of the lands of the land owners for the benefit of respondent No.3. Since the aforesaid prima donna fact of hence an imperative legal necessity standing enjoined only in the State of Gujarat qua ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...39...
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compliance by its competent statutory authorities with the mandate of Rule 4 of the Companies Rules for validating .
initiation of proceedings by the appropriate Government thereat for acquisition of lands of the land owners located within the territorial domain of the State of Gujarat for the benefit of a Company, engenders an inference of the ratio of decidendi of the hereinabove referred verdicts of the Hon'ble Apex Court as encapsulated in the relevant paragraph of its rt judgments being applicable only when proceedings for acquisition stand launched in the State of Gujarat preponderantly whereat a valid amendment stands effectuated to the apt portion referred to hereinabove of Section 40 of the Act whereby relevance stands imputed to the report of the Collector submitted under Section 5A sub-section (2) of the Act or to an inquiry initiated under Section 40 of the Act whereas obviously the lands subjected to acquisition by the appropriate Government stand located within the territorial domain of Himachal Pradesh whereat for reiteration the competent authority unlike in Gujarat not effectuating a pari meteria amendment to the apt portion of Section 40 of the Act, the ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...40...
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legal vigor of the report of the Collector alluded to herein-
above furnished by him under Section 5A(2) of the Act to the .
competent authority concerned cannot either suffer emasculation nor can its effect stand dissipated. Even otherwise viewed from the factum of with the competent authority in the State of Gujarat effectuating an amendment to of Section 39 of the Act whereby it prohibited the putting into motion by the appropriate Government thereat the provisions rt of Sections 4 to 16 of the Act whereas the provisions of Section 39 of the Act prohibit the appropriate Governments unless they hold alike in the State of Gujarat a valid amendment thereto against theirs initiating moves for acquisition of lands of the land owners for the benefit of a Company prohibition whereof stands comprised in theirs standing interdicted to put into motion the provisions of Section 6 to 16 only unless prior thereto the provisions of Section 40 stand complied with, hence the apposite provisions of Section 39 of the Act obviously save and reserve power besides authority in the appropriate Governments other than the appropriate Government of Gujarat to put into motion the ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...41...
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provisions of Section 4 or Section 5 of the Act when any proposal emanates for bringing to acquisition the lands of land .
owners for the benefit of the company. Furthermore when the competent authority in Gujarat has in the apt portion referred to hereinabove of Section 40 of the Act has held valid amendments thereto whereupon no sanctity stands imputed of to either the report of the Collector submitted by him to the appropriate Government under Section 5A(2) of the Act or to rt an inquiry held by the Collector concerned under Section 40 of the Act rather as a corollary when thereat for the initiation of proceedings under the Act to secure validation ordain of the appropriate Government of Gujarat to as an indispensable precursory step thereto beget adherence to the mandate of Rule 4 of the Companies Rules contrarily when in Himachal Pradesh no compatible amendment stands held by the competent authority hereat to Section 39 of the Act.
Imperatively, hence when effectuations of amendments thereat engender the aforesaid inference qua indispensability of compliance thereto by the appropriate Government of Gujarat before its initiating any proceedings for bringing to ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...42...
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acquisition the lands of the land owners located within its domain whereas with the competent authority in Himachal .
Pradesh not effectuating amendments alike amendments to Sections 39 and 40 of the Act fillips an inference of the appropriate Government hereat before initiating proceedings under the Act for bringing to acquisition the lands of the land of owners located within its territory not standing enjoined to mete peremptory compliance to Rule 4 of the Companies Rule rt rather it standing enjoined to before according its consent to the competent authority for putting into motion the provisions of Section 4 of the Land Acquisition Act, it standing objectively satisfied qua the imperativeness of initiation of proceedings for bringing to acquisition the lands of the land owners herein on its perusing a report of the Collector submitted to it either under Section 5A(2) of the Act or on a report submitted to it by the Collector concerned in sequel to his holding an inquiry under Section 40(1) of the Act also an inference spurs therefrom of even when the Government of Himachal Pradesh prior to its authorizing the competent authority to put into motion the provisions of Section 4 of the Act stood not seized ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...43...
CWP No. 912 of 2007 & connected matters.
of a report furnished by the Collector concerned in sequel to his holding an inquiry within the ambit of Section 40(1) of the .
Act rather stood seized of the report submitted to it by the Collector concerned under Section 5A(2) of the Act naturally when the latter report stands enjoined in Section 40 of the Act to be the alternative mode to a report submitted to the of appropriate Government hereat by the Collector concerned in sequel to his holding an inquiry under Section 40(1) of the Act, rt besides its hence facilitative for its according authorization to the competent authority to put into motion the provisions of Section 4 of the Act. Also with a prohibition cast in Section 39 of the Act against the appropriate Government purveying its consent to the competent authority to put into motion the provisions of Sections 6 to 16 of the Act unless the provisions of Section 40 of the Act stand complied with obviously when Section 39 excludes the invocation of or putting into motion by the competent authority the provisions of Sections 4 and 5 of the Act unless preceding thereof the mandate of Section 40 of the Act stands meted compliance begets an inference of the putting into motion by the competent authority the provisions ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...44...
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of Sections 4 and 5 of the Act prior to compliance not standing meted to the provisions of Section 40 of the Act not ingraining .
the apposite processes initiated under Sections 4 and 5 of the Act with any vice of nullification. In sequel when the report of the Collector submitted under Section 5A(2) of the Act is of 8th September, 2009 and the apposite notification issued by the of competent authority under Section 4 of the Act stood issued prior thereto nonetheless the issuance of notification under rt Section 4 of the Act by the competent authority even if occurs prior to the submission of the report by the Collector Solan under Section 5A(2) of the Act to the appropriate Government would not invalidate the issuance of a notification under Section 4 of the Act by the competent authority given the prime factum of provisions of Section 39 of the Act not for reasons aforesaid prohibiting the appropriate Government hereat to accord consent to the competent authority to put into motion the provisions of Section 4 of the Act prior to the mandate of Section 40 of the Act standing complied with.
Consequently, the submissions made by the learned counsel for the petitioners of the issuance of notification under Section ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...45...
CWP No. 912 of 2007 & connected matters.
4 of the Act by the competent authority remaining unpreceded by compliance by the authority concerned with the provisions .
of Section 40 of the Act hence nullifying the apposite notification issued by the appropriate Government under Section 4 of the Act hold no force. In sequel, also when the report of the Collector, Solan submitted under Section 5A of of the Act is of 8th September, 2009 whereas the notifications issued by the appropriate Government under Sections 6 and 7 rt of the Act stand issued subsequent thereto hence when Section 40(1) of the Act enjoins of consent under Section 39 of the Act being purveyable by the appropriate Government to the competent authority for the latter initiating proceedings under Section 6 of the Act when it stands seized of a report furnished before it under Section 5A(2) of the Act by the Collector Solan prior to its according approval to the competent authority to initiate proceedings for acquisition hence validate the notification issued by the competent authority under Section 6 of the Act. Even if assuming of the mandate of Rule 4 of the Companies Rule standing demonstrably un-satiated yet dehors the aforesaid inference yet assuming any clout ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...46...
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besides sway nonetheless with portrayals occurring in the report submitted under Section 5A of the Act by the Collector .
District Solan which stood accepted under Annexure R-2/8 by the Land Acquisition Committee constituted under Rule 3 of the Companies Rules acceptance whereof by the latter display of all the parameters encapsulated in Rule 4 of the Companies of Rules begetting reverence also when all the parameters enunciated in Rule 4 of the Companies Rules stand embodied rt therein preceding whereof the District Collector, Solan through the revenue agencies held an in-depth inquiry does foist an inference of compliance of the mandate of Rule 4 standing accomplished, rendering unnecessary any compliance therewith by the appropriate Government even if assuming Rule 4 holding clout qua the initiation of proceedings by the appropriate Government for bringing to acquisition the lands of the land owners for securing validation warranting compliance therewith by the appropriate Government. The report of the Collector District, Solan is comprised in Annexure P-3. It preceded the issuance of notifications by the appropriate Government under Sections 4, 6 and 7 of the Act issuance ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...47...
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whereof for reasons afore-stated hold validity. The apt portion of the report submitted by the Collector under Section 5A of .
the Act, is depictive of the land owners whose lands stood subjected to acquisition by the appropriate Government participating in the exercise undertaken by the Collector concerned prior to his holding an opinion embodied in of Annexure P-3 besides is manifestive of the objections preferred before the Collector concerned by the land owners whose rt lands stood subjected to acquisition standing in extenso dwelt upon by the Collector, Solan. Naturally the report under Section 5 A of the Act submitted by the Collector to the appropriate Government is bereft of any vice of its infracting the rule of audi alteram partem. Pertinently also there is a manifestation in Annexure P-3 of respondent No.3 operationalising its cement plant at village Suli and it being in the process of installing another in village Rauri also there occurs a narrative therein of the lands previously acquired by the appropriate Government for the benefit of respondent No.3 for establishing its cement manufacturing unit standing come to be utilized by respondent No.3. Also underlinings occur ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...48...
