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2018 DIGILAW 1492 (JHR)

Syed Mohammad Qaisar Hassan v. State of Jharkhand through its Chief Secretary

2018-07-10

RAJESH SHANKAR

body2018
ORDER : The present writ petition has been filed for quashing the preliminary notification dated 14.10.2017 issued under section 11(1) of the Right to Fair Compensation & Transparency in Land Acquisition Rehabilitation and Re-settlement Act, 2013 (in short “the Act, 2013”) whereby the respondent no. 3 has proposed acquisition of land for construction of flyover at Kantatoli, Ranchi. 2. The factual background of the case as stated in the writ petition is that the respondent no. 2 vide resolution no. 4009 dated 22.07.2016 granted administrative sanction for acquisition of land for the purpose of construction of flyover at Kantatoli Chowk, Ranchi. The respondent no. 3 issued preliminary notification under section 11(1) of the Act, 2013 individually to different land owners/holders including the petitioners proposing acquisition of land for construction of flyover at Kantatoli Chowk. Subsequently, on 18.10.2017, the Department of Revenue and Land Reforms, Government of Jharkhand published preliminary notification in local newspapers under section 11(1) of the Act, 2013. The petitioners along with others made detailed representation before the Chief Minister, Jharkhand raising objection against the preliminary notification which was received on 24.08.2017 by the Chief Minister Secretariat. The information was provided to the petitioner no. 1 under Right to Information Act, 2005 that the work relating to flyover has been entrusted to the respondent no. 5 and subsequently the work has been allotted to the respondent no. 6. 3. The learned counsel for the petitioners submits that the National Highways Authority of India has been authorised to develop, maintain and manage the entire stretch of 333.5 km. of the NH-33. Unless and until the same is handed over to the Road Construction Department, Government of Jharkhand, no work of construction is permissible over it. It is further submitted that though vide notification dated 22.07.2016, the Government of Jharkhand allocated the work of construction of flyover measuring 900 meters, the MECON Ltd. prepared the DPR stretching its length to 1250 meters without any cogent reason. It is also submitted that some of the land proposed to be acquired is held by the members of Schedule Tribe and thus the respondent authorities have violated the provisions of the Chotanagpur Tenancy Act. The impugned notification reflects that the land are raiyati/agricultural but in fact the same are being used for commercial purposes. It is wrong to say that the land of the petitioner no. The impugned notification reflects that the land are raiyati/agricultural but in fact the same are being used for commercial purposes. It is wrong to say that the land of the petitioner no. 1 has not been sought to be acquired, rather his land has also been included therein. The concerned raiyats including the petitioner no. 1 jointly raised objection under section 15 of the Act, 2013 before the Collector, Ranchi through the District Land Acquisition Officer, Ranchi on 16.12.2017, however the same has not been disposed of before taking any further action in this regard. It is further submitted that before issuance of the impugned notification under section 11(1), pre-requisites as contemplated in the Act, 2013 has not been followed. As per section 3 (c)(iii) of the Act, 2013, the members of Schedule Tribes and other traditional forest dwellers who have lost any of their forest rights recognized under the Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, should not be disturbed in the garb of such acquisition. The houses and shops of the petitioner no. 2 and other similarly situated persons have however been arbitrarily demolished on 04.06.2018. 4. The learned counsel for the petitioners while putting reliance to the judgment of the Hon’ble Supreme Court rendered in the case of Shiv Singh & Ors. Vs. State of Himachal Pradesh & Ors. reported in 2018 (2) JBCJ 495 (SC), submits that once the objection is filed by the affected landowners, the same is required to be decided by the Collector under section 15(2) of the Act, 2013 after affording opportunity of hearing to them. 5. Per contra, the learned counsel for the respondent-State submits that the land of the petitioner no. 1 has not been acquired by the respondent-State of Jharkhand, thus he has no any locus standi to file the present writ petition. So far as the claim of the petitioner no. 2 is concerned, he did not file any objection under Section 15 of the Act, 2013, thus there was no question of consideration of his grievance. It is further submitted that the land notified in pursuance of the notification under Section 11 (1) of the Act for construction of