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Madhya Pradesh High Court · body

2008 DIGILAW 352 (MP)

KANHAIYALAL PATEL v. UNION OF INDIA

2008-03-03

DIPAK MISRA, R.S.JHA

body2008
Judgment DIPAK MISRA, J. ( 1. ) The petitioner No.l, Sarpanch of Gram Panchayat, Padariya, petitioner No.2 a social worker and petitioner No.3, Janpad Adhyaksha, Chawarpatha and a social activist, describing themselves as pro bono publico have invoked the extraordinary jurisdiction of this Court and prayed for calling for the entire record relating to grant of compensation in the Rajmarg area, Narsinghpur in respect of persons whose land have been acquired for construction of 4-6 lane of NH-26, issue of appropriate direction to an independent authority or agency of the State Government or the Central Government to investigate into the matter pertaining to grant of compensation, to quash the entire proceeding for compensation from the stage of panchnama itself, command the authorities concerned to prepare panchnama after granting opportunity to the persons whose lands have been acquited and to fix the proper compensation to the land oustees. ( 2. ) The facts which are exposited are that the petitioners are the persons who are espousing the cases of the persons whose lands have been acquired in village Lolri in respect of certain lands situated in Bandobast No.418, P.C.No.9, Tahsil Tendukheda, District Narsinghpur. The respondent No.l, Ministry of Shipping, Roads and National Highway, is responsible for building, maintenance and upkeep of national highways in the country. It extends the technical and financial support to the State Government for development of State roads and roads of inter-state connectivity and economic importance. It evolves standard specifications for roads and bridges in the country. The respondent No.4, the competent authority under the provisions of National Higher Act, 1956 (for brevity the 1956 Act) is dealing with the cases relating to scheme of rehabilitation and uprading of NH-26 from Sagar to Rajmarg Choraha (Barman). As pleaded, in August, 2004 a rehabilitation scheme for rehabilitating and upgrading NH-26 from Sagar to Rajmarg Chowraha (Barman) into 4-6 lane carry ways was floated by the National Highway Authority of India Limited, the respondent No.2 herein. The said scheme has been brought on record as Annexure-P-1. In the said scheme the petitioners who are the residents of Narsinghpur districts are also affected alongwith other 1000 families. Although length of the project road is only 10 Kms. passing through Narsinghpur District yet nearly 1000 families are affected. The said scheme has been brought on record as Annexure-P-1. In the said scheme the petitioners who are the residents of Narsinghpur districts are also affected alongwith other 1000 families. Although length of the project road is only 10 Kms. passing through Narsinghpur District yet nearly 1000 families are affected. For the purpose of acquisition a notification dated 18.3.2005 was published in newspaper dated 16.4.2005 under sub-section (1) of section 3-C of the 1956 Act. A general notice dated 26.8.2006 was published in Dainik Bhaskar on 30.8.2006 informing the persons of Tahsil and villages whose names are given in the general notice that they should file claim/objection in respect of determination of compensation within a period of 21 days before the competent authority. In the said publication names of two villages of Tahsil Tendukheda are given and there was no mention of village Lolri. It is averred that notification under Section 3-D(2) vesting the land of village Lolri in the Central Government was published in the Gazette of India dated 14.3.2007 and was published in Dainik Bhaskar on 30.4.2007. An order dated 31.8.2007 has been passed in which compensation in respect of village Lolri, Number Bandobast 418, P.C.No.9, Tahsil Tendukheda, District Narsinghpur has been fixed without complying with the provisions contained in section 3-G of the Act which mandates notification in respect of land for which compensation is being determined. It is asseverated that no notice or for that matter notification in respect of village Lolri, Settlement No.418, Tahsil Tendukheda has been published or notified in the official gazzette or otherwise in the local newspaper as required under Section 3-G of the Act and hence, order dated 31.8.2007 fixing the compensation is vulnerable. Reference has been made to the panchnamas allegedly prepared behind the back of the petitioners and other persons which would demonstrate, as set forth in the petition, that they have been prepared at one go in the office but not at the relevant site. It is averred that the Panchanamas contain signatures of 12 persons who are common in all the panchnamas. None of these are either residents or having any shop or establishment on the place adjacent to the place of which the panchnamas are prepared. The aforesaid action shows arbitrariness exercise of power and clearly shows the illegal manner in which the panchnamas have, been prepared. None of these are either residents or having any shop or establishment on the place adjacent to the place of which the panchnamas are prepared. The aforesaid action shows arbitrariness exercise of power and clearly shows the illegal manner in which the