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therein of the dire necessity of the lands of the land owners being subjected to acquisition besides of the existence thereon .
of limestone deposits constituting the raw material for respondent No.3 to operationalise its cement manufacturing unit in village Suli stand unveiled therein. Consequently, with limestone deposits which constitute the indispensable raw of material for facilitating respondent No.3 to operationalise its cement manufacturing unit in village Baga occurring only in the rt lands of the land owners herein obviously renders indispensable their lands standing subjected to acquisition also hence given the necessity of respondent No.3 for operationalising its cement plant at Suli, its mining the limestone deposits occurring thereon especially when they constitute an indispensable raw material for it to produce cement at its cement unit at Suli fillips an inference of lands of the land owners being justifiably amenable to acquisition as the lime stone deposits which they hold when on theirs standing exploited by respondent No.3 when would stand purveyed to its cement unit for producing cement thereat, production whereof would obviously sub serve a public ::: Downloaded on - 15/04/2017 20:39:15 :::HCHP ...49...
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purpose. Moreover, there is a portrayal in Annexure P-3 of even when alternative lands being available outside the mining .
lease area yet with Annexure P-3 portraying of there being no guarantee qua limestone deposits occurring therein naturally then the sites other than the lands of the land owners as put to acquisition when hold no guarantee of theirs holding any of lime stone deposits obviously lands other than the land owners herein cannot be construed to be constituting alternative rt suitable sites vis-à-vis the lands of the land owners wherein alone as unveiled in annexure P-3 limestone deposits occur besides deposits whereof constitute the solitary raw material for facilitating respondent No.3 to operationalise its cement plant at Suli. Furthermore with unfoldments occurring in Annexure P-3 of respondent No.3 already utilizing the lands acquired for it by the appropriate Government besides given the factum of no demonstrable material upsurging from the material on record of respondent No.3 not holding the infrastructural wherewithals for mining the limestone deposits occurring in the lands of the land owners put to acquisition, gives impetus to an inference of respondent No.3 holding the ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...50...
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capacity to utilize the lands for the purpose for which they are brought to acquisition. The unfoldments aforesaid occurring in .
Annexure R-3/1 palpably satiate the parameters encapsulated in Rule 4 of the Companies Rules. Moreover with Annexure R-
3/1 unveiling of besides compensation being purveyed to the land owners in accordance with law for theirs lands subjected of to acquisition besides thereto other benefits being assured to be paid to them by respondent No.3.
rt Moreso with pronouncements occurring therein of respondent No.3 holding aforestation operations in the area to minimize the impact of degradation if any to the environment and to ecology ensuing from its mining the limestone deposits occurring in the lands of the land owners subjected to acquisition holds clout to sway this Court to conclude of respondent No.3 under Annexure R-
3/1 addressing itself all the relevant parameters for obviating any hazard either to the land owners or to the environment.
Lastly with Annexure R-3/1 unfolding of respondent No.3 providing/offering permanent employment to each member of the family whose land is brought to acquisition and are consequently rendered houseless, mitigates besides allays any ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...51...
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hazard of theirs also standing rendered homeless or landless in sequel to their lands being put to acquisition by the .
appropriate Government for the benefit of the company. The aforesaid manifestations occurring in Annexure R-3/1 belie the contention of the learned counsel for the petitioners of the lands of the land owners as put to acquisition being a of colourable exercise of power by the appropriate Government to benefit respondent No.3 also efficaciously counters the rt propagation of the learned counsel for the petitioners of the site other than the lands of the land owners herein also purportedly holding lime stone deposits warranted hence sites other than the lands of the land owners being put to acquisition. Consequently, with substantial compliance occurring in the report submitted under Section 5A of the Act by the Collector to the appropriate Government qua the mandate of Rule 4 of the Companies Rules or substantial compliance thereto emanating therefrom, it would be insagacious to insist upon the appropriate Government to also beget compliance of the mandate of Rule 4 of the Companies Rules nor also would be prudent for this Court for mere non-
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compliance by the appropriate Government with the mandate of Rule 4 of the Companies Rule to nullify the proceedings for .
acquisition launched by the appropriate Government for the benefit of respondent No.3.
12. In coming to the aforesaid inference of there being no enjoined necessity fastened upon the appropriate of Government to prior to issuance of notification under Section 4 of the Act beget compliance with the mandate of Rule 4 of the rt Companies Rules also while this Court coming to record the aforesaid inference of the report under Section 5A of the Act furnished by the Collector concerned to the appropriate Government holding a pedestal equivalent to the one held in law by a report prepared by the Collector concerned in sequel to an inquiry held by him under sub section (1) of Section 40 of the Act besides the report under Section 5A of the Act submitted by the Collector to the appropriate Government being the alternative mechanism to the adoption of the procedure contemplated in sub section (1) of Section 40 of the Act, for foisting authorization in the appropriate Government to accord consent to the competent authority to initiate ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...53...
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proceedings to bring the lands of the land owners to acquisition, this Court draw succor from a judgment of the .
Apex Court reported in M/s. Fomento Resorts & Hotels Ltd. versus Gustavo Ranato Da Cruz Pinto & Ors., (1985) 2 SCC 152, the relevant paragraphs 17, 21 and 24 whereof stand extracted herein-after:-
of "17. Reading the Act and the Rules and keeping in view the scheme of the Act, it is apparent, in our opinion, that before the issuance of S. 4 notification, there is no requirement as such of rt compliance with the procedure contemplated by R. 4 of the Rules.
We are therefore unable to subscribe to the view that enquiry by R. 4 must precede the issuance of notification under S. 4(1) of the Act. Furthermore as indicated before certain matters which are required to be done under R. 4 cannot be done because the officer or the person authorised by him would have no authority unless notification under S. 4 is issued.
21. In our opinion when this Court observed that the report of the enquiry under R. 4 was a factor to be taken into consideration and "to issue thereafter S. 4 notification" was by general observation. It is undoubtedly true that a notification under S. 4 can be issued after enquiry under R. 4. But under the scheme of the Act, the converse is not correct i.e. the enquiry under R. 4 must always precede notification under S. 4 of the Act. In that decision this Court analysed the importance of S. 5A and it is after considering the report under R. 4 and report under S. 5A that notification under S. 6 will be issued. It is undoubtedly true that enquiry under R. 4(1) must precede action under S. 6 but we do not find reading the said decision of this Court in the context of the facts and circumstances and the contentions urged in that case that this ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...54...
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Court laid down any proposition that enquiry under R. 4(1) must precede issuance of notification under S. 4. Indeed as we have mentioned, before, notification under S. 4 would facilitate the .
matters, to be enquired under R. 4(1).
24. It appears to us that the reference to R. 4 in the context in which it was made was inadvertent. What perhaps the Court wanted to convey was the need of compliance of entering into agreement under S. 41 before the Issuance of notification under S. 6 of the Act. Otherwise it appears that there was no enquiry under R. 4 of the Rules before issuance of the notification under S. 4 yet of the notification under S. 4 was not quashed. The observation then in any event is obiter."
13. rt The potency of the submission of the learned counsel for the petitioners of the land of the land owners which holds limestone deposits any exploitation thereof or any mining of the limestone deposits occurring therein by respondent No.3 not falling within the ambit of Clauses (aa) of sub-section (1) of Section 40 of the Act which he contends to stand attracted only when the respondent No.3 requires or needs the apposite lands for construction thereon of some building or work, the apposite phrase "building or work"
occurring therein, stand espoused by him of theirs warranting theirs being read in ejusdem generis, a reading whereof would purvey theirs holding a parlance of also 'work' occurring after ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...55...
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'building' standing connected to infrastructure raising ventures thereon by the company concerned whereas with mining of .
limestone deposits by the company concerned for enabling it to empower/operationalise its cement plant not being an infrastructure raising activity, as such, its not constituting 'work' as exists in Clause (aa) of sub-section(1) of Section 40 of of the Act whereupon it cannot also be concluded of the land of the land owners put to acquisition standing required or rt needed hence for a public purpose. However, the aforesaid submission addressed before this Court by the learned counsel for the petitioners for assailing the initiation of acquisition proceedings by the appropriate Government for subjecting the lands of the land owners to acquisition for the benefit of respondent No.3 is hinged upon a restrictive and abridged interpretation of Clause (aa) of sub-section(1) of Section 40 of the Act, his being unmindful of the Legislature at the time of employing the relevant words building or work therein being not oblivious to the factum of efflux of time imperatively warranting exploitation of raw material occurring on lands put to acquisition by the appropriate Government for the benefit of ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...56...
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a private entrepreneur/company hence obviously not rendering such exploitation of mineral wealth occurring in the lands put .
to acquisition by the appropriate Government for the benefit of a private entrepreneur or a public limited company to be amenable to a construction of its not constituting its standing worked or mined by a private entrepreneur/public limited of company concerned especially when its mining or working by a company is imperative for unearthing therefrom raw material rt which constitutes an indispensable component to operationalise its project or venture of gearing its cement industry also when the said working of the limestone deposits or their mining is a pre requisite for operationalizing its cement factory for production therefrom of cement besides when hence its production therefrom satiates a public purpose. In sequel any reading in ejusdem generis of the phrase building or work occurring in Clause (aa) of sub-section(1) of Section 40 of the Act would purvey to the latter bereft of farsightedness also bereft of a visionary approach to the grinding needs of industrialization, a restrictive and an abridged meaning especially when any trammeled parlance ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...57...
