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2017 Supreme(Chh) 218
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Alok Agrawal – Petitioner
Versus
State of Chhattisgarh, Through the Secretary, Department of Revenue and Disaster Management and Others – Respondents
Writ Petition (C) No.1401, 1443 of 2015 & 2709 of 2016
Decided On : 03-11-2017
Subject
Land Acquisition - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
Act Referred
RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT : S.10(a), S.10(a)(2), S.11, S.11(1), S.11(2), S.6
Headnote
Constitution of India,1950 - Articles 49 and 300A - Land Acquisition Act 1894 - Environmental Protection Act, 1986 - Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 - Sections 11(2), 10-A , 11(1) , 20-A(3) , 10 (2) and 10A (1) - Land Acquisition - irrigation facilities to agriculturists - Petitioners land bearing Khasra No.area 0.25 acre, at Village Apri, District was subjected to acquisition under Land Acquisition Act 1894, but before acquisition could take place, act of 1894 was repealed and new act hereinafter Act of 2013 came into force with effect leading to dropping of old land acquisition proceeding and initiation of new land acquisition proceedings under the Act of 2013 for acquisition of 55.172 hectares of land including the petitioners land for public purpose that is Saradih Barrage Project by issuance – Held, Ordinance having been ceased to operate with effect as the situation has not become irreversible only notification under Section 11(1) of Act of 2013 has been issued and neither award has been passed nor possession has been taken from petitioners, thereby the provisions of Chapter-II and Chapter-III ought to have been complied with by the appropriate Government by conducting social assessment impact study and following Section 10A of the Act - Which are imperative provisions, and without following said provision - Acquisition of petitioners land is unsustainable and bad in law - notification issued by the appropriate Government qua petitioners land is quashed and consequently - Notification under Section 11 (1) of the Act of 2013 dated 1-4-2015, qua the petitioners is also hereby quashed - Writ petitions are allowed
Certainly. Based on the provided legal document, here are the key points:
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The land acquisition proceedings initiated under the earlier Land Acquisition Act of 1894 were dropped following the enactment of the new Act of 2013, which introduced a comprehensive framework for fair compensation, rehabilitation, and resettlement, emphasizing transparency and participation of affected persons (!) .
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The new legislation mandates that no land should be dispossessed unless all dues are paid and suitable alternative resettlement and rehabilitation sites are prepared, ensuring that affected persons are partners in development rather than mere recipients of compensation (!) .
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The legislation recognizes the importance of social impact assessments and participatory processes, including the involvement of local Panchayati Raj institutions, before proceeding with land acquisition (!) .
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The power to exempt projects from certain provisions of the Act, specifically under Section 10A, must be exercised in the public interest, with the satisfaction of the relevant authority being based on relevant material and subject to judicial review if challenged (!) (!) .
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The exemption notifications issued by the State Government must demonstrate that the projects are vital to national security, defense, rural infrastructure, affordable housing, industrial corridors, or social infrastructure, and that such exemptions are justified by the public interest, not arbitrarily or broadly without specific consideration (!) (!) .
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The broad application of exemptions without specific regard to the necessity or public interest for individual projects can be legally vulnerable, especially if the exercise of power appears to be a colorable exercise or motivated by extraneous considerations (!) (!) .
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The lapsing of ordinances and notifications related to exemptions occurs when the situation is not irreversible, and no final acquisition or possession has taken place, requiring that subsequent land acquisition adhere to the provisions of the Act, including social impact assessments and fair procedures (!) (!) .
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The specific case in question involved land acquired ostensibly for a public purpose but primarily used to supply water to private power plants, which raised questions about the legality and purposefulness of the acquisition process (!) (!) .
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The acquisition process was found to be improperly conducted, particularly because the mandatory procedures under the relevant Act and Rules were not followed, and the exemption was deemed a colorable exercise of power aimed at benefiting private entities rather than serving genuine public interest (!) (!) .
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The court emphasized that any exemption or exercise of powers must be based on relevant, material grounds, and that broad or unjustified exemptions undermine the purpose of the legislation and violate principles of fairness and legality (!) (!) .
