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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir & Tarlok Singh Chauhan, JJ.
Seli Hydro Electric Power Company Limited – Petitioner
Versus
State of Himachal Pradesh and Others – Respondents
CWP No. 9566 of 2014
Decided On : 17.6.2015
LAND ACQUISITION - SECTION 4 NOTIFICATION - LAPSE - EXTENSION OF TIME - RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 - SECTION 19 (7) - SECOND PROVISO - APPLICABILITY - DELAY IN PROCEEDINGS - PREJUDICE TO LAND OWNER - SECTION 6 OF THE LAND ACQUISITION ACT, 1894 - SUBJECT TO PART VII - ACQUISITION OF LAND FOR COMPANIES - SECTIONS 39, 40 AND 41 - CONDITIONS PRECEDENT - LIMITATION PERIOD OF ONE YEAR - EXCLUDED - HARMONIOUS CONSTRUCTION OF STATUTE - SECTION 24 (1) (A) OF THE 2013 ACT - BENEFIT OF COMPENSATION UNDER 2013 ACT - LAND OWNERS IN PROCEEDINGS INITIATED UNDER 1894 ACT - INTENT OF THE LEGISLATURE - TIMELY AND TRANSPARENT ACQUISITION OF LAND FOR PROJECTS OF GENERAL PUBLIC INTEREST - DELAY IN ACQUISITION PROCEEDINGS - LOSS TO LAND OWNER - FRESH ACQUISITION PROCEEDINGS - NOT JUSTIFIED - SECOND PROVISO TO SECTION 19 (7) OF THE 2013 ACT - TO BE INVOKED - SECTION 4 NOTIFICATION UNDER 1894 ACT - VALID AND SUBSISTING AT THE TIME OF COMING INTO FORCE OF 2013 ACT - BENEFIT OF SECOND PROVISO TO SECTION 19 (7) OF THE 2013 ACT - TO BE APPLIED - DEFAULT IN DISCHARGE OF STATUTORY DUTIES BY RESPONDENTS - CANNOT BE ALLOWED TO PREJUDICE LAND OWNER.
Fact of the Case:
Petitioner sought directions for quashing letter issued by the State stating that the notification issued under Section 4 of the Land Acquisition Act, 1894 (1894 Act) stands lapsed and directed the Land Acquisition Collector, Udaipur to initiate fresh acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act). Petitioner further prayed for quashing the opinion of the Principal Secretary (Law) on the basis of which the impugned letter has been issued. Lastly, petitioner sought a writ of mandamus seeking directions to the respondents to proceed with deliberate speed to conclude the proceedings under Section 6 of the Land Acquisition Act, 1894 or in the alternative to proceed with the Land Acquisition proceedings initiated by way of Section 4 Notification under the second proviso to Section 19 (7) of the Act of 2013.
Finding of the Court:
The Court held that the impugned letter issued by the State Government and the opinion of the Principal Secretary (Law) relied upon therein were quashed. The Court directed the respondents to proceed with the present case under the second proviso to Section 19 (7) of the 2013 Act and extend the time for issuance of a notification for declaration of purpose. The Court further directed the respondents to continue with the notification issued under Section 4 of the Land Acquisition Act, 1894.
Issues: Whether the notification issued under Section 4 of the Land Acquisition Act, 1894 (1894 Act) stands lapsed and directed the Land Acquisition Collector, Udaipur to initiate fresh acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act).
Ratio Decidendi: The Court held that the limitation period of one year prescribed under Section 6 of the Land Acquisition Act, 1894 is excluded in case of acquisition of land for a company. The Court further held that the rigors of limitation as set forth in proviso 1 (ii) of Section 6 (1) of the Act have been relaxed under the 2013 Act inasmuch as the second proviso to Section 19 (7) thereof clearly provides for and vests with the respondents the power to extend one year period for making a declaration of purpose in circumstances that justify such an extension.
