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Madhya Pradesh High Court · body

2014 DIGILAW 1283 (MP)

Jeevanlal Mishra v. State of M. P.

2014-10-08

A.M.KHANWILKAR, ALOK ARADHE

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ORDER : 1. In this writ petition, filed pro bono publico, the petitioners, inter alia, have assailed the validity of the action of respondents in construction of the reservoir dam, namely, Pagra Dam in District Sagar. The petitioners have also prayed for a direction to the respondents to construct the dam at village Pancham Nagar and not to shift the same to village Pagra i.e. at a distance of 13 Kms. from Pancham Nagar. The petitioners also seek quashment of notifications issued under sections 4 and 6 as well as notice issued under section 9 dated 6-9-2013, 4-12-2013 and 20-1-2014, respectively, under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as the ‘1894 Act’). 2. Facts leading to filing of the writ petition, briefly stated, are that on the basis of survey which was conducted and approved by the State Government, an administrative sanction for the first phase of project for construction of the dam at village Pagra was granted by the State Government on 31-10-2010. Under the aforesaid medium project, as per administrative approval dated 31-1-2012, big reservoir at village Pagra, pick-up dam at village Pancham Nagar and the left bank main canal are proposed to be constructed which emanates from village Pancham Nagar for irrigation of 9,900 hectares of cultivable command area. 3. On an objection being raised by the public in general against construction of dam at village Pagra, the Water Resources Department constituted a committee comprising two Chief Engineers. The Committee inspected the spot in the presence of Collector and the Chief Engineer, Water Resources Department, Sagar and explored the possibility whether the dam can be constructed at any other place. However, the Committee in its report dated 15-5-2013 after consideration of objection of the villagers, found that the proposed site for construction of the dam is suitable in all respects. Thereafter, the process of acquisition of land was set in motion by issuance of the notification under section 4 of the Act, 1894 on 6-9-2013 and an enquiry under section 5-A of the Act was held. The objections preferred by the villagers were rejected by the Commissioner after due consideration vide order dated 30-11-2013. 4. Thereafter, the process of acquisition of land was set in motion by issuance of the notification under section 4 of the Act, 1894 on 6-9-2013 and an enquiry under section 5-A of the Act was held. The objections preferred by the villagers were rejected by the Commissioner after due consideration vide order dated 30-11-2013. 4. Thereafter, declaration under section 6 of the Act was issued on 4-12-2013 and notices under section 9 of the Act were issued to the land owners on 20-1-2014 and ultimately, an Award was passed on 22-4-2014 in which it was provided that the amount of compensation shall be determined as per the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the 2013 Act’). In the aforesaid factual background, the petitioners have approached this Court. 5. Learned senior counsel for the petitioners while inviting our attention to section 24(1)(a) of the 2013 Act has submitted that the proceeding for acquisition of the land in question on enforcement of the 2013 Act stood lapsed. It was further pointed out that no personal notices were served on the villagers in respect of an enquiry under section 5-A of the 1894 Act, which is mandatory in nature. It is also submitted that notification under section 4 of the 1894 Act is not saved by section 114 of the 2013 Act read with section 6 of the General Clauses Act, 1897. In support of the aforesaid submissions, learned senior counsel for the petitioners has referred to the decisions of the Supreme Court in Radhyshyam (dead) through LRs. and Others vs. State of U.P. and Others, (2011) 5 SCC 553 and Pune Municipal Corporation and Another vs. Harakchand Misirilal Solanki and Others, (2014) 3 SCC 183 . 6. On the other hand, learned Government Advocate has submitted that pursuant to the public notice dated 11-10-2013, all the villagers had submitted the joint objections which were dealt with by the Land Acquisition Officer and were forwarded for consideration to the competent authority namely the Commissioner, Sagar Division, Sagar. In this connection, our attention has been invited to Annexure R/6 to R/8. It is also submitted that an Award has been passed on 22-4-2014 in which a provision has been made that compensation to the affected persons shall be paid in accordance with the provisions of 2013 Act. In this connection, our attention has been invited to Annexure R/6 to R/8. It is also submitted that an Award has been passed on 22-4-2014 in which a provision has been made that compensation to the affected persons shall be paid in accordance with the provisions of 2013 Act. It is stated that most of the villagers after receipt of the compensation, have handed over the possession of the land. In support of the aforesaid submission, our attention has been invited to document Annexure R/6. Lastly, it is urged that the construction of the dam is in public interest and would be beneficial to the farmers of the Sagar District. 7. We have considered the respective submissions made by learned counsel for the parties. The relevant extract of section 24 of the 2013 Act reads as under:- “24(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1) of 1894): (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply. (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.” Thus, it is evident that the proceeding initiated under the 1894 Act on commencement of 2013 Act, would lapse if the award has been made five years or more prior to commencement of the 2013 Act and the physical possession of the land has not been taken. In the instant case, the award has been passed on 22-4-2014 i.e. after the commencement of 2013 Act and, therefore, sub-section (2) does not apply. In the instant case, the award has been passed on 22-4-2014 i.e. after the commencement of 2013 Act and, therefore, sub-section (2) does not apply. In other words, the land acquisition proceeding in question has not lapsed and, in fact, could be continued further in terms of express provision in section 24(1)(a), having been saved subject to determination of compensation as per the Act of 2013. 8. So far as the contention raised on behalf of the petitioners that provisions of section 5-A of 1894 Act have been violated in as much as, no personal notices were served on the land holders in respect of an enquiry under section 5-A of the Act is concerned, the same needs to be stated to be rejected, in as much as, the petitioners in the writ petition have failed to disclose the name of the land owners on whom the personal notices under section 5-A of 1894 Act were not served. On the other hand, from perusal of the material available on record, it is evident that pursuant to the notice dated 11-10-2013, all the land owners submitted a joint objection. In the absence of any specific pleading with regard to the contention raised by learned senior counsel for the petitioners, we are not inclined to deal further with the aforesaid issue. 9. Section 114(2) of the 2013 Act provides that save as otherwise provided in this Act, the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals. Thus, section 6 of General Clauses Act, 1897 has been incorporated in section 114 of 2013 Act. Therefore, under section 114 of 2013 Act, the proceeding which was initiated under the 1894 Act is saved. The ratio laid down in Pune Municipal Corporation supra, has no application to the facts of the case, as in that case, the award was passed five years before the commencement of the 2013 Act, which is not the case here. Besides that, the construction of Dam is in public interest as on completion of the Dam water can be supplied for irrigation to 9,900 hectares of land in Sagar District. For this reason also, no interference is called for in exercise of extraordinary discretionary jurisdiction under Article 226 of the Constitution of India. 10. Besides that, the construction of Dam is in public interest as on completion of the Dam water can be supplied for irrigation to 9,900 hectares of land in Sagar District. For this reason also, no interference is called for in exercise of extraordinary discretionary jurisdiction under Article 226 of the Constitution of India. 10. However, in accordance with the provisions of section 24(1)(a) of the 2013 Act, would apply in relation to determination of the compensation. It has also been stated by learned Government Advocate that the compensation of the land owners is being made in accordance with the provisions of 2013 Act and this fact has already been stated in the award dated 22-4-2014. 11. Accordingly, the Land Acquisition Officer will have to ensure that the compensation be madeover to the land owners affected by the project in question is in accordance with the provisions of 2013 Act. Interim order stands vacated. Accordingly, the writ petition is disposed of.