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As a result, the notifications and proceedings related to the land in question were quashed, reaffirming the necessity of complying with the statutory procedures and the importance of exercising powers within the bounds of law and public interest (!) (!) .
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The decision clarifies that the government can proceed with lawful land acquisition in accordance with the Act, but any prior illegal or improperly exercised exemption must be set aside to uphold the rule of law and protect affected landowners' rights (!) .
Please let me know if you need further analysis or specific legal guidance based on these points.
For the Petitioner:Mr. Sourabh Sharma and Mr. Tarkeshwar Nande, Advocates.
For the Respondent:Mr. Prasun Kumar Bhaduri and Mr. Shashank Thakur, Govt. Advocates, Mr. B. Gopa Kumar, Assistant Solicitor General
For the Amicus Curiae:Mr. Saurabh Dangi and Ms. Aditi Singhvi, Advocates.
1. Since common question of law and fact is involved in these three writ petitions, they were clubbed together and heard together and are being disposed of by this common order.
2. This batch of writ petitions are directed challenging notification issued under Section 11(2) of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (hereinafter referred to as 'the Act of 2013') and further challenges the notification dated 2-3-2015 and notification dated 27-5-2015 as bad and unsustainable in law.
3. Essential facts necessary to adjudicate lis between the parties are as under :-
(Facts stated in WP(C)No.1443/2015 are taken for sake of convenience)
(3.1) That, the petitioners' land bearing Khasra No.382/2, area 0.25 acre, at Village Apri, District Janjgir-Champa was subjected to acquisition under the Land Acquisition Act 1894, but before acquisition could take place, act of 1894 was repealed and new act hereinafter Act of 2013 came into force with effect from 1-1-2013 leading to dropping of old land acquisition proceeding and initiation of new land acquisition proceedings under the Act of 2013 for acquisition of 55.172 hectares of land including the petitioners' land for public purpose that is Saradih Barrage Project by issuance of notification under Section 11 (1) of the Act of 2013.
(3.2) The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 was promulgated on 31-12-2014 inserting Chapter-III including Section 10-A in the Act of 2013 providing that the provisions of Chapter-II and Chapter-III shall not apply in certain projects. The State Government in exercise of power conferred under Section 10-A of the Ordinance issued general notification dated 2-3-2015 exempting all projects as stated in the first Ordinance from the application of Chapter-II and Chapter-III of the Act of 2013.
(3.3) Thereafter, on 1-4-2015, the Collector issued notification under Section 11 of Act of 2013 in light of notification dated 2-3-2015 proposing to acquire subject land including the petitioners' land, immediately and thereafter, the Right to Fair Compensation and Transparency in land acquisition Rehabilitation and Resettlement (Amendment) Ordinance, 2015 came into force with effect from 31-12-2014 inserting proviso to Section 10-A and subsection (2) to Section 10-A of Act of 2013. The State Government also issued subsequent notification dated 27-5-2015 inserting proviso to notification issued under Section 10-A of the Act.
(3.4) The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Second Ordinance, 2015 came into force with effect from 31-12-2014 and ultimately, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015 was issued to say that the Second Ordinance shall be lapsed on 31-8-2015.
(3.5) The writ petition has been filed stating that the Second Ordinance was issued for a limited period till 31-8-2015 and once that validity period of ordinance has expired, Section 10-A of the Act of 2013 also became inapplicable and therefore to acquire land the provisions of Chapter-II and Chapter-III are essential to be complied with. It has further been pleaded that Section 10-A of the Second Ordinance, 2015 exempted certain categories of projects with a condition mentioned in the provision, that the State Government impugned notification dated 2-3-2015 without complying the said provision, therefore the notification issued on 1-4-2015 under Section 11(1) of the Act of 2013 without complying Chapter-II and Chapter-III of the Act of 2013, is bad and unsustainable in law.
(3.6) The respondents/State of Chhattisgarh has filed return stating inter alia that land is being acquired for irriga
