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2005 DIGILAW 177 (HP)

KRISHNI DEVI v. STATE OF H. P.

2005-06-02

LOKESHWAR SINGH PANTA, SURJIT SINGH

body2005
JUDGMENT Lokeshwar Singh Panta, J. :- The petitioners, numbering ten in all have filed this petition under Article 226 of the Constitution of India, praying for writ in the nature of mandamus directing the respondents not to interfere and damage the standing crops, trees, orchards, and houses at village Kasol, Tehsil Sadar, District Bilaspur, until and unless they are paid compensation equal to the market value of the property, under Article 31-A of the Constitution of India and Section 17 of the Land Acquisition Act, 1894 and the order of this Honble Court dated 9.3.2004 (Annexure P/1) and for appointment of Local Commissioner to verify the actual facts or in the alternative since the acquisition has lapsed under Section 11-A of the Land Acquisition Act, 1894 (for short the Act) therefore, the lands of the petitioners be taken out of acquisition and proceedings be quashed qua them. 2. It is the case of the petitioners that they are owners and in possession of the lands at village Kasol, Tehsil Sadar, District Bilaspur Secretary (Multipurpose Power and Project and Electricity) to the Government of H.P. respondent No. 1 herein issued Notification No. Vidyut-Chh-(5)254/2000 dated 23.11.2000 under Section 17(4) of the Act intending to acquire land measuring 1274-15 bighas belonging to the petitioners and many other persons in village Kasol, Part-! Hadbast No. 113, Tehsil Sadar, District Bilaspur for public purpose, namely, construction of Koldam, Hydro Electric Project by National Thermal Power Corporation(N.T.P.C.)-respondent No. 4 herein Government of India undertaking. The said Notification was published in two News papers, namely Divya Himachal (Hindi Edition), Indian Express (English Edition) dated 27.11.2000 and in the official Gazette, Notification dated 23.11.2000 besides wide publicity has also been given in the village through Rapat Rojnamcha No. 133 dated 5.12.2000 by the Patwari Halqua Dhar Tatoh. The necessary measurement was got done to set out the boundaries of the land proposed to be acquired and plans were prepared in the presence of the land owners/interested persons and the representatives of the acquiring agency. The area was marked out and revenue papers of the land so measured were got prepared. The land intended to be acquired has been notified under emergency powers vesting under Section 17 of the Act, and the provisions of Section 5(A) of the Act1 were dispensed with. 3. The area was marked out and revenue papers of the land so measured were got prepared. The land intended to be acquired has been notified under emergency powers vesting under Section 17 of the Act, and the provisions of Section 5(A) of the Act1 were dispensed with. 3. The Land Acquisition Collector, H.P. State Electricity Board, Mandi-respondent No. 3 herein sent the case to respondent No. 1 to issue Notification under Sections 6 and 7 of the Act which was accordingly issued on 12.2.2001 for acquisition of 1144-02 bighas of land of the estate right holders. There is no clear mention in the said Notification that the land in question is being acquired/was being acquired under the emergency powers vesting under Section 17 of the Act and accordingly a declaration under Section 7 of the Act was also made and the H.P. State Electricity Board was directed to take order for acquisition of the land and before making the award, take possession of non-cultivable and cultivable land on the expiration of 15 days from the publication of the notice under Section 9 of the Act. 4. The petitioners filed Civil Writ Petition No. 101/2004 before this Court which came to be disposed of by a Division Bench on 9.3.2004 with the following observations :- "That since the acquisition has been resorted to under the emergency provisions contained in Section 17 of the act, it goes without saying that the State Government shall be bound, in all respects to comply with all the requirements of law as contained in Section 17 and without complying with the legal requirements contained in Section 17, the possession of the land in question shall not be taken. Of course, if the requirements as contained in Section 17 have already been complied with, this order shall not be construed as a prohibition or a restraint with respect to the taking over of the possession of the land by the competent authority." 5. Respondent No. 3 Land Acquisition collector in exercise of the powers vested in him under Section 17(1) of the Act" took over the physical possession of the land measuring 1106-16 bighas from the owner/right holders and handed over the same to Chief General Manager, N.T.P.C, Koldam-respondent No. 4 herein on 15.3.2003 after tendering 80% payment of the estimated compensation under sub-section 3(A) of Section 17 of the Act. The possession of land under houses/built up structures was allowed to remain with the right holders/ interested persons till further orders. The acquired land vested absolutely in the N.T.P.C. free from all enquiries. It appears that one Sunder Ram who is petitioner No. 9 in the present writ petition filed Civil Contempt Petition No 31/2004 in this Court which was dismissed by the Division Bench