Kantatoli flyover is for the public purpose within the meaning of section 3(za) of the Act, 2013. It is further submitted that the land notified in pursuance of the notification under Section 11 (1) of the Act for construction of Kantatoli flyover is for the public purpose within the meaning of section 3(za) of the Act, 2013. The representation dated 24.08.2017 was not in terms of the Act, 2013, rather the objection was against the area and suitability of land proposed to be acquired, justification offered for public purpose and the finding of the social impact assessment report. It is also submitted that when the notification dated 22.07.2016 was initially issued, the construction work of the flyover was for 900 meters in length and the ramp after Kantatoli Chowk was falling just besides and adjacent to the cemetery towards Siram Toli Chowk and since it would have caused inconvenience to the cemetery, the construction area was subsequently revised and as per the approved revised plan, the last part of the flyover passing through the Kantatoli Chowk will be at some distance ahead of the said cemetery. The social impact assessment report was duly prepared in this regard and the administrative sanction of the revised 1250 meters length of Kantatoli Flyover has duly been accorded by the executing department i.e. the Urban Development Department, Government of Jharkhand. The rate being offered for the land under acquisition is “upper commercial” which is the highest rate of the Government for the said land. It is further submitted that the Land Acquisition Officer, Ranchi had invited preliminary objection within 60 days of the publication of the notification i.e. 14.10.2017, however the petitioners rushed to this Court without availing alternative/statutory remedy of preferring objection and on determination of objection, the appeal (if so required). The Act, 2013 is a complete code in itself which provides for the procedure for acquisition and the manner of filing objection and the petitioners are also bound to follow the same. The construction of Kantatoli Flyover has been felt to be ardent requirement of the city dwellers for smooth traffic operation and the same has been conceived after detailed preliminary exercise including research/due deliberation regarding excessive traffic load of the said place. it is further submitted that the National Highway Authority of India vide letter no. 8174 dated 16.04.2015 has given NOC for the construction of the said flyover. 6. it is further submitted that the National Highway Authority of India vide letter no. 8174 dated 16.04.2015 has given NOC for the construction of the said flyover. 6. The learned counsel for the respondent-State of Jharkhand puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Special Director and another Vs. Mohd. Ghulam Ghous & another reported in (2004) 3 SCC 440 [: 2004(2) JLJR (SC) 213] and submits that a notice issued in this regard cannot be challenged unless the same is shown to be in violation of statutory law, being without jurisdiction or in malafide exercise of power, which is not the case of the petitioners. 7. Heard the learned counsel for the parties and perused the materials available on record. Challenge herein is to the notification issued under section 11 (1) of the Act, 2013 with respect to the acquisition of land for the proposed Kantatoli Flyover, Ranchi contending that the respondents have not followed the due process of law while proceeding with the acquisition. 8. The learned counsel for the respondent-State has raised preliminary objection as to the locus standi of the petitioners especially of petitioner no. 1 whose land does not fall under acquisition. It has however been contended on behalf of the petitioners that the affected persons of Kantatoli Flyover have formed an association namely ‘Kantatoli Raiyat Ewam Vyabsayi Ekta Sangharsh Samiti’ and the petitioner no. 1 is the president of the said association and he is espousing the grievance of all the affected persons. However on perusal of the cause title of the writ petition, it appears that the present writ petition has been filed by the petitioners in individual capacity and thus the argument of the learned counsel for the petitioners that the petitioner no. 1 is espousing the grievance on behalf of all the affected persons has no leg to stand. 9. The thrust of the argument of the learned counsel for the petitioners is that the objection under Section 15 of the Act, 2013 filed by the petitioner no. 2 and other affected persons before the Collector through the District Land Acquisition Officer, Ranchi had not been decided before demolishing the structure of the petitioners. 