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standing imputed to the apposite phrases would set at naught any endeavour of a company engaged in production of cement .
moreso when thereupon lands holding limestone deposits stand baulked to face the apposite acquisition proceedings initiated by the appropriate Government whereupon their user as an indispensable raw material at the apposite cement plant of for producing cement thereat would stand de-facilitated. In aftermath when any acquisitions thereof would obviously stand rt baulked if a restrictive meaning to the word 'work' is imputed on its standing interpreted ejusdem generis with its preceding word 'building', the aforesaid interpretative technique employed by the learned counsel for the petitioners of their reading is to be discountenanced. Moreover, also if the word 'work' is contrarily held to be connotative of it being not an infrastructure raising venture, the purveying whereof of the aforesaid parlance to it would be in entwinement with the manifold rapid developments occurring in manufacturing process at factories or industries incentivised by technological developments besides would enable it to keep abreast of rapid developments in technology motivating production at ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...58...
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industries products/items not manufactured or produced therefrom at the time apposite of enactments therein.
.
Contrarily an enlarged meaning or an unabridged connotation to word 'works' occurring in Clause (aa) of sub-section(1) of Section 40 of the Act would be the appropriate concert of this Court whereupon it would also revere besides vindicate the of advancements in science and technology in boosting scientific manufacturing of items or products not hitherto produced rt thereat also it would promote companies to initiate projects which would remain still born unless land whereon deposits of raw material occur are not permitted to be exploited therefrom by mining or quarrying by a cement company for sequelling at an apposite industrial unit, production by it of the ultimate product. Consequently, in view of the aforesaid discussions anvilled upon Annexure P-3 manifestive of the lands of the land owners solitarily holding limestone deposits which constitute the imperative raw material for enabling respondent No.3 to operationalize its cement plant at Suli renders valid the initiation of acquisition proceedings by the appropriate Government for bringing to acquisition their lands for the ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...59...
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benefit of respondent No.3. Dehors the above, with the inference formed herein-above of with the report submitted .
under Section 5A of the Act by the Collector, Solan to the appropriate Government which stood accepted by it hence prodding it to authorize the competent authority to initiate proceedings for subjecting the lands of the land owners to of acquisition constituting the statutory alternative mechanism to the resort by the Collector on his holding an inquiry within the rt ambit of sub-section (1) of Section 40 of the Act qua the parameters enshrined therein, one of the parameters whereof is the one occurring in Clause (aa) of sub-section (1) of Section 40 of the Act wherein the words 'building' and 'work' occur, necessarily with the report submitted by the Collector, Solan under Section 5A of the Act to the appropriate Government begetting sufficient compliance qua the mandate of Section 39 of the Act obviously hence there was no enjoined legal obligation cast upon the Collector concerned to dwell upon any of the ingredients enshrined in Clause (aa) of sub-section (1) of Section 40 of the Act, consequently render frail the argument addressed by the learned counsel for the petitioners ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...60...
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of the word 'work' occurring after 'building' in Clause (aa) of sub-section (1) of Section 40 of the Act on being both read .
ejusdem generis warrant of some infrastructure raising venture intended to be set up by cement company on the lands subjected to acquisition as a pre-requisite for its engaging or taking steps for engaging itself in any industry or work meant of for a public purpose whereas with respondent No.3 not holding any infrastructure raising activity on the lands subjected to rt acquisition for its benefit, the apposite acquisitions proceedings stand vitiated.
14. Holding the view of both the inquiry contemplated in Section 40 of the Act and the report furnished by the Collector under Section 5A to the Government both holding equivalent statutory solemnity this Court draws succor from the judgment of the Apex Court reported in Shyam Nandan Prasad and others versus State of Bihar and others (1993) 4 SCC 255, relevant paragraphs 15 and 21 whereof stand extracted hereinafter:-
"15. Now when we direct ourselves to the provisions of the Companies Act, Section 2 (10 provides that a company means a company as defined in Section 3. Section 3 defines company to be ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...61...
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a company formed and registered under the Companies Act or an existing company as defined therein. "private company" has been defined to mean a company by the articles of which the right to .
transfer its shares, if any, is restricted and the number of its members is limited to fifty, but not including some persons detailed therein, and prohibits any invitation to the public to subscribe for any shares in, or debentures of the company. In contrast, "public Company" residually means a company which is not a private company. "government Company" under Section 2 (18 means government company within the meaning of Section of 617, which in turn says that a government Company means any company in which not less than 51 per cent of the paid-up share capital is held by the central government or by any State rt government or governments or partly by the central government and partly by one or more State governments and includes accompany which is a subsidiary of a government Company as thus defined. So understood, the society of which the appellants are members could never be a government Company for no government has subscribed to its share capital. The society could not also be a private company for it has more than 50 members, the figure of membership put at 400. Since the society is neither a government Company nor a private company, the impediment of Section 44-B towards confining the choice of acquisition for a private company for one purpose is out. Since the society is not a private company, by process of exclusion it becomes under Section 3 of the Companies Act, a "public company" even though not formed and registered under the said Act but only by the statutory inclusion in Section 3 (e) of the Land Acquisition Act bringing in a cooperative society registered under a State law to be definedly a company as if a company registered under the Companies Act. All the same, the society as a public company would require to satisfy in an enquiry under Section 40 of the Act that it requires the land for any of the purposes mentioned in ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...62...
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clauses (a) , (aa) and (b) before it can obtain consent of the appropriate government on the basis thereof and enter into an agreement as envisaged under Section 41 before switching on to .
have the role of Section 6 onwards till Section 37 of the Act played. The importance of such enquiry and report as contemplated under Section 40, in the light of Section 41, is to serve a double purpose as it may steer an acquisition if Section 5- A was dispensed with because of urgency under Section 17 and secondly to provide a safe alternative should there be any fault in the conduct of enquiry under Section 5-A of the Act. So one or the of other must be kept handy and if per chance one is defective, when both existing, the other can be deployed to satisfy the requirement of law.
rt
21. Now here the distinction is made between a public purpose and a purpose for the company. The acquisition of land for a company is in substance for a public purpose as all those activities mentioned in Section 40 such as constructing dwelling houses and providing amenities for the benefits of workmen employed by it and construction of some work for public utility etc. serve the public purpose. The acquisition for the company and the purpose for it, can well be investigated under Section 5-A or Section 40, necessarily after the notification under Section 4. Reference may usefully be made to Babu Barkya Thakar v. State of Bombay (now Maharashtra. It was the conceded case before the High court that there could be no acquisition for the respondent-Society without provisions of Section 40 of the Act being involved and complied with. In Babu Barkya case too, this court has taken the view that as provided in Section 39, the machinery of the Land Acquisition Act beginning with Section 6 and ending with Section 37 shall not be put into operation unless two conditions precedent are fulfilled, namely, (i) the previous consent of the appropriate government has been obtained and (ii) an agreement in terms of Section 41 has been executed by the Company. Such consent could be given ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...63...
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if it was satisfied on the report of the enquiry envisaged by Section 5-A (2 or enquiry held under Section 40 itself that the purpose of the acquisition is for purposes as envisaged in Section .
40. In this state of law, the plea set up on behalf of the appellants that when their Society could not be treated either as a private or a government company, it was no company at all so as to remain bound to comply with Ch. VII of the Act, is of no substance. The Society as a company is bound to satisfy the requirements of Section 40 before taking aid of S. 6 to 37 of the Act to promote its needed acquisition."
of The summum bonum of the above discussion is of a reading of the provisions of Sections 39 and 40 of the Act manifestive of rt the competent authority hereat standing interdicted to put into motion the provisions of Sections 6 to 16 of the Act unless the apposite previous consent of the appropriate government stands accorded to it consent whereof would emanate only on the appropriate Government standing objectively satisfied either on the report of the Collector furnished under Section 5A(2) of the Act or an inquiry held under Section 40 thereof necessarily hence when initiation of an inquiry under Section 40 of the Act is in the alternative to the furnishing of a report by the Collector under Section 5A(2) of the Act to the Government or even when the Collector, Solan has not ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...64...
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furnished his report under Section 40 sub section (1) of the Act whereas he extantly has furnished his apposite report under .
Section 5A(2) of the Act to the appropriate Government which stands accepted by the Land Acquisition Committee constituted under Rule 3 of the Companies Rules. Consequently, neither the inquiry under Section 40 was imperative nor it was at all of necessary for the appropriate Government to meet reverence to Clause (aa) of sub-section(1) of Section 40 of the Act rt besides hence the argument of the learned counsel for the petitioner of the word 'work' occurring after building being both read ejusdem generis whereupon he contends of with the proposed mining of mineral wealth occurring on the lands of the land owners herein by respondent No.3 not being an infrastructure raising activity by respondent No.3 its not giving any succor to the appropriate Government to proceed to acquire the lands of the land owners besides also not affording sinew to the appropriate Government of the holding of the proposed activity by respondent No.3 on the lands of the land owners subjected to acquisition for its benefit by the appropriate Government on theirs standing subjected to ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...65...