as withdrawn on 9.9.2004. It appears from the record that the petitioners filed representation dated 24.9.2004 through their Advocates, namely, Mr. H.K. Paul and Mr. Anup Rattan which was considered by the Land Acquisition Collector, Koldam in detail. The Collector Land Acquisition came to the conclusion that there was no merit in the contentions made by the representationists except for their claim for awarding compensation in lieu of built up structures and trees by way of supplementary award. A copy of the order of Collector Land Acquisition is placed on record as Annexure RV. The Land Acquisition Collector finally announced Award No. 17/2004 on 15.8.2004 awarding compensation to the tune of Rs. 71,85,73,250.00 to the petitioners and other interested persons whose lands were acquired. 6. The petitioners, in this writ petition stated that the respondents have not complied with the requirements as contained in Section 17of the Act and the order of this Court dated 9th March 2004 in CWP.No.101/2004 copy mark Annexure: P/1 has not been complied with in letter and spirit nor was the compensation awarded to them by the Collector at the market value prevailing at the time of issue of Notification under Section 4 of the Act for the lands under their set cultivation, trees, orchards growing thereon, standing crops and but up houses, nor any steps for providing to them alternative land for shifting and rehabilitation were taken and also no employment was given to them. The pith and substance of this writ petition is that the fundamental rights of the petitioners as enshrined under Article 21 and Article 31-A of the Constitution have been infringed and the respondents have taken the possession of their lands in violation of Section 11-A and Section 1.7 of the Act as the land acquisition proceedings had elapsed after the expiry of stipulated period of two years as also the market value of the land including trees, orchards, standing crops and buildings were not paid to them. 7. 7. In reply to this writ petition, respondent No. 3 the Land Acquisition Collector stated .that the proceedings under Sections 4 and 17 of the Act were initiated by the competent authority for the acquisition of the lands of the petitioners and many other estate right holders for the construction of Koldam, Hydro Electric Power Project by N.T.P.C. The estimated compensation was determined by him and 80% of the amount of compensation was paid to the petitioners and other interested persons in terms of sub-section (3-A) of Section 17 of the Act. The possession of the acquired land including the built up structure had been taken over from the right holders/owners and handed over to N.T.P.C. free from all encumbrances almost one year prior to the order passed by this Court in CWP. No. 101/2004. It is also stated that the fact of handing over of physical possession vide Annexure:R-1 had not been disclosed by the petitioners in the earlier writ petition as well as in Civil Contempt Petition No. 31/2004. He stated that after complying with the provisions of the Act, he has announced final award on 15.8.2004, a copy whereof is placed on record as Annexure:R-2 and 100 per cent amount of compensation of lands, trees and built up structures has been made to the right holders/owners of the village situated upto a height of up to 533 meters from sea level, whereas the proceedings for payment of compensation for built up structures and trees are under process and supplementary award shall be made after completing the proceedings. The petitioners and other owners of the acquired land have received the entire amount of compensation and copies of acquaintance rolls in support of the receipt of the amount of compensation by them are placed on record as Annexure R-III and R-IV. Some of the petitioners have also filed reference under Section 18 of the Act. It is stated that the entire relevant factor such as comparable sales method etc. has been considered for awarding compensation under the Act while making the award and in case any person interested who has not accepted the award is entitled to file application under Section 18 of the Act for reference to the Court. It is stated that the entire relevant factor such as comparable sales method etc. has been considered for awarding compensation under the Act while making the award and in case any person interested who has not accepted the award is entitled to file application under Section 18 of the Act for reference to the Court. The Land Acquisition Collector has specifically stated that while taking the possession of the land, no damage was done to the standing crops and as such the petitioners are not entitled to get any compensation. He also stated that the possession of the built up structures is with the right holders/owners. The trees coming under the construction of the road for the purpose of construction of Koldam project have been evaluated for the purpose of determining compensation which shall be awarded in the supplementary award. 