panchnamas have, been prepared. It is the further case of the, petitioners that the respondents No.3 and 4 have acted in an extremely whimsical manner in fixing the claims of compensation of such persons whose lands have been acquired for the purpose of building of 4-6 lane highway including the lands of the petitioners. ( 3. ) It is set forth that the lands of nearly about 400 persons have been acquired under the provisions of the 1956 Act it is asserted that there is rampant corruption in the grant of compensation. The respondent No.4 in connivance with the respondent No.3 and the lower staff have granted excess compensation only in those cases in which their illegal demands have been satisfied by the persons concerned. In the cases of petitioners and the like who could not fulfill illegal demands they have been granted compensation at a much lower rate. In some of the cases the compensation is even half than the market value of the land acquired. On the other hand the respondent No.4 has granted compensation for the non-existing houses. By common order dated 31.8.2007 the 4th respondent has decided the cases of compensation of all the persons whose lands are situated in village Lolri. It is alleged that there has been immense illegality in determination of compensation and discrepancies in preparation of panchnamas. Certain instances have been given how the illegality have crept in relation to grant of compensation. It is urged that hotel Surya has been extended compensation for four bores whereas there is only single bore in the hotel. Certain cases of landowners who have been given less compensation though they were ought to have been given on the basis of market prices have been cited. That apart, various assertions have been made in the writ petition which need not be referred to as it only multiplies the number of persons who have been granted compensation at a lower rate. ( 4. That apart, various assertions have been made in the writ petition which need not be referred to as it only multiplies the number of persons who have been granted compensation at a lower rate. ( 4. ) As pleaded, the residents who have been affected had submitted a representation on 06.10.2007 to the Collector, Narsinghpur stating that there have been discrepancies in the grant of compensation and serious illegalities have been committed in the same. In the representation many an instance have been given but as the Collector took no action, the Commissioner, Jabalpur was apprised of the situation with regard to the rampant corruption in the grant of compensation. Be it noted some examples have been noted relating to grant of compensation on the ground that they have been granted in a malafide manner on certain considerations. The nature of allegations are that certain compensations have been granted in respect of constructions which do not exist, some owners who have additional construction have not been paid anything and in certain cases less compensation has been paid though there exist prima facie case for grant of higher compensation and that no difference has been made between the diverted and non-diverted land. ( 5. ) In the grounds it is urged that by non-following the statutory provisions as certained in specially section 3-D and 3-G of the Act vitiates the entire proceeding of fixation of compensation and, therefore, the same deserves to be quashed. It is also urged that preparation of panchnamas by sitting in the office makes them susceptible and liable for being set aside. It is further urged that action relating to preparation of panchnamas behind the back of the petitioner smacks of arbitrariness and is violative of Article 300 of the Constitution of India. By such an action of the authorities the poor people have been put to suffer and, therefore, the culprits should be brought to book. It is also contended that the compensation has been fixed on the basis of rate available in the year 2004-05 at the time of publication of notification whereas they have been granted compensation in the year 2007 in the month of November after a lapse of three years. In this backdrop various reliefs have been sought as have been stated earlier. ( 6. In this backdrop various reliefs have been sought as have been stated earlier. ( 6. ) Be it placed on record that an application for amendment was filed forming the subject-matter of I.A. No. 1905/2008 wherein order dated 22.9.2007 is called in question being violative of Article 14 of the Constitution on the ground that it has been based on the report of the revenue authorities. Various authorities have been sought to be arrayed as party. In the application for amendment it is urged that order dated 22.9.2007 is invalid as it has come into existence in contravention of the statutory provision. It is put forth that land has been acquired without any adjudication whatsoever and the compensation has been determined behind the back of the petitioners. It is also contended that the notificatiion dated 18.3.2005 ;is violative of provisions contained in Sections 3A(1) of the Act as it suffers from vagueness inasmuch as said notificatioin does not give brief description of the land. It is worth noting that a prayer has been incorporated to declare Section 3 J of 1956 Act as unconstitutional. It is apposite to state that