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acquisition not constituting any public purpose, suffering impairment. Furthermore, for reasons aforesaid the issuance .
of notification by the appropriate Government under Section 4 of the Act, in the absence of its standing seized of the report under Section 5A(2) of the Act while inquiry held under sub section (1) of Section 40 would not invalidate its issuance by of the appropriate Government nor the issuance of the aforesaid notification by the appropriate Government would suffer rt invalidation merely on the score of it remaining unpreceded by the appropriate Government invoking the mechanism contemplated in Rule 4 of the Companies Rules.
CWP No.912 of 2007 and CWP Nos. 996 of 2007:
15. Through the instant writ petitions the petitioners pray for quashing of notification under Section 4 of the Act issued on 12.8.2005 by respondent No.1 notification whereof stands comprised in Annexure P-3, they also pray for quashing of report submitted by the Collector concerned under Section 5A of the Act report whereof is borne on Annexure P-7 besides pray for quashing of Annexure P-6 comprising notification of ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...66...
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17.5.2006 issued by the competent authority under Sections 6 and 7 of the Act.
.
CWP No.2949 of 2009 & CWP No. 481 of 2010:
16. Through the instant writ petitions the petitioners pray for quashing of notification under Section 4 of the Act issued on 25.7.2008 by respondent No.1 and which of stands comprised in Annexure P-8, they also pray for quashing of notification of 19.6.2009 borne on Annexure P-10 besides rt pray for quashing of Annexure P-11 comprising notification of 30.7.2009 issued by the competent authority under Sections 6 and 7 of the Act.
17. From the apposite material available on record imminent upsurgings emanate of the lands of the land owners on consummation of the processes by the authorities concerned sequelling rendition of an award by the Land Acquisition Collector embedded in Annexure R-7/37. In sequel to the rendition of an award by the Land Acquisition Collector concerned possession of the lands of the petitioners/land owners stood as manifested by Annexure R-7/41 taken by respondent No. 7. Also Annexure R-7 unveils the preeminent ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...67...
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factum of mutation qua the apposite lands by the Revenue Officer concerned standing attested in favour of respondent .
No.7 whereupon an award stood announced by the land acquisition collector concerned comprised in Annexure R-7/37.
Moreover, with the learned District Judge, Solan standing seized with Reference Petitions constituted before him under of Section 18 of the Act by the aggrieved land owners/petitioners against the quantum of compensation assessed qua their lands rt by the Land Acquisition Collector concerned constrains this Court to hence while relying upon pronouncements of this Court made in Civil Writ Petition 491 of 2010 titled as Dila Ram versus State of Himachal Pradesh, the relevant paragraph whereof stand extracted hereinafter to in tandem thereof hold of with the learned counsel for the petitioners assailing the acquisition proceedings on the ground of the lands of the land owners as stood put to acquisition by the appropriate Government for the benefit of respondent No.7 being not for any public purpose hence holding no legal worth imminently in the face of rendition of an apposite award by the Collector concerned subsuming the aforesaid contention ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...68...
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besides with the petitioners standing aggrieved by the quantum of compensation assessed by the Land Acquisition .
Collector concerned qua their lands brought to acquisition preferring Reference Petitions there-from before the learned District Judge, Solan preferment whereof on anvil thereof by them when constitutes the solitary ground whereupon they of alone hold leverage to assail the acquisition proceedings, availment whereof by them of the apposite remedy qua the rt facet aforesaid also renders legal unworthy the concert of the learned counsel for the petitioners to impeach the acquisition proceedings concluded by the appropriate Government for the benefit of respondent No.7:-
"The petitioner challenges land acquisition proceedings on the ground that there is no public purpose involved in the process, but we find that the Land Acquisition Collector has already passed as award. Since the award has already been passed, objection of the petitioner under Section 5-A of the Land Acquisition Act cannot be considered. That stage is over, it is for the petitioner to pursue his other remedy in case compensation awarded is inadequate, in appropriate ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...69...
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proceedings. With such observations the petition stands disposed of."
.
Besides also constrains this Court to apply the ratio of the mandate of this Court encapsulated in its rendition reported in Urmila & Ors. Versus H.P.Housing Board & Anr., Latest HLJ 2010(HP) 68 wherein in the apt portion of its judgment of which stands reproduced hereinafter:-
"It is an undisputed fact that consequent upon the passing of the award under Section 11 and possession rt taken of the land, by operation of Section 16 of the Act, the right, title and interest of the erstwhile owner stood extinguished and the Government became absolute owner of the property free from all encumbrances. Thereby no one has nor claimed any right title and interest in respect of the acquired land."
echoing a vivid pronouncement of with completion of acquisition proceedings constituted by the rendition of an apposite award by the Land Acquisition Collector concerned in pursuance whereof possession of the lands subjected to acquisition stands also delivered to the entity concerned for whom acquisition is made, extinguishing the erstwhile title of the land owners rather begets vestment of title in the entity for ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...70...
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whom the apposite acquisition proceedings stand consummated, whereupon this Court also likewise holds of with .
an award qua the lands of the petitioners standing pronounced by the Land Acquisition Collector concerned comprised in Annexure R-7/37 besides possession of their lands standing taken by respondent No.7 also significantly when the aggrieved of land owners after purportedly accepting under protest the compensation amount assessed qua their lands by the Land rt Acquisition Collector, theirs therefrom preferring a petition under Section 18 of the Act before the learned District Judge Solan wherein they assail the quantum of compensation as assessed in their favour being deficient, fosters this Court to hold of with an extinguishment of title of the petitioners/land owners in the apposite lands occurring on their acquisition by the appropriate Government for the benefit of respondent No.7 of hence theirs extantly holding no vestige of any title or interest thereon more so when they have purportedly under protest have received the compensation amount assessed qua their lands by the Land Acquisition Collector concerned.
Moreover, when the land owners have from the award of the ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...71...
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Land Acquisition Collector constituted therefrom Reference Petitions before the learned District Judge, Solan whereat they .
on their adjudication in their favour by the learned District Judge, Solan, would receive the enhanced compensation along with all statutory benefits as envisaged in the Act of theirs also hence acquiescing to the validity of the processes initiated by of the appropriate Government for subjecting their lands to acquisition for the benefit of respondent No.7.
rt
18. The learned counsel for the petitioners while assailing the initiation of proceedings under the Act constituted by the appropriate Government issuing a notification under Section 4 of the Act comprised in Annexure P-3 has anchored his submission of invalidity ingraining the issuance of a notification by the appropriate Government under Section 4 of the Act, notification whereof stands comprised in Annexure P-3 upon the factum of theirs holding no knowledge qua its issuance by the appropriate government for its thereupon initiating proceedings for subjecting to acquisition their lands for the benefit of respondent No.7 unawareness whereof precluded them to file objections thereto. The learned counsel ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...72...
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for the petitioners also contends of despite theirs standing precluded to file objections to the notification issued under .
Section 4 of the Act by the appropriate Government notification whereof stands comprised in Annexure P-3 yet a day before the submission of the report by the Collector concerned under Section 5A of the Act to the authorities of concerned they submitted their apposite objections before him on 16.02.2006 objections whereof stood delivered in the office rt of the Land Acquisition Collector concerned. However, he contends of their objections instituted before the Collector concerned by the petitioners prior to his submitting his report under Section 5A of the Act standing not taken into consideration nor their participation in the exercise undertaken by him for his preparing his apposite report stood elicited by the Collector concerned, omissions whereof on the part of the Collector rendered his report under Section 5A of the Act to be colourable besides omission whereof also stained the subsequent issuance of notifications respectively under Sections 6 and 7 of the Act by the appropriate government with a taint of illegality. The aforesaid submission as ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...73...
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addressed by the learned counsel for the petitioners is rendered bereft of any veracity in the face of existence of a .
resolution of the Gram Panchayat concerned whereat the lands of the petitioners stand located comprised in Annexure R-7/5 proclaiming therein the factum of the Gram Panchayat concerned unanimously resolving qua the necessity of setting of up of a cement plant within the territorial domain of the Gram Panchayat concerned besides its proclaiming of in case a rt cement plant not coming to be established within its territorial domain, the Panchayat concerned standing constrained to not permitting the mining of the limestone deposits existing in the area of the Panchayat concerned. Consequently, with the resolution of the Gram Panchayat concerned standing issued on 5.4.2004 wherein the aforesaid proclamations occur whereas the apposite notification under Section 4 of the Act comprised in Annexure P-3 stood issued subsequently, it would be not tenable to conclude of the local populace falling within the territorial domain of the Panchayat concerned being unaware qua the initiation of proceedings by the appropriate Government for subjecting to acquisition the apposite lands ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...74...
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especially when the apposite notification stood issued subsequent thereto on 11.4.2005. Moreso, when the apposite .
notification stood issued subsequently on 11.4.2005 obviously when sufficient time since 11.4.2005 uptil 10.5.2005 was available to the local populace to make objections qua the initiation of proceedings by the appropriate Government for of subjecting to acquisition the lands of the land owners for the benefit of the Company renders their omission in regard rt aforesaid to render unsustainable their contention of theirs being unaware of the initiation of the apposite proceedings by the appropriate Government nor they can make any bemoanings of their participation in the apposite proceedings embarked upon by the Collector, Solan in sequel whereto he prepared his report under Section 5A of the Act standing both thwarted or precluded. Moreover, with the appropriate Government uncontrovertedly pending completion of proceedings for subjecting to acquisition the land of the petitioners for the benefit of respondent No.7 publishing its notification under Section 4 of the Act in the Himachal Pradesh Rajpatra besides when Annexure R-7/14 which embodies the ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...75...