Final Decision: The Court allowed the writ petition, quashed the impugned letter and opinion, and directed the respondents to proceed with the present case under the second proviso to Section 19 (7) of the 2013 Act and extend the time for issuance of a notification for declaration of purpose. The Court further directed the respondents to continue with the notification issued under Section 4 of the Land Acquisition Act, 1894.
Tarlok Singh Chauhan, J.
1. The petitioner has sought directions for quashing letter issued by the State on 5.8.2014 stating therein that the notification issued under Section 4 of the Land Acquisition Act, 1894 (for short 1894 Act) stands lapsed and directed the Land Acquisition Collector, Udaipur to initiate fresh acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 2013 Act). The petitioner has further prayed for quashing the opinion of the Principal Secretary (Law) on the basis of which the impugned letter has been issued. The petitioner has lastly sought a writ of mandamus seeking directions to the respondents to proceed with deliberate speed to conclude the proceedings under Section 6 of the Land Acquisition Act, 1894 or in the alternative to proceed with the Land Acquisition proceedings initiated by way of Section 4 Notification under the second proviso to Section 19 (7) of the Act of 2013.
2. The brief facts of the case are that on 9.6.2008 the Government of Himachal Pradesh invited bids for setting up of 320 MW Hydro Electric Power Plant in District Lahaul and Spiti. On 28.2.2009 SELI Project was awarded to M/s Hindustan Power-projects Private Limited (then known as Moser Baer Projects Private Limited).
3. On 22.3.2011 Hindustan Power-projects Private Limited entered into a Pre-Implementation Agreement with Government of Himachal Pradesh. Simultaneously, a tripartite agreement was executed between the Government of Himachal Pradesh, Hindustan Power-projects Private Limited and petitioner for transferring all assets, liabilities, obligations, privileges, NOCs of Hindustan Power-projects Private Limited arising under the terms of the Pre-Implementation Agreement to the petitioner.
4. On 9.9.2011 Directorate of Energy increased the installed capacity of the SELI Project from 320 MW to 400 MW subject to fulfillment of certain terms and conditions provided therein.
5. On 15.11.2011 a joint Inspection Committee consisting of respondent No.5, Divisional Forest Officer, Range Forest Officer, Assistant Engineer, H.P. Public Works Department, Assistant Engineer, HPSEB Limited and Assistant Engineer, I&PH Department, conducted a joint inspection of the project sites proposed by the petitioner and recommended diversion of forest land admeasuring 276.1875 Ha under Section 2 of the Forest Conservation Act, 1980 and acquisition of private land measuring 16.7779 Ha under the Land Acquisition Act, 1894.
6. On 28.2.2012 inescapability certificate dated 27.2.2012 was forwarded by the Deputy Commissioner, Lahaul and Spiti to respondent No.5 clearly stating therein that the land required for the construction of the SELI Project was inescapable and the landowners would not be rendered landless due to acquisition of the proposed land.
7. On 3.3.2012 petitioner submitted a proposal to respondent No.5 for acquisition of private land required for the construction of SELI Project under Section 4 of the 1894 Act. It was requested to acquire private land admeasuring 198-12-19 bigha under the 1894 Act.
8. On 9.3.2012 respondent No.5 wrote to the Deputy Commissioner, District Lahaul and Spiti, recommending acquisition of 198-12-19 bigha of land in revenue villages Udaipur, Salpat, Madgran, Kurched and Salgran in favour of the petitioner. It was also requested that the proposal for the acquisition be forwarded to respondent No.1 for approval and issuance of notification under Section 4 of the 1894 Act.
9. In compliance with Section 4 of the 1894 Act, the preliminary notification for acquisition of land was issued on 7.3.2013 by the Government of Himachal Pradesh. On various dates, Section 4 Notification was published in various newspapers and wide publicity was given to Section 4 notification in the locality through the field revenue agency of the area concerned.
10. On 25.4.2013 Section 4 Notification, being Notification No. Vidyut-CH: (5)-5/2
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