a writ petition has been filed by petitioner No.l wherein a prayer has been made to declare the said provision as unconstitutional being hit by Article 14 of the Constitution and further to hold that land owners are entitled for additional market value under Section 28 of the Land Acquisition Act, 1894. ( 7. ) We have heard the learned counsel for the parties independently in the said case and, therefore, amendment as far as present case is concerned is allowed to the extent it challenges the notification and process of determination of compensation. We may note here, Mr. Dharmendra Sharma, Asstt. Solicitor General has no objection for allowing the said amendment and accordingly it is allowed to that extent and the contentions raised therein shall be adverted to by us. ( 8. ) A counter affidavit has been filed by the respondents 1 to 3 contending inter alia, that a gazette notification has been published under Section 3A of the Act on 23.3.2005 which featured the name of the village Lolari and there has been another gazette notification under Section 3D of the Act on 25,8.2005 as per Annexure R-2. ( 8. ) A counter affidavit has been filed by the respondents 1 to 3 contending inter alia, that a gazette notification has been published under Section 3A of the Act on 23.3.2005 which featured the name of the village Lolari and there has been another gazette notification under Section 3D of the Act on 25,8.2005 as per Annexure R-2. On the basis of the aforesaid notifications the competent authority published notification under Section 3G on of the 1956 Act 21.11.2006 as per Annexure R-6. On the bais of the aforesaid the competent authority had passed the award on 31.8.2007 and 22.9.2007. Reference has been made to awards passed as per Annexure R-4 and R-5. It is contended that on the base of the award the Project Director of the NHAI, PIU, Narsingpur has prepared the compensation cheques for the land and the structures standing therein. Be it noted, the said references have been made exclusively with regard to the land of the petitioners 1 and 2. It is also asserted that the amount of compensation has been determined in respect of the land belonging to other persons and awards have been passed. It is also stated that the land of the respondent No.3 has not yet been acquired for project. Reference has been made to the common order dated 31.8.2007 by which the determination has been made in respect of compensation payable to the petitioners 1 and 2 and all other affected persons of Tendukheda, Narsingpur. It is specifically put forth that the contention that there has been no notification published vesting the land in Central Government under Section 3 D of the Act and nor there has been publication of the notification in the local news papers in respect of the village Lolari is totally incorrect and misguided inasmuch as the same has been published in local newspapers on 21.11.2006 and compensation has been awarded by the competent authority on 31.8.2007 after conducting many public meetings at Lolari village and after due satisfaction of the villagers the award has been passed. It is put forth that there has been suppression of material facts. It is contended that the competent authority has passed a second compensation award for left over persons in Lolari village on 12.10.07 as per Annexure R-6 after following the due procedure. It is put forth that there has been suppression of material facts. It is contended that the competent authority has passed a second compensation award for left over persons in Lolari village on 12.10.07 as per Annexure R-6 after following the due procedure. It is highlighted that except the petitioners 1 and 2 almost all the project affected persons have accepted the compensation amount and all of them have shifted to other places. It is also the stand in the return that on 26.8.06 village Lolari has not been included in the publication but the name of the said village was published in the daily newspaper on 29.11.2006. It is also set forth that there has been no procedural irregularities and entire gamut of the procedures as contemplated under the Act have been complied with. It is the case of the respondents that the compensation has been awarded as per law. It is the further stand in the return that if there is any grievance relating to fixation of amount of compensation the petitioners are entitled to approach the arbitrator as envisaged under Section 3G (5). ( 9. ) We have heard Mr. H.-K. Upadhyay, learned counsel for the petitioners and Mr. Dharmendra Sharma, learned Additional Solicitor General for the Union of India. ( 10. ) To appreciate the facts, grounds urged and the nature of litigation it is appropriate to scan the anatomy of the 1956 Act. Section 3 is the dictionary clause which defines the competent authority and Land. Section 3A deals with the power to acquire land, etc. The said provision reads as under: 3A. Power to acquire land, etc. - (1) where the Central Government is satisfied that for a public purpose any land is required for building, maintenance, management or operation of a national highway or part thereof, it may. by notification in the Official Gazette, declare its intention to acquire such land. (2) Every notification under sub-section (1) shall give a brief description of . the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language." ( 11. ) Section 3B relates to power to enter for survey, etc. (2) Every notification under sub-section (1) shall give a brief description of . the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language." ( 11. ) Section 3B relates to power to enter for survey, etc. which postulates that on the issue of a notification under sub-section (1) of Section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf to make inspection, survey, measurement, valuation or inquiry and do certain other things. ( 12. ) Section 3C provides for hearing of objections. It reads as under: 3C. Hearing of objections. - (1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of Section 3 A, object to the use of the land for the purpose of purposes mentioned in that sub-section. (2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation.- For the purpose of this sub-section, "Legal practitioner" has the same meaning as in clause (i) of sub-section (1) of Section 2 of the advocates Act, 1961 (25 of 1961) " (3) Any order made by the competent authority under sub-section (1) shall be final." ( 13. ) Section 3D deals with declaration of acquisition. Explanation.- For the purpose of this sub-section, "Legal practitioner" has the same meaning as in clause (i) of sub-section (1) of Section 2 of the advocates Act, 1961 (25 of 1961) " (3) Any order made by the competent authority under sub-section (1) shall be final." ( 13. ) Section 3D deals with declaration of acquisition. The said provision lays down that where no objection under sub-section (1) of Section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) the competent authority shall submit a report accordingly to the Central Government and on receipt of such report the Central Government shall declare by notification in the official gazette that the land should be acquired for the purpose mentioned in sub-section (1) of Section 3A and on the publication of the declaration under Sub-section (1) the land shall vest absolutely in the Central Government free from all encumbrances, Sub-section (3) of the said Section provides where in respect of any land, a notification has been published under Sub-section (1) of Section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of the notification, the said notification shall cease to have any effect. The proviso to said Section provides that in computing the said period of one year, the period during which any action or proceeding to be taken in pursuance of the notification issued under Sub-section (1) of Section 3A is stayed by an order of a court shall be excluded. Sub-section (4) of Section 3D lays down that a declaration made by the Central Government under Sub-section (1) shall not be called in question in any Court or by any other authority. Section 3E deals with the power to take possession. The aforesaid provision being relevant is reproduced below: "3E. Power to take possession. Sub-section (4) of Section 3D lays down that a declaration made by the Central Government under Sub-section (1) shall not be called in question in any Court or by any other authority. Section 3E deals with the power to take possession. The aforesaid provision being relevant is reproduced below: "3E. Power to take possession. - (1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under Section 3G with respect to such land has been deposited under sub-section (1) of Section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice. (2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply- (a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner or Police; (b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it." ( 14. ) Section 3F deals with the right to enter into the land where land has vested in the Central Government. Section 3G deals with the determination of amount payable as compensation. The said provision is as follows: "3G. Determination of amount payable as compensation. - (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent. Of the amount determined under sub-section (1), for that land. Of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of Section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (7) The competent authority or the arbitrator while detenrmining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration- (a) the market value of the land on the date of publication of the notification under Section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the serving of such land from other land; (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change." ( 15. ) Section 3H deals with the deposit of payment of amount. It reads as under "3H. Deposite and payment of amount. - (1) The amount determined under Section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land. It reads as under "3H. Deposite and payment of amount. - (1) The amount determined under Section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land. (2) As soon as may be after the amount has been deposited under Subsection (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto. (3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them. (4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer to the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. (5) Where the amount determined under Section 3G by the