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2017 DIGILAW 81 (JK)

Inhabitants of Villages Badwan-Wanpora and Mastan Khopri v. State of Jammu and Kashmir

2017-02-21

DHIRAJ SINGH THAKUR, RAMALINGAM SUDHAKAR

body2017
Judgment Ramalingam Sudhakar, J.—We have heard Mr. Altaf Mehraj, learned counsel appearing for the petitioners. 2. The issue raised in this writ petition relates to claims of residents of certain villages of District Bandipora who are affected by the establishment of Kishanganga Hydroelectric Power Project (330 MW) by the National Hydroelectric Power Corporation Limited for and on behalf of the State of Jammu and Kashmir. For the establishment of this Hydroelectric Power Project vast portion of land has been acquired and people living in and around that area were to be resettled and rehabilitated keeping in mind the best interest of the State to develop infrastructure for enhancing the power sector and at the same time provide appropriate resettlement to these displaced people and also to rehabilitate them. 3. In the year 2007, the Ministry of Rural Development Department of Land Resources in its resolution dated 31st October, 2007, formulated a National Rehabilitation and Resettlement Policy, 2007 inter alia providing various parameters that has to be considered while taking up the issue of rehabilitation and resettlement of displaced persons in relation to development of infrastructure by the State. Chapter-It contains the objectives of the policy which is as follows: “2. Objective of the National Rehabilitation and Resettlement Policy. 2.1 The objectives of the National Rehabilitation and Resettlement Policy are as follows:— (a) to minimize displacement and to promote, as far as possible, non-displacing or least-displacing alternatives; (b) to ensure adequate rehabilitation package and expeditious implementation of the rehabilitation process with the active participation of the affected families; (c) to ensure that special care is taken for protecting the rights of the weaker sections of society, especially members of the Scheduled Castes and Scheduled Tribes, and to create obligations on the State for their treatment with concern and sensitivity; (d) to provide a better standard of living, making concerted efforts for providing sustainable income to the affected families; (e) to integrate rehabilitation concerns into the development planning and implementation process; and (f) where displacement is on account of land acquisition, to facilitate harmonious relationship between the requiring body and affected families through mutual cooperation.” 4. In so far as the present case is concerned the startup for putting up the Kishanganga Hydroelectric Power Project started in the year 2007. In so far as the present case is concerned the startup for putting up the Kishanganga Hydroelectric Power Project started in the year 2007. Petitioners and few others numbering about 245 claim that they are displaced families, however, according to the 6th respondent, the project affected families are 185, which is not a matter in dispute at this point of time. 5. According to the learned counsel for the petitioners, the Government and the 6th respondent were called upon to approach the University of Kashmir to formulate resettlement and rehabilitation plan. It is a plea of the petitioner that in the year 2009, a plan was drawn but has not been given effect to. From document at page 94 in the letter of Deputy Commissioner, Bandipora, dated 21.10.2013 addressed to the Divisional Commissioner, Kashmir, we find that the resettlement and rehabilitation plan for Kishanganga Hydroelectric Power Project, Bandipora, prepared by the University of Kashmir on behalf of National Hydroelectric Power Project Limited and revised by District Administration in consultation with member of the Legislative Assembly, Gurez and Bandipora in the present of NHPC Ltd. Officers, certain amounts have been approved. This plan is annexure-C to the writ petition at page 96 called “Rehabilitation and Resettlement Plan for Kishanganga HEP (330MW) NHPC Ltd., Government of Jammu & Kashmir office of the Deputy Commissioner May, 2015”. It has four chapters and ten tables and two appendices and the figure of the affected village. For preparing this plan of May, 2015, it appears from the records produced by the 6th respondent that the Government by order dated 19.11.2015 formed a sub-committee of the Cabinet to examine the rehabilitation and resettlement plan for the project affected families in the 330 MW Kishan Ganga Hydro Electric Project in District Bandipora. The Government order dated 19.11.2015 reads as under:— “Government order No.1467-GAD of 2015 Dated: 19.11.2015 Sanction is hereby accorded to the constitution of a Sub-Committee of the Cabinet, comprising the following, to examine the Rehabilitation and Re-settlement plan for the Project Affected Families (PAFs) of the 330 MW Kishan Ganga Hydro Electric Project in District Bandipora:— 1. Deputy Chief Minister : Convenor 2. Minister for Revenue : Member 3. Minister for Forest and Social Welfare : Member 4. Minister for Relief and Rehabilitation : Member 5. Deputy Chief Minister : Convenor 2. Minister for Revenue : Member 3. Minister for Forest and Social Welfare : Member 4. Minister for Relief and Rehabilitation : Member 5. Minister for Finance Labour & Employment and Culture : Member The Cabinet Sub-Committee, which shall be serviced by the Power Development Department, shall and submit its recommendations by the 25th of November, 2015. By order of the Government of Jammu and Kashmir.” 