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Rapat Roznamcha Wakiati of August 2005 with portrayals therein of the Patwari of the Halqua concerned whereat the .
lands of the petitioners stands located qua wide publicity to the apposite notification of the appropriate Government issued under Section 4 of the Act standing purveyed to the residents of the villages wherein the lands of the land owners are of located significantly bespoken by the factum of affixation of the notification on the notice board of the Patwarkhana rt concerned besides echoings by beat of drum in all the villages whereat the lands of the petitioners stand located benumbs the espousal of the learned counsel for the petitioners of the appropriate Government omitting to give wide publicity to its apposite notification issued under Section 4 of the Act hence precluding the residents of the villages whereat the lands of the petitioners stand located to become aware of the intention of the Government to subject their lands to acquisition with a concomitant deterrence to them to furnish their objections before the Collector Solan prior to his submitting his report under Section 5A of the Act to the Government.
Furthermore, with the notification under Section 4 of the Act ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...76...
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issued by the appropriate Government comprised in Annexure P-3 standing published on 26.8.2005 in two local newspapers .
circulating in the area inasmuch as in the Tribune and in Amar Ujala, in its entirety effaces the fervour of the contention of the learned counsel for the petitioners of their holding no knowledge qua the issuance of the apposite notification and of of theirs standing precluded to within 30 days thereafter file objections before the Collector, Solan and prior to his rt submitting his report under Section 5A of the Act on 8.9.2009 to the Government. With the aforesaid conclusions, portraying of the appropriate Government giving wide publicity to its apposite notification issued under Section 4 of the Act, there was no necessity of personal service being effectuated upon every land owner whose land stood subjected to acquisition by the appropriate Government. The necessity of effectuation of personal service upon each of the land owner whose lands were proposed to be subjected to acquisition by the appropriate Government arises only in the event of theirs instituting their apposite objections within 30 days of the issuance of a notification by the appropriate Government ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...77...
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under Section 4 of the Act, notification whereof stands embodied in Annexure P-3. Since none of the apposite land .
owners within 30 days of the issuance of a notification under Section 4 of the Act by the appropriate Government despite wide publicity standing in the manner aforesaid purveyed to the local populace qua its proposal as encapsulated in of the apposite notification issued by it of its subjecting their lands rt to acquisition, instituted their respective apposite objections thereto within 30 days thereafter, there was no entailed peremptory obligation cast upon the appropriate Government to serve any personal notice upon each of the apposite land owners prior to its initiating proceedings under Section 4 of the Act for bringing their lands to acquisition nor it was incumbent upon the Collector concerned to before his initiating proceedings under Section 5A of the Act serve upon each of the land owners whose lands stood subjected to acquisition a personal notice upon them. Consequently, for want of or omission on the part of the Collector concerned to before initiating proceedings under Section 5A of the Act to elicit the ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...78...
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participation therein of the apposite land owners for purveying them an opportunity of theirs being heard cannot besmirch the .
proceedings initiated by the Collector concerned under Section 5A of the Act nor can stain his apposite report prepared in sequel thereto with any vice of its infracting any statutory provisions or the solemn tenet of audi alteram partem. In of coming to the aforesaid conclusion, this Court finds support from the renditions of the Hon'ble Apex Court in Talson Real rt Estate (P) Ltd. versus State of Maharashtra & Ors., (2007) 13 SCC 186, relevant paragraphs 15, 16 and 17 whereof stand extracted herein-after:
"15. The essential requirements of publication of primary notification u/s. 4 of the Act is to indicate the intention of the appropriate Government that the land in any locality is likely to be needed for any public purpose and for achieving the said purpose, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality and the Collector shall call public notices of the substance of such notification to be given at convenient places in the said locality. In the present case, as noticed above, the respondents have wholly complied with the requirements of the provisions of law. The appellant-company has not brought on record any iota of evidence to show that the above named newspapers are not widely circulated in the locality where the land, in question, was situated. The High Court has rightly come to ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...79...
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the conclusion that the provisions of Sec. 45 of the Act will not be attracted in cases where there is no obligation cast upon the authorities to issue notice to the persons .
interested once it is clear that neither Sec. 4 nor Sec. 5-A of the Act contemplates any personal notice to the person interested other than the objectors for the purpose of conducting inquiry u/s. 5A of the Act. Therefore, the question of applicability of Sec. 45 in the case of the appellant-company would not arise at all as the appellant- company had not filed any objection u/s. 5-A to the of acquisition proceedings consequent to the issuance of notification u/s. 4 of the Act.
16. The provisions of Sec. 5-A of the Act are attracted only rt when a person interested in any land which has been notified u/s. 4(1) makes objection in writing to the Collector within 30 days from the date of the publication of the notification. The period of 30 days will have to be counted from the last day of the publication of the notification u/s. 4 of the Act which, in the present case, was admittedly published in the Official Gazette on 17.04.1997 and in two daily newspapers on the same day. The substance of such notification was notified on the site on 30.04.1997. The appellant-company did not choose to file objections u/s. 5-A of the Act against the acquisition of its land bearing Survey No. 23/2/1, admeasuring 1 Hectare 82 Are.
17. The record placed before us would reveal that the Joint Measurement Plan supplied by TILR, Haveli, did not indicate the hissas of Survey No. 23. The owners of the hissa at the time of inquiry conducted u/s. 9 of the Act by the SLAO stated that the lands notified for acquisition had some built- up constructions and sheds, etc. The appellant-company was the holder of hissa No. 23/2/1 which was a part of Survey No. 23. The subject-matter of the corrigendum ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...80...
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issued u/s. 4 on 1.02.2000 by the SLAO (14) was published in MGG, Pune Division Part I (Supplement) dated 2.03.2000 and in two daily newspapers on 1.06.2000. Had the .
appellant-company been diligent, it would have approached the authorities with whom the plan of the lands under acquisition was available and the appellant-company could have filed objections u/s. 5-A of the Act within the time prescribed therein from the date of notification u/s. 4(1) admittedly, issued on 1.04.1997 and published in the Official Gazette on 17.04.1997 and two daily newspapers on of the same day. By publishing the corrigendum u/s. 4 and declaration u/s. 6, the SLAO had not changed the Survey numbers of the lands under acquisition, but the entire rt Survey No. 23 (Part) came to be included in the corrigendum. On perusal of the corrigendum, we find no infirmity or vagueness in the identification of the lands covered by Sec. 4 notification published on 17.04.1997 and declaration u/s. 6 of the Act. The only insignificant clarification contained in the corrigenda was that in the notification u/s. 4 and declaration u/s. 6, min-survey numbers of the entire Survey No. 23 of the land were notified with the extent of the land in each min-survey numbers. but the total area intended to be acquired for the public purpose remained the same and all the land owners including the appellant-company were granted compensation by the SLAO vide Award made on 14.06.2000. Therefore, there was no obligation or requirement on the part of the SLAO to give 30 days' time to the appellant-company to file objections u/s. 5-A of the Act. Notification u/s. 4 remained the same by which adequate and reasonable opportunity was given to the interested persons including the appellant-company, whose land was intended to be acquired, to inspect the map ::: Downloaded on - 15/04/2017 20:39:16 :::HCHP ...81...
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showing the proposed survey numbers and the area involved therein and if any person interested was aggrieved, he could have filed objections u/s. 5-A of the Act .
and the SLAO was under obligations to decide such objections in accordance with law."
19. Even though the learned counsel for the petitioners contends of some of persons filing objections to the of notification issued by the appropriate Government under Section 4 of the Act notification whereof stands embodied in rt Annexure P-3, within the statutory limit of 30 days of its issuance yet the said objections remaining unattended by the Collector concerned before submitting his report under Section 5A of the Act cast a nullificatory effect upon the subsequent notifications issued under Sections 6 and 7 of the Act also holds no validity in the face of the reply filed by respondents No. 1, 2 and 6 to the aforesaid apposite averments palpably demonstrative of the objections which stood instituted by the aforesaid respondents standing instituted on 16th February, 2006 hence after more than 5 months standing elapsed since the issuance of a notification by the appropriate Government under Section 4 of the Act. In ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...82...
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sequel, the said objection instituted by a co-petitioner Rattan Singh is grossly time barred entailing its .
warranting its being not considered also to the notification issued under Section 4 of the Act by the appropriate Government when stood delivered by him in the office of the Kanungo who was otherwise unauthorizided to receive of them also given the factum of theirs neither standing diarized nor available in the main file besides when the rt Kanungo before whom they stood purportedly instituted has made an endorsement thereon of no objections standing instituted within 30 days of the issuance of aforesaid notification by the appropriate Government nor thereafter, as evident from Annexure R-1, evinces a natural conclusion of even co-petitioner Rattan Singh not within the statutory limit of 30 days instituting his apposite objections to the notification aforesaid nor any time thereafter. Consequently, theirs remaining unattended besides remaining unalluded in the report submitted by the Collector concerned under Section 5A of the Act would not warrant any ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...83...