8. In reply to the writ petition, N.T.P.C. has reiterated and reasserted the averments made by the Land Acquisition Collector in his reply. Further, it is stated that the land of the petitioners and other interested persons was acquired under Section 17 of the Act and as such the provision of Section 11-A is not applicable to the facts of the present case. The question of appointing Local Commissioner does not arise as the possession of the acquired land has already been taken by N.T.P.C. on 15.3.2000 and the entire amount of compensation stands paid to the petitioners and other interested persons after the award was passed by the Land Acquisition Collector. 9. In rejoinder to the replies of the respondents, the petitioners have reasserted the averments made in the writ petition. They have further stated that the possession of the land is still with them and they are still cultivating the crops raised by them on the acquired land. Their main grievance is that they were not paid compensation at the market value of the land including building structures and fruit and non-fruit bearing trees standing thereon. 10. We have heard learned Counsel for the parties. Mr. K.S. Patial, learned Senior Counsel vehemently contended that the acquisition of land of the petitioners by the State exercising its power of eminent domain offends the right to livelihood or right to shelter of the petitioners which is inbuilt in the right to life as enshrined in Article 21 of the Constitution of India as the petitioners are not provided alternative accommodation. We are afraid this contention cannot be accepted. The petitioners and other interested persons whose holdings were acquired under Section 17 of the Act were paid 80 per cent of the compensation by the Land Acquisition Collector as estimated by him under Section 17(3-A)(a) of the Act. Award No. 17 of 2004, copy mark Annexure-II, awarding market value of the acquired land and compensation for houses/built up structures of the owners has been passed by the Collector on 15.8.2004 as per the provisions of the Act. The entire compensation for the acquired land of the petitioners has been paid to them pursuant to the said award. Some of the petitioners have even filed reference under Section 18 of the Act. The Supreme Court in New Reviera Coop. Housing Society and another v. Special Land Acquisition Officer and others, 1996(1) Supreme Court Cases 731 dealing with Articles 300-A and 21 of the Constitution of India held as under :- (SCC Page 731 Para 8) Para-8.................................. “Right to shelter is undoubtedly a fundamental right. A person may be rendered shelter less, but it may be to serve larger public purpose. Far from saying that he will be rendered shelter less to the Supreme Court did not circumscribe the State’s power of eminent domain, even though a person whose land is being acquired compulsorily for the public purpose is rendered shelter less. If that contention is given credence no since in all such cases the owner/interested person would be deprived of his property. He is deprived of it according to law. Since the owner is unwilling for the acquisition of his property for public purpose, Section 23(2) provides solatium for compulsory acquisition against his wishes. Under those circumstances, it cannot be held that the acquisition for public purpose violates Article 21 of the Constitution or the right to livelihood or right to shelter or dignity of person." 11. The order of this Court dated 28.12.2004 reveals that the learned Advocate General pointed out to the Court that till the awarded compensation in respect of the houses and trees is also paid, the petitioners and other similar situate persons will not be dispossessed from houses etc. Regarding rehabilitation, the learned Advocate General pointed out that the land is available with respondent No. 4-N.T.P.C. who has initiated steps for its development so that plots can be carved out. Regarding rehabilitation, the learned Advocate General pointed out that the land is available with respondent No. 4-N.T.P.C. who has initiated steps for its development so that plots can be carved out. As and when needful is done, those will be put at the disposal of the Deputy Commissioner, Bilaspur for allotment to the petitioners and other similar situate persons found entitled thereto. Regarding providing of employment learned Advocate General submitted that the scheme has been framed. In that view of the matter, the petitioners cannot be heard to say that their fundamental right under Article 21 of the Constitution of India has been violated by the respondents by acquiring their lands etc. 12. The next contention of the learned senior Counsel is that as the petitioners are not paid full compensation equal to market value of the land, trees, standing crops and other structures as provided in second proviso Clause (1) of Article 31-A and therefore, their fundamental right under this Article is violated. The second proviso to Clause (1) of Article 31-A of the Constitution in clear and unambiguous terms prohibits making of any law which does not contain a provision for payment of compensation at a rate which shall not be less than the market value thereof. The Act is consistent with the second proviso to Art.31-A, because it provides for payment of compensation at the market value of the land acquired. 