6. The Sub-Committee’s report was approved by the Cabinet and sanction was accorded by the Government of Jammu and Kashmir, Power Development Department on 09.12.2015. The Government of Jammu & Kashmir, Relief and Rehabilitation Department, Civil Secretariat, Jammu, through its Principal Secretary to Government, by Government order No.10-R&R of 2016 dated 27.01.2016, annexure-RS, page 25, appointed Deputy Commissioner, Bandipora, as Commissioner, Rehabilitation and Resettlement, Kishanganga Hydro Electric Project (HEP) for the Rehabilitation and Resettlement of Project Affected Families. His role has been defined in the said order and it reads as under: “Government order No: 10-R&R of 2016 Dated: 27/01/2016 Sanction is hereby accorded to the appointment of Deputy Commissioner, Bandipora as Commissioner, Rehabilitation and Resettlement, Kishanganga Hydro Electric Project (HEP) for the Rehabilitation and Resettlement of Project Affected Families (PAFs) of Kishanganga Hydro Electric Project with the following role and responsibilities:— i. To take all necessary measures, for implementation of the R&R Plan of Kishanganga HEP as approved by the Cabinet in true letter and spirit, in a time bound manner, keeping in view the commissioning of the HEP. ii. To adhere to the recommendations of the Sub Committee of the Cabinet constituted to examine the R&R Plan for the Project Affected Families (PAFs) of the 330 MW Kishanganga HEP in District Bandipora keeping in view the recommendations dated 30 October 2015 of the Committee, headed by the Chief Secretary (copy of recommendations of Chief Secretary Committee at Annex-X), to examine R&R Plans of HEPs. The gist of recommendations of the Cabinet Sub Committee as approved by the Cabinet are:— a. The provision for TEN Marias plot for house site was recommended to be enhanced from Rs. 4.5 lakh to Rs. The gist of recommendations of the Cabinet Sub Committee as approved by the Cabinet are:— a. The provision for TEN Marias plot for house site was recommended to be enhanced from Rs. 4.5 lakh to Rs. 5.0 lakh (Five lakh only); b. The provision for construction of house was recommended to be enhanced from Rs 5.0 lakh to Rs 7.0 lakh (Seven lakh only); and, c. Additional 50% (fifty percent) amount to be paid to those who opt for cash in lieu of the plot and house shall be recalculated accordingly.” By order of the Government of Jammu and Kashmir.” 7. Consequent to that, the project is moving forward. The learned counsel for the petitioners states that the displaced persons grievance is that their right to just compensation is affected by the Government not strictly adhering to the National Rehabilitation and Resettlement Policy, 2007, Annexure-D, page 125, in letter and spirit. 8. When a query was raised by the court as to whether the families have received any compensation and whether they have been rehabilitated and resettled, the counsel stated that he has no instructions at this point of time on that issue. According to 6th respondent who is appearing through counsel, Mr. Irshad Ahmad, stated that many of the families have received the compensation and they have been rehabilitated and resettled. This is an issue which is controverted on fact by the counsel for the petitioners. Be that as it may. Main grievance of the petitioners/ villagers who have been displaced appears to be that if May 2015 policy was drafted and approved keeping in mind the National Rehabilitation and Resettlement Policy, 2007, then they would have been entitled to higher compensation. Further it is their grievance that the Government of Jammu and Kashmir did not formulate a policy for the State in light of the National Rehabilitation and Resettlement Policy, 2007, thus has caused great prejudice. Though there is no specific law to state so, the counsel pleaded that it is the duty of the State to ensure that there is policy, which can be applied without any discrimination to displaced people. 9. The learned counsel for the petitioners to emphasize this plea relies upon the project, namely, Rehabilitation and Resettlement Plan for RATLE Hydroelectric Power Project, page 168. 9. The learned counsel for the petitioners to emphasize this plea relies upon the project, namely, Rehabilitation and Resettlement Plan for RATLE Hydroelectric Power Project, page 168. He refers to following portion of the said plan at page 170 to point out that the National Policy, 2007 has been followed:— “The Resettlement and Rehabilitation Plan has been prepared to comprehensively address the issue arising out of land acquisition and identification of Project Affected Families (PAFs), assessment of land/ house/ asset coming under acquisition estimation of extent of loss and compensation to be offered in line with the Nations Rehabilitation and Resettlement Policy (NRRP), 2007 and keeping in view the following objectives” 10. In the present case the 2007 National Policy has been ignored and hence discrimination is writ large. 