9. The thrust of the argument of the learned counsel for the petitioners is that the objection under Section 15 of the Act, 2013 filed by the petitioner no. 2 and other affected persons before the Collector through the District Land Acquisition Officer, Ranchi had not been decided before demolishing the structure of the petitioners. On perusal of the record, it appears that the impugned notification under Section 11(1) of the Act, 2013 was published on 14.10.2017 intimating the concerned persons that their land will be acquired for construction of Kantatoli Flyover and the objections were invited from them to be filed within 60 days from the date of issuance of the impugned notification. Immediately thereafter, the petitioners rushed to this Court challenging the said notification. During the pendency of this writ petition, the petitioners and other persons filed joint objection on 16.12.2017 against the acquisition purported to be under section 15 of the Act, 2013. 10. In the case of Shiv Singh (Supra.), the Hon’ble Supreme Court has held as under: “7. Under the scheme of the Act, once the objections are filed by the affected landowners, the same are required to be decided by the Collector under Section 15(2) of the Act after affording an opportunity of being heard to the landowners, who submitted their objections and after making further inquiry, as the Collector may think necessary, he is required to submit his report to the appropriate Government for appropriate action in the acquisition in question.” 11. In the aforesaid case, it has been held by the Hon’ble Supreme Court that once an objection is filed, the Collector is under an obligation to decide the same under section 15(2) of the Act, 2013 after providing an opportunity of hearing to the objector and then only to proceed further. 12. However in the present matter, it is not the case of the petitioners that the objection under section 15 of the Act, 2013 was filed within 60 days of issuance of notification under Section 11 (1) of the Act, 2013. It appears that the objection under Section 15 of the Act, 2013 was filed after 60 days as has been mandated in the Act, 2013 as well as mentioned in the notification. Thus, the judgment cited by the learned counsel for the petitioners will not be applicable in the facts and circumstances of the present case. 13. It appears that the objection under Section 15 of the Act, 2013 was filed after 60 days as has been mandated in the Act, 2013 as well as mentioned in the notification. Thus, the judgment cited by the learned counsel for the petitioners will not be applicable in the facts and circumstances of the present case. 13. The other limb of the argument of the learned counsel for the petitioners is that the stretch of the flyover has been extended without any administrative sanction as well as since the proposed site has presently been entrusted to the NHAI, unless the same is handed over to the State of Jharkhand, no work can be done. The learned counsel for the respondent-State of Jharkhand and the respondent no. 5 have vehemently denied the said contention and have submitted that “no objection” to the proposed work has already been given by the NHAI. Moreover, since the earlier stretch was falling near the cemetery, it was decided to extend the same ahead of the cemetery and the earlier stretch of flyover was accordingly revised which also got the administrative sanction. 14. The respondents have produced before this Court the Social Impact Assessment (SIA) Report as well as the supplementary report prepared by the SIA Team of Central University of Jharkhand, Ranchi both for the earlier stretch of 900 meters and for the revised stretch of 1250 meters. The same are taken on record. In the said reports, the certificates have been given by the team of CUJ, Ranchi to the effect that the same have been prepared on the basis of sample survey, group discussion and data collection from the stake holders. Thus, it appears that the respondents have done elaborate exercise before implementing the project which is for the benefit of the public at large. 15. The argument of the learned counsel for the petitioners that the case of the petitioner no. 2 is covered by the provision of section 3 (c)(iii) of the Act, 2013 cannot be accepted in view of the fact that under the said provision, the rights of only those scheduled tribes and other traditional forest dwellers, who come under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, have been protected. 2 is covered by the provision of section 3 (c)(iii) of the Act, 2013 cannot be accepted in view of the fact that under the said provision, the rights of only those scheduled tribes and other traditional forest dwellers, who come under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, have been protected. The petitioners have not been able to substantiate as to in what manner the acquisition has affected the right of the tribal inhabitants of the area in question under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or the same is in violation