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conclusion of it hence staining with any vice of illegality the initiation of the appropriate proceedings by the appropriate .
Government for bringing to acquisition the apposite lands by its subsequent thereto issuing notifications under Sections 6 and 7 of the Act. In sequel, the acceptance of the report of the Collector submitted under Section 5A of the Act by him to of the appropriate Government, report whereof stands embodied in Annexure rt P-6 besides the issuance of subsequent notifications by the appropriate Government respectively under Sections 6 and 7 of the Act cannot be faulted on any count. In addition Annexure R-7/L manifests of the holdings of the petitioners in CWP No.912 of 2007 titled as Munshi Ram & Others versus State of H.P. & Others standing comprised in an area of 26-15 Bighas from amongst the aforesaid tract of land, petitioners No.2 and 5 recording agreements with respondent No.7 qua land measuring 15-06 Bighas, consequently, the land qua which the agreements stand unexecuted by co-petitioners with respondent No.7 measures only 11.09 Bighas besides when in CWP No.996 of 2007 titled as Narottam Singh & Others versus State of H.P. & Others, co-petitioners 1 and 4 ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...84...
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have recorded an agreement with respondent No.7 for land measuring 03-14 Bighas hence leaving only an area of 10-8 .
Bighas in respect whereof agreements by the relevant land owners remain unexecuted with respondent No.7. In sequel, the portrayals qua the aforesaid facets comprised in Annexure R-7/L unravel of only a few persons raising objections qua the of validity of the apposite proceedings launched by the appropriate Government for bringing to acquisition their lands rt for the benefit of respondent No.7. Since hence a minority challenge has been raised to the acquisition by the appropriate Government of lands of the land owners for the benefit of respondent No.7 renders the minority challenge to be unacceptable besides un-entertainable, in sequel given the minimality of land qua which agreements stand not recorded by the respective land owners with respondent No.7 renders an inference of only a few land owners standing aggrieved by the acquisition of their land by the appropriate Government for the benefit of respondent No.7, minority challenge whereof is also unacceptable significantly when agreements as manifested in Annexure R-7/L stand executed by land owners with ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...85...
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respondent No.7 for 118-10 Bighas out of a total tract of land measuring 1330-16 Bighas as stands subjected to acquisition.
.
In coming to the view that when a minority challenge is made to the bringing to acquisition by the appropriate Government the lands of the land owners, it warrants its standing discountenanced by this Court, this Court draws succor from a of judgment of the Hon'ble Apex Court reported in Tamil Nadu Housing Board versus Chandrasekaran (Dead) By LRs & rt Ors., (2010) 2 SCC 786, paragraph-17 whereof stands extracted hereinafter:-
"17. We may also usefully refer to the judgments of this Court in Shyamnandan Prasad and Ors. v. State of Bihar and Ors., 1999 4 SCC 255; Abhey Ram v. Union of India, 1997 5 SCC 421 (paragraph 11); Delhi Administration v. Gurdip Singh Uban and Ors, 1999 7 SCC 44 (paragraphs 8, 9 and 11) and Delhi Administration v. Gurdip Singh Uban and Ors, 2000 7 SCC 296 in which it has been consistently held that quashing of acquisition proceedings at the instance of one or two landowners does not have the effect of nullifying the entire acquisition. Moreover, in the absence of challenge by L. Chandrasekaran to the order passed by the Division Bench of the High Court in Writ Appeal No. 9/1998, his legal representatives do not have the locus to contend that order dated 21.8.1990 passed by this Court in ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...86...
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SLP(C) Nos. 11353-11355/1988 had the effect of nullifying the entire acquisition."
20. The learned counsel for the petitioners contends of .
on the anvil of a decision of the Hon'ble Apex Court reported in Devinder Singh's case (supra), wherein the Hon'ble Apex Court has foisted a peremptory obligation upon the appropriate of Government to before bringing to acquisition the lands of the land owners for the benefit of a company to adhere to the rt mandate of Rules 3 and 4 of the Companies Rules, mandate whereof when remains uncomplied with by the appropriate Government renders the bringing to acquisition the lands of the land owners by the appropriate Government for the benefit of respondent No.7 to hold no efficacy. However, the aforesaid submission addressed before this Court by the learned counsel for the petitioners holds no sinew in the face of portrayals occurring in Annexure R-7/L of the appropriate Government under notification of 16.7.2011 inviting applications from interested entrepreneurs for establishing a cement plant within the territory of Himachal Pradesh subject to theirs fulfilling the criteria enshrined in conditions No.1, 2 ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...87...
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and 3 embodied in Annexure R-7/L also with Annexure R-7/39 depictive of the State of Himachal Pradesh inviting applications .
from entrepreneurs interested in establishing a cement plant within its territory by its issuing advertisements in National newspapers, is an abundant personification of the Government of Himachal Pradesh hence concluding of the setting up a of cement plant within its territory being in public interest, imperatively hence with limestone deposits constituting an rt essential raw material for producing cement at the cement plant proposed to be set up by the Government of Himachal Pradesh within its territory by inviting through apposite advertisements the engagement of private entrepreneurs in establishing it. As a corollary, with the lands of the land owners holding limestone deposits, deposits whereof on standing exploited or mined by an entrepreneur selected by the Government to establish a cement plant within its territory when hence sub-serves the production of cement at the apposite cement plant would also render the mining of the limestone deposits by the private entrepreneurs to sub-serve a public purpose or a public interest. The said conclusion evinces ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...88...
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an inference of even prior to the lands of the land owners standing subjected to acquisition by the appropriate .
Government for the benefit of the cement company it holding a view of the setting up of a cement plant besides mining of lime stone deposits occurring thereon by private entrepreneurs selected by it for setting up of a cement plant being imperative of besides necessary for serving public interest. In pursuance to the advertisement issued by the Government of Himachal rt Pradesh respondent No.7 submitted its application to it, disclosing its intention to set up a cement plant which sequelled a decision from the appropriate government portrayed in Annexure R-7/C of its accepting the offer of respondent No.7 besides its manifestive of its offering Baga & Bhalag limestone deposits in Tehsil Arki to respondent No.7 for enabling it to set up a cement plant. Significantly, thereafter with the making of Annexure P-1 on 9.7.2004 manifestly when its making precedes the issuance of a notification under Section 4 of the Act by the appropriate Government besides with the apposite annexure embodies a memorandum of understanding entered inter se the Government of Himachal ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...89...
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Pradesh with respondent No.7 specifically with clause 11 and 12 thereof stipulating of the Government of Himachal Pradesh .
undertaking to provide lands to respondent No.7 for mining the limestone deposits occurring thereon also its undertaking to initiate all necessary steps to transfer the lands whereon such deposits exist in favour of respondent No.7, predominantly of when in sequel to the manifestations in MOU of 9.7.2004 comprised in annexure P-1, the appropriate government rt initiated steps for subjecting the lands of the land owners to acquisition by its issuing a notification under Section 4 of the Act besides by its issuing notifications under Sections 6 and 7 of the Act constitute an important legal element or a legal component which secures legal approbation from the provisions engrafted in Section 43 of the Act contents whereof stand extracted hereinafter:-
"43. Sections 39 to 42 not to apply where Government bound by agreement to provide land for Companies :- The provisions of section 39 , section 40 , section 41 section 42, both inclusive, shall not apply and the corresponding sections of Land Acquisition Act, 1870, shall be deemed never to have applied, to the acquisition of land for any Railway or other Company, for the purposes of which, under any agreement with such Company, the Secretary of ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...90...
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State for India in Council, the Secretary of State, the Central Government or any State Government is or was bound to provide land."
.
Preeminently with the provisions of Section 43 of the Act standing attracted, attraction whereof renders inapplicable besides unattractable the provisions of Section 39 to 42 of Part 7 of the Land Acquisition Act, inapplicability whereof arises of from the aforesaid factum of with an agreement standing executed inter se the appropriate Government and the rt Company prior to the appropriate Government initiating steps for bringing to acquisitions the lands of the land owners for the benefit of respondent No.7, whereunder the former stands obliged to as manifested in the appropriate clauses of Annexure P-1 to provide land to respondent No.7, as a corollary there was no enjoined obligation cast upon the appropriate Government to mete adherence to the provisions of Section 39 or to the provisions of Section 40 of the Act.
Contrarily when the report submitted by the Collector under Section 5A(2) stands concluded by this Court to hold efficacy, it hence constitutes the apposite valid report, in the face of the provisions of Section 39 and of the provisions of Section 40 of ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...91...
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the Act standing excluded in the wake of the provisions of Section 43 for reasons aforestated standing attracted nor .
would any non compliance thereto by the appropriate Government would beget the legal sequel of the initiation of proceedings by the appropriate Government for bringing to acquisition the lands of the land owners standing hence of invalidated. The effect of the above discussion is of with this Court forming a formidable conclusion of the provisions of rt Section 43 standing extantly applicable hereat, attraction whereof renders the enjoined statutory obligations cast upon the authority concerned under Sections 39 and 40 of the Act to face exclusion or ouster, on ouster whereof of the apposite provisions specifically the one existing in Sections 39 and 40 of the Act foments a sequelling deduction from this Court of the according of approval by the appropriate Government to the competent authority to put into motion the provisions of Sections 4, 6 and 7 of the Act even when the apposite approval of the appropriate Government to the authorities concerned qua the facet aforesaid remained unpreceded by its adhering to the mandate of Rules 3 and 4 of the Companies ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...92...