13. Mr. Patial, learned senior Counsel relied upon the judgment in the case of Airports Authority of India v. Satya gopal Roy and others, AIR 2002 Supreme Court 1423 and Assistant Commissioner-cum-Land Acquisition Officer, Bellary v. S. T. Pompanna Setty, AIR 2005 Supreme Court 749 to contend that the Land Acquisition Collector in his award has not made determination of market value of land and building/land and trees as one unit and as such the award is in violation of Article 31-A. We have gone through the ratio of the above said judgments of the Apex Court. Heir Lordships have held that the market value of land and building/land and trees is to be determined not as a separate units but as one unit. In the present case, the Land Acquisition Collector has awarded compensation of the land to the petitioners and other interested persons on the basis of the market value. Heir Lordships have held that the market value of land and building/land and trees is to be determined not as a separate units but as one unit. In the present case, the Land Acquisition Collector has awarded compensation of the land to the petitioners and other interested persons on the basis of the market value. The compensation of houses/built up structures were also awarded to the persons whose land was acquired along with built up structures and houses. The petitioners have filed Xerox copy of the notice issued to them by the Land Acquisition Collector under Section 9 of the Act requesting them to file objections, if any, in regard to the acquisition of their houses and trees. In the course of hearing of the Petition, the learned Counsel for the petitioners represents that objections to the notice have been filed by them which are under consideration of the "Land Acquisition Collector. It is the categorical statement of the respondents in their affidavit(s)-in-reply that the compensation for the houses/buildings and standing trees, being acquired will be awarded to them in a supplementary award. The petitioners have accepted 100% amounts of compensation of their lands amounting to more than Rs. 3 crores, as per the award dated 15.8.2004. The Land Acquisition Collector has placed on record Photostat copies mark Annexures III and IV of the statements to prove that the petitioners have received 100% amounts of compensation awarded to them for the land acquired. As noticed above, some of the petitioners have also filed reference under Section 18 of the Act. The District Judge is empowered under Section 23 of the Act to determine the compensation of the land acquired. Under the scheme of the Act if the owner is dissatisfied with the determination of compensation made by the Collector under Section 11, a reference under Section 18 is provided for and the court would, on adduction of evidence by the parties determine proper compensation payable for the acquired land under Section 23(1) of the Act. Burden is on the petitioners to prove that the compensation offered is inadequate and seek determination of compensation under Section 23(1). The petitioners are, thus, entitled to receive enhanced amount of compensation for their acquired land, if they are not satisfied with the determination of the market value assessed by the Collector. Burden is on the petitioners to prove that the compensation offered is inadequate and seek determination of compensation under Section 23(1). The petitioners are, thus, entitled to receive enhanced amount of compensation for their acquired land, if they are not satisfied with the determination of the market value assessed by the Collector. They are also entitled to seek reference under Section 18 of the Act, if they are still aggrieved against the supplementary award to be made by the Collector awarding compensation for their building, structures and standing trees. Thus, the ratio of the above said judgments is not applicable at this stage in the facts and circumstances of the case. 14. In the case of Kiran Tandon v. Allahabad Development Authority and another, reported in 2004(10) Supreme Court Cases 745 their Lordships have reiterated that determination of value of property comprising land, buildings, trees thereon should be valued as one unit but there is no hard-and-fast rule in this regard and they can be separately assessed if large portion of land is lying vacant and is capable of better use. In the present case, as noticed above, a large area to the extent of 1144-02 bighas of land was acquired for the purpose of construction of Koldam. Thus, considered, we are of the view that there is no substance in the contention raised by the learned senior Counsel for the petitioners that the acquisition of their land violates Art.31-A of the Constitution of India. 15. It was also urged by the learned senior Counsel that as the award is not made within the period of two years from the date of Section 6 declaration, the acquisition has elapsed under Section 11-A of the Act, and therefore, the acquisition proceedings qua the petitioners be quashed. This contention also deserves to be rejected. In Satendra Prasad Jain and others v. State of U.P and others, AIR 1993 Supreme Court 2517, it is held : "when Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation." 