11. It is also the plea of the petitioner that the displaced families are tribal people. There should be a special tribal plan or package which is absent in the instant case. It is his further grievance that a notification specifying the area that will be affected by the project has not been issued. Therefore people of that area are not aware as to the extent of land to be acquired and consequently who all will be displaced. There is no provision for participation by displaced person while formulating the displacement and rehabilitation policy. A proper survey has not been made as indicated in the National Policy of 2007. In effect he pleaded that May 2015 Policy does not addressed the basic objective of the National Policy of 2007. 12. Per contra, we have heard Mr. M.A. Rathore, AAG, appearing for the State who pleaded that rehabilitation and resettlement plan has been framed taking into consideration inputs given by the stake holders and with the help of the University of Kashmir. Further on the basis of material considered by the Cabinet Sub Committee and placed before the Cabinet Committee the policy was implemented by the Government. Though there is no specific reference to the National Policy of 2007, broadly it has been incorporated in the May 2015 policy. Sufficient safeguards have been taken. Substantial amount has been released and compensation has been paid to the families displaced. Rehabilitation and resettlement also has happened. Though there is no specific reference to the National Policy of 2007, broadly it has been incorporated in the May 2015 policy. Sufficient safeguards have been taken. Substantial amount has been released and compensation has been paid to the families displaced. Rehabilitation and resettlement also has happened. However, this is a fact in dispute, we are not inclined to go into this aspect of the matter as we propose to address the petitioners’ grievance in an appropriate manner. 13. Counsel for the 6th respondent while referring to objections pleads that project has already started and in terms of May 2015 policy, steps have been taken to rehabilitate and resettle the people after giving them just compensation. 14. On these pleas made by the petitioners’ counsel and respondents and on the basis of available material placed in support of the writ petition, we are of the view that the factual aspect of the grievance should be at the first instance addressed by the respondents. If the grievance of displaced families is justified then the appropriate authority to accord consideration in the first instance would be the Sub Committee of the Cabinet which has been delegated the power to examin the rehabilitation and resettlement plan for )tie project affected families (PAF) consequent to Kishanganga Hydroelectric Power Project in District Bandipora. 15. We find that the learned counsel for the petitioners has made an exhaustive study as to the petitioners’ grievance. The learned counsel highlighted the difficulties that the displaced families are. facing due to non-consideration of the National Rehabilitation and Resettlement Policy, 2007 in contradiction to May 2015 policy in so far as the present project is concerned. 16. The learned counsel while broadly stating the grievance stated that the individual families are suffering, specific details as to how the issue on which they are prejudiced will be identified by him so as to enable the Cabinet Sub Committee to accord consideration to the same. The Welfare State is bound to accord consideration to the grievance of the people whether it be individual specific or in larger public interest. If the petitioners are found to be residents of the location which has been acquired and they are project affected families and are to be rehabilitated and resettled, then necessarily their grievance has to be redressed by the appropriate authority. 17. If the petitioners are found to be residents of the location which has been acquired and they are project affected families and are to be rehabilitated and resettled, then necessarily their grievance has to be redressed by the appropriate authority. 17. From the statement made and the record produced by 6th respondent, it appears that the Cabinet Sub Committee is competent enough to consider the issue and redress the grievance of the petitioners. The Hon’ble Supreme Court has in unequivocal terms stated that courts should not embark on an issue as to whether a particular policy is correct or not. It is left to the discretion of the lawmakers and the administrators to form policies to serve public interest at large or as in this case a group of displaced people. 18. In this view of the matter, while declining to grant relief of certiorari, we are inclined to issue a writ of mandamus directing respondent no.1 to afford the writ petitioners a hearing enabling them to place their grievance by a proper representation. As stated by the petitioners’ counsel a detailed chart as to how the implementation of May 2015 policy is not in accordance with the National Rehabilitation and Resettlement Policy of 2007 and as to how the individuals are prejudiced both in terms of resettlement and rehabilitation can be explained. It may also include a plea for a justice compensation if the petitioners are aggrieved. The Cabinet Sub Committee or the delegated authority may hear the grievance of displaced families. The Commissioner Secretary for Relief and Rehabilitation is also to take part in the deliberations. 19. A decision on the issue shall be taken and duly communicated to the petitioners. The consideration to be accorded expeditiously preferably within a period of three months from date of receipt of this order subject to petitioners or their counsel submitting the representation as specified above. 20. This writ petition is disposed of as above.