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Rules besides when the apposite approval by it to the authority concerned remained unpreceded by its drawing an objective .
satisfaction either on the report of the Collector under Section 5A sub section (2) of the Act or on an inquiry held within the purview of sub section (1) of Section 40 of the Act, standing not stained with any aura of illegality. The apposite approval of accorded by the appropriate Government to the authorities concerned for putting into motion the provisions of Section 4 rt to 7 of the Act despite the aforesaid statutory mandatory compliance with the apposite mandate of Sections 39 and 40 of the Act standing not begotten prior thereto would rather in the face of attraction hereat of the provisions of Section 43 of the Act for reasons aforestated standing aroused, on attraction whereof hereat when ousts their play or workability would rather sustain the initiation of proceedings by the authority concerned to bring to acquisition the lands of the land owners.
Dehors the above, there are open manifestations in the report submitted by the Collector concerned to the appropriate Government of his drawing satisfaction on his holding an incisive inquiry of a pervasive public purpose standing served ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...93...
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by bringing to acquisition the lands of the land owners especially when limestone deposits as manifested by Annexure .
R-7/A occur thereon for theirs standing mined besides exploited by respondent No.7, mining whereof would empower it to produce cement at its plant proposed to be set up at Arki, also with Annexure P-1 embodying an undertaking purveyed of under its apposite clause by the appropriate Government to respondent rtNo.7 Annexure whereof stood recorded in pursuance to respondent No.7 affirmatively responding to elicitations made under apposite advertisements issued by the Government for participation of cement companies to set up a cement plant within Himachal Pradesh is a preeminent display of a formidable conclusion standing formed by the appropriate Government of the setting up a cement plant by the company serving public purpose. In face thereof, any reliance placed by the learned counsel for the petitioners upon the provisions of Section 3 of the Act wherein amongst the public purposes in extenso besides ad nauseam spelt out therein the acquisition of land for the benefit of the company stands excluded whereupon he contends of acquisition of land by the ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...94...
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appropriate Government for the benefit of respondent No.7 holding no public purpose holds no vigour given the special .
statutory mechanism engrafted in Chapter 7 of the Act for bringing to acquisition by the appropriate Government lands of land owners for the benefit of public/private company standing for reasons afore-stated resorted to by the appropriate of Government. Consequently, when for reasons afore-stated the contemplations occurring therein stand meted adherence by rt the appropriate Government renders the espousal of the learned counsel for the petitioners of the bringing to acquisition the lands of the land owners by the appropriate Government for the benefit of a cement company on the score of their apposite acquisitions holding no public purpose on the anvil of Section 3 of the Act excluding acquisitions of lands for a company constituting a public purpose, to stand stripped of its vigour and strength. Moreover, reliance, if any, by the learned counsel for the petitioners upon the ratio of judgment of Devinder Singh (supra) is inapt given the distinctivity inter se the factual scenario existing in the judgement of the Hon'ble Apex Court relied upon by the learned counsel for the ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...95...
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petitioner wherein prime agricultural land was sought to be acquired by the appropriate Government for the personal .
mercantile benefit of the company vis-à-vis the factual scenario extantly available wherein with limestone deposits occurring in the lands of the land owners brought to acquisition occurrence whereof is embedded solitarily therein and not elsewhere, of deposits whereof on theirs standing mined besides exploited by respondent No.7 especially when they constitute a vital raw rt material for producing cement at the factory set up by respondent No.7 significantly the solitary existence thereon of mineral wealth besides when on its standing exploited would obviously advance also carry forward a public purpose of a vital infrastructure raising material standing on its user at the apposite cement plant standing produced thereat.
Consequently, when the purveying of limestone deposits to the cement plant set up by respondent No.7 would occur only on the lands wherein they exist standing subjected to acquisition by the appropriate Government for the benefit of respondent No.7 besides when mining whereof would occur on acquisition of the apposite lands being made by the appropriate ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...96...
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Government for respondent No.7 concomitantly when the mining of limestone deposits occurring in the lands of the land .
owners as stand subjected to acquisition by the appropriate Government for the benefit of respondent No.7 would facilitate production of cement at the cement plant of respondent No.7, production whereof would ultimately subserve the of infrastructure raising activity of both the State agencies besides of private individuals, grips the acquisition proceedings rt with theirs inherently embodying an innate public purpose.
Also the judgment of Devinder Singh (Supra) is wholly inapplicable as the lands therein as stood subjected to acquisition by the appropriate Government for the benefit of the company therein not holding any raw material nor obviously any quarrying/mining thereof being imperative for sub serving the purpose for which the lands therein stood acquired by the appropriate Government for the benefit of the company therein. Moreover with no mining wealth occurring in the lands subjected to acquisition by the appropriate Government for the benefit of the Company therein nor occurrence if any thereof therein not serving or aiding the ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...97...
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industrial activity of the company concerned therein necessarily hence when other suitable alternative sites could yet serve the .
purpose for which the appropriate Government acquired lands for the benefit of the company thereat, the Hon'ble Apex Court held the view of the lands of the land owners therein as put to acquisition by the appropriate Government therein for the of benefit of the company when constituting prime agricultural land their acquisition being hence avoidable rather rt sites alternative thereto yet being available for selection by the appropriate Government for their acquisition by it for the benefit of the company whereas given the imminent upsurgings of lands of the land owners herein solitarily holding limestone deposits which constitute an imperative raw material for facilitating respondent No.7 to operationalise its cement plant rendered unnecessary any exercise by the appropriate Government to select or choose any other alternative land especially when alternative sites other than the land of the land owners as subjected to acquisition herein when not holding lime stone deposits would not serve the purpose of theirs purveying on mining thereof limestone to respondent ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...98...
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No.7 for facilitating it to produce cement at its cement plant.
Given the imperativeness of bringing to acquisition the lands of .
the land owners herein by the appropriate Government for the benefit of the cement company for facilitating its ear marked purpose, purpose whereof would stand sub served by bringing to acquisition the apposite lands, constrains this Court to of conclude of apposite lands of the land owners herein alone in exclusion to other sites being amenable to initiation of rt proceedings by the appropriate Government for their acquisition for the benefit of the cement company.
21. Be that as it may, given the factum of issuance of Inescapability Certificate comprised in Annexure R-7/B by the Deputy Commissioner, Solan of hence the land of the land owners brought to acquisition being peremptorily required for serving a public purpose concomitantly the decision made by the appropriate Government for bringing to acquisition the lands of the land owners warrants its being not faulted on any score rather it can be concluded of the limestone deposits solitarily occurring therein necessitating its acquisition especially when the mining of lime stone deposits is essential ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...99...
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for empowering respondent No.7 to produce cement at its cement plant at Arki.
.
22. The learned counsel for the petitioners has contended of the Collector, Solan proceeding to enlarge the boundaries of Majathal Wild Life Sanctuary whereas he stood not appointed as a Collector under Section 18-B of the Wild of Life (Protection) Act, 1972, statutory omission whereof incapacitated him to pass orders on 15.11.2005 whereby he rt enlarged the boundaries of Majathal Wild Life Sanctuary hence the apposite orders issued by him being jurisdictionally nonest.
However, the aforesaid submission holds no vigour as the learned counsel for the petitioners has read Section 18-B of the Wild Life (Protection) Act which stands extracted hereinafter:
"18-B. Appointment of Collectors:- The State Government shall appoint, an officer to act as Collector under the Act, within ninety days of coming into force of the Wild Life (Protection) Amendment Act, 2002, or within thirty days of the issue of notification under Section 18, to inquire into and determine the existence, nature and extent of rights of any person in or over the land comprised within the limits of the ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...100...
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sanctuary which may be notified under sub-section (1) of Section 18."
in an isolated manner whereas it is enjoined to be in .
conjunction with Section 2(9) of the Wile Life (Protection) Act provisions whereof also stand extracted hereinafter:
"2. xxx xxx (9) "Collector" means the chief officer-in-charge of the of revenue administration of a district or any other officer not below the rank of a Deputy Collector as may be appointed by the State Government under Section 18B in this behalf."
rt On a combined reading of both the aforesaid provisions especially when the provisions of Section 2(9) of the Wild Life (Protection) Act define 'Collector' to be the Chief Officer-in-
Charge of the revenue administration of a District or any other officer not below the rank of a Deputy Collector as appointed by the State Government under Section 18-B of the Wild Life (Protection) Act. In aftermath, with the Collector Solan issuing the order of 15.11.2005 whereby he enlarged the boundaries of the wild life sanctuary in his capacity of his hence holding the designation of a 'Collector' within the ambit of Section 2(9) of the Wild Life (Protection) Act arising from his holding the contemplated statutory capacity of the Chief Officer-in-Charge ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...101...