16. Again in U.P. Jal Nigam Lucknow through its Chairman and another v. M/s. Kalra Properties (P) Ltd. Lucknow and others, AIR 1996 Supreme Court 1170, it was held that once possession was taken under Section 17(2) land stood vested in Government. Unless notification withdrawing acquisition is passed, even if award is not passed, Section 11-A would not apply and acquisition would not lapse. In Allahabad Development Authority v. Nasiruzzaman and others, 1996(6) Supreme Court Cases 424, their Lordships have held that Section 11-A does not apply to cases of acquisitions under Section 17 where possession is already taken and land has vested in the State. The Notification under Section 4(1) and declaration under Section 6 does not lapse due to failure to make an award within two years from the date of the declaration. In the case in hand the respondent-N.T.P.C. in its reply affidavit has categorically stated that declaration under Section 6 of the Act was issued on 19.3.2001 and the possession of the land was taken by the Land Acquisition Collector on 15.3.2003 in exercise of the powers vested in him under Section 17(1) of {he Act as stated in Annexure R-1. In the light of the above settled position of law, Section 11-A of the Act can have no application to the cases of acquisition under Section 17 of the Act because the land has already vested in the Government the possession of which was handed over to Chief Manager, H.P., N.T.P.C., Koldam Project on 15.3.2003 by the Land Acquisition Collector. The Collector has noticed in Annexure R-1 that the possession of the land under houses, built up structures shall remain with right holders/interested persons till further orders. Thus, this contention also does not merit acceptance. 17. The Collector has noticed in Annexure R-1 that the possession of the land under houses, built up structures shall remain with right holders/interested persons till further orders. Thus, this contention also does not merit acceptance. 17. The learned senior Counsel for the petitioners lastly contended that un-explained inordinate delay in the finalization of the proceedings, under the Land Acquisition Act would amount to colourable exercise of powers and thus vitiate the proceedings. In support of this submission, reliance is placed on the judgment in the case of Radhey Sham Gupta and others v. State of Haryana and others, AIR 1982 Punjab and Haryana 519 (Full Bench). We have read the said judgment. In that case the State Government issued notice under Section 4 of the Act for acquiring a huge compact area for the public purpose on 8th September, 1972. Notification of declaration under Section 6 was issued on 19th November, 1972. On 5th August, 1981, the Land Acquisition Collector purposing to act under Section 9 of the Act issued notice to the predecessor-in-interest of the petitioners for their appearance, for submitting a claim regarding the value of the land. The grave men of the petitioners case was that the issuance of the impugned notice, after nine years of the original notification, under Section 4 was a colourable exercise of power motivated by considerations entirely extraneous and collateral to the original purpose of the acquisition. In the facts and circumstances of that case, the learned Judges of the Punjab and Haryana, High Court came to the conclusion that the notice under Section 9, now issued, was a merely colourable exercise of power to take over the land of the petitioners at pegged-down prices of a full decade earlier and long after the original purpose of acquisition stood virtually satisfied. In the circumstances the impugned Notification as also the acquisition proceedings (in that case) qua the petitioners were quashed. The ratio of the said judgment, in our view, is not applicable in the facts and circumstances of the present case. In the present case as noticed above, Notification under Sections 4 and 17 of the Act was issued by the State Government on 23.11.2000 whereas Notification under Sections 6 and 7 was subsequently issued on 12.2.2001. The ratio of the said judgment, in our view, is not applicable in the facts and circumstances of the present case. In the present case as noticed above, Notification under Sections 4 and 17 of the Act was issued by the State Government on 23.11.2000 whereas Notification under Sections 6 and 7 was subsequently issued on 12.2.2001. The possession of the land acquired was taken by the Collector on 15.3.2003 and handed over to the N.T.P.C. on the same date after tendering 80 per cent payment of the estimated compensation to the petitioners and other interested persons in terms of Section 3(A) of Section 17 of the Act. The award has been passed by the Collector on 15.8.2004 and 100 per cent amount of compensation has been paid to the petitioners and other interested persons. It is by now well settled that after the award is passed by the Land Acquisition Collector, no writ petition can be filed challenging the acquisition notice or any proceeding there under (See : C. Padma and others v. Dy. Secretary to the Govt. of T.N. and others, reported in 1997(2) SCC 627; Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and others, reported in 1996(11) SCC 501 followed in The Municipal Council, Ahmed nager and another v. Shah Hyder Beig. and others, 2000(1) Scale 124. 18. No other contention was raised by the learned Counsel for the parties. 19. For the above said reasons, we find no merit in this writ petition and the same is accordingly dismissed. The parties are left to bear their own costs. Miscellaneous application(s) if any pending shall also stand disposed of.