arbitrator is in excess of the amount determnined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under Section 3D till the date of the actual deposit thereof. (6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under Sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit." ( 16. ) On a perusal of the aforesaid provisions it is clear that if the amount determined by the competent authority is not acceptable to either of the parties the amount shall on an application by either of the parties be determined by the arbitrator to be appointed by the Central Government and the proceedings of the arbitration shall be governed by the Arbitration and Conciliation Act, 1996. Section 3G (7) deals with what factors the competent authority or the arbitrator shall take into consideration while determining the award. Section 3G (7) deals with what factors the competent authority or the arbitrator shall take into consideration while determining the award. ( 17. ) From the assertions made in the counter affidavit it is quite luminescent that the Central Government had published notification under Section 3A as per Annexure R-l on 23.3.2005. 3D notification was published on 25.8.2005 as per Annexure R-2 and 3G notification had been published on 21.11.2006 as per Annexure R-.! As is manifest the petitioners 1 and 2 are dissatisfied with the award passed. It is also worth noting that they have not challenged the notification on the ground of any procedure ultra vires. It is worth mentioning that Section 3 A empowers the Central Government to declare its intention to acquire such land by notification in the official gazette. As is patent from the documents, the said gazette notification under Section 3A had been issued as per Annexure R-1 in respect of certain villages and as per Annexure R-7 in respect of village Lolari. Sub-section (3) of Section 3A provides that the competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. There is no averments that the said provision has not been followed. On a scrutiny of Annexure R-9 it is clear that there had been publication of gazette notification in Dainik Bhaskar and Nayi Dunia. The particulars of the land have been given. Land owners have accepted the compensation after passing of the award. What has been urged is that before determining the compensation there was no proper notification. Annexure R-9 clearly state that there has been publication in, Daimk Jagaran. In any case that relates to determination of quantum. The purpose of Section 3G (3) and (4) is that the persons interested can state the nature of their respective interest in such land. Be it noted that Section 3H(4) postulates that if any dispute arises as to the aportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. Thus, there are two aspects: If there is any dispute with regard to the amount determined by the competent authority under Sub-section (1) or (2) of Section 3G the same shall be determined by the arbitrator appointed by the Central Government and second if there is any dispute as regards apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority is bound to refer the controversy/dispute to the civil court.. In any case the same is in the realm of individual entitlement and cannot assume the character of public interest litigation. ( 18. ) We would be failing in our duty if we do not take note of the submission made in the writ petition that there is rampant corruption and discrepancies. It has been averred that certain constructions had not been taken into consideration and certain constructions which are not there in existence have been taken note of. If the language of Section 3G (5) is properly understood it permits either of the parties to raise a dispute by filing an application before the arbitrator to be appointed by the Central Government. By either of the parties it is understood the land owner or the party whose the land has been acquired and compensation granted. The authority is also required to take care for its finances and liabilities. If any award is passed in respect of any construction which is not in existence, the said authority can raise a dispute. Thus, on mere bald allegations of this kind the notifications are not liable to be quashed. ( 19. ) Another aspect of which we cannot be oblivious needs to be stated. In the case at hand most of the beneficiaries have accepted the cheques. They have a right in law to approach the arbitrator If there is any grievance as regards entitlement, the competent authority has the statutory obligation to refer the matter to the principal civil Court in whose jurisdiction the land is situated. Thus, a complete mechanism is provided under the Act and there is no warrant for interference under Article 226 of the Constitution of India. ( 20. ) In view of the aforesaid premises, we do not perceive any merit in this public interest litigation and accordingly, it is dismissed. Thus, a complete mechanism is provided under the Act and there is no warrant for interference under Article 226 of the Constitution of India. ( 20. ) In view of the aforesaid premises, we do not perceive any merit in this public interest litigation and accordingly, it is dismissed. Regard being had to the totality of circumstances of the case there shall be no order as to costs. Petition dismissed.