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of the revenue administration of a District, as a corollary when he hence was statutorily capacitated to issue the apposite .
order it cannot be faulted on any score. The necessity of issuance of a notification by the Government concerned under Section 18-B of the Wild Life (Protection) Act whereby it proceeds to for the purpose of Section 2(9) of the Act besides of for the purpose of Section 18-B of the Act appoint a Collector would arise in case the entity who proceeds to exercise rt jurisdiction vested under Section 18-B of the Act is not the Chief Officer-in-Charge of the revenue administration rather enjoys the rank of a Deputy Collector whereas with the Collector Solan recording a decision of 15.11.2005 in the capacity of his holding the designation of the Chief Officer-in-
Charge of the revenue administration hence when he holds the capacity of a 'Collector' within the ambit of Section 2(9) of the Act, the recording of the aforesaid decision by him on 15.11.2005 does not lack jurisdictional vigour.
23. Furthermore, the apposite environment clearance as granted to respondent No.7 as portrayed by Annexure R-7/18- A to Annexure R-7/18/AA/B comprising photographs pertaining ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...102...
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to public hearing being held prior to grant of environment clearance especially when pages 391 to 418 of the paper book .
are depictive of Shri Nand Lal Chauhan, resident of the area addressing a public gathering is an open manifestation of the environment certificate as stood granted by the competent authority standing preceded by a public hearing. Furthermore, of Annexure R-7/27 occurring at page 471 of the paper book comprising a communication addressed by respondent No.5 to rt Secretary, H.P. State Pollution Control Board to the Government of Himachal Pradesh qua the holding of a public hearing on 4.2.2005 proceedings whereof stand annexed at pages 472 to 479 of the paper book comprises palpable evidence of a public hearing standing held on 4.2.2005 also of all objections and comments standing elicited from the persons attending it. Consequently, the issuance of the environment clearance certificate by respondent No.5 when stands preceded by a public hearing to the affected public it cannot stand faulted on any ground.
24. Also given the factum of the award of the Land Acquisition Collector comprised in Annexure P-2 standing ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...103...
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pronounced on 12.08.2005 whereas the petitioners making a challenge thereto in the years 2009, infects the writ petitions .
with the vice of delay and laches. The vice of delay and laches infecting the writ petitions renders them to face the axe of dismissal. In coming to the said view, this Court finds support from a judgment of the Hon'ble Apex Court reported in Delhi of Development Authority versus Rajender Singh, (2009) 8 SCC 582, paragraph 52 whereof stands extracted hereinafter:
rt "52. In Narmada Bachao Andolan vs. Union of India, 2000 10 SCC 664 para 229, this Court has held that the PIL should be thrown out at the threshold if it is challenged after the commencement of execution of the project. It was also held that no relief should be given to persons who approach the Court without reasonable explanation under Articles 226 and 32 after inordinate delay."
25. The learned counsel for the petitioners submits that given the factum of the Collector concerned not pronouncing his award within two years of the date of publication of declaration rendered the entire acquisition proceedings to, as mandated in Section 11 of the Act, lapse. Its apt provisions stand extracted hereinafter:-
"11A. Period within which an award shall be made:-
The Collector shall make an award under section 11 ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...104...
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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, (68 of 1984), the award shall be made within a period of two years from such commencement."
of
26. However, the aforesaid submission holds no force in the face of the factum of the petitioner instituting the aforesaid rt writ petition in August, 2009 and January, 2010 respectively.
On 14.12.2011 this Court had stayed further proceedings before the Land Acquisition Collector. The order of this Court staying further proceedings before the Land Acquisition Collector would obviously relate back to the date whereat the aforesaid two writ petitions stood respectively instituted before this Court. Given the factum of the petitioners accepting the order of this Court staying the further proceedings before the Land Acquisition Collector estops them to contend of the Land Acquisition Collector concerned in not making an award as mandated by Section 11 of the Act within two years of the date of publication of the declaration begetting the sequel of ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...105...
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entire proceedings for acquisition of the lands of the land owners standing lapsed.
.
CWP No.10497 of 2011.
27. Through the instant writ petition, the petitioners pray for quashing of notification under Section 4 of the Act issued on 5.3.2009 by respondent No.1 notification whereof of stands comprised in Annexure P-1, they also pray for quashing of Annexure P-2 comprising notifications of 2.3.2010 issued by rt the competent authority under Sections 6 and 7 of the Act.
28. During the course of arguments standing addressed by the learned counsel for the petitioners for assailing the initiation of processes by the appropriate Government for bringing to acquisition the lands of the land owners, he has confined his onslaught of vitiation ingraining the apposite processes initiated by the appropriate Government for subjecting to acquisition the lands of the land owners, on the anvil of a high level committee echoing in Annexure P-14 of 6468.1 bighas of land standing acquired in the year 1992 for the benefit of respondent No.3 from amongst whereof only 3817 Bighas stands utilized by respondent No.3 for mining ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...106...
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purposes rendering the remaining area of 1755 Bighas to stand unutilized. Moreover with communications occurring in .
P-13 of the high level committee in its meeting convened on 12.1.2010 which stood attended by representatives of respondent No.3 of 1000 Bighas of land standing utilized by respondent No.3 and of 3000 Bighas remaining yet unutilized.
of Consequently, the counsel for the petitioner submits of with respondent No.3 not utilizing 6486.01 Bighas of land, the rt bringing to acquisition the lands of the land owners under the apposite notifications is a colourable exercise of power by the appropriate Government to enhance the land pool of respondent No.3 whereas no dire necessity for theirs standing subjected to acquisition stands evinced. However, the aforesaid submission addressed before this Court by the learned counsel for the petitioners has to suffer its being axed on the score of with the cement factory of respondent No.3 being already in operation besides its standing permitted by the competent Government to enhance its production thereat of cement, apposite permission whereof stands comprised by its sanctioning qua respondent No.3 the installation by it of an ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...107...
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additional unit for producing cement, concomitantly when in pursuance to the apposite approval accorded to respondent .
No.3 for adding a unit for enhancing its production of cement approval whereof stood conveyed on 6.3.1998 in pursuance whereof a memorandum of understanding stood recorded inter se the competent Government and respondent No.3 on of 27.02.2010, the apposite approval whereof led respondent No.3 to beget compliance therewith, whereafter given the rt obvious accretion in its requirement qua raw material comprised in its mining limestone deposits solitarily occurring in the lands of the land owners rendered necessary their lands to stand subjected to acquisition. In sequel, even if respondent No.3 at the time of initiation of the apposite processes of acquisition by the appropriate Government for bringing to acquisition the lands of the land owners had not fully utilized the lands already brought to acquisition by the appropriate Government for its benefit nonetheless with approval by the Government of Himachal Pradesh to respondent No.3 to expand its capacity of producing cement in a quantum higher than the one approved prior thereto, for ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...108...
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production whereof abundant besides copious wealth of limestone deposits for maximizing its production was .
imperative. In aftermath the mere factum of some portion of the lands previously brought to acquisition for the benefit of respondent No.7 remaining unutilized by it would not vitiate the initiation of apposite processes by the appropriate of Government for subjecting to acquisition the lands of the land owners unless material exist in pronouncement of respondent rt No.3 not at its unit producing cement in a quantum or at a scale commensurate to the deposits of lime stone occurring in the lands already subjected to acquisition by the appropriate Government for its benefit nor its likely to maximize its production of cement at a scale higher than hitherto produced therefrom, wherefrom it would secure an inference from this Court of its not holding any right from the appropriate Government for it to operationalise its cement unit, of lime stone deposits occurring on the lands of the land owners on theirs standing subjected to acquisition by the appropriate Government for its benefit, being mined by it. Imperatively for lack of the aforesaid material no inference can stand evinced ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...109...
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of extantly even if with the respondent No.3 not utilizing the entire mineral wealth embedded in the entire tract of lands of .
the land owners hitherto subjected to acquisition by the appropriate Government for its benefit, its not holding the wherewithal to mine to the optimum the lime stone deposits occurring thereon nor can a conclusion stand filliped of of respondent No.3 not holding the capacity to mine the mineral wealth occurring in the lands of the land owners hereat.
rt Furthermore, with no material existing on record demonstrative of respondent No.3 not holding the capacity to produce cement at its cement plant at a scale or a level higher than the one hitherto produced thereat rather constrains an inference of the lands of the land owners as stood subjected to initiation of proceedings by the appropriate Government for their acquisition for the benefit of respondent No.3 being extantly necessary for facilitating it to maximize production of cement at its new unit especially when for maximizing production of cement it requires immense, abundant and copious raw material, material whereof solitarily occurs in the lands of the land owners subjected to acquisition by the ::: Downloaded on - 15/04/2017 20:39:17 :::HCHP ...110...
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appropriate Government for its benefit, sequelly it would be unbefitting to accept the contention of the learned counsel for .
the petitioner of the acquisition of the lands of the land owners being colourable besides unnecessary it being a concert to increase the land pool of respondent No.3 even when it does not require the mining of the limestone deposits occurring of thereon.
29. The result of the above discussion is that the instant rt writ petitions stand dismissed, so also the pending application(s), if any.
(Mansoor Ahmad Mir)
Chief Justice
(Sureshwar Thakur)
June 23, 2016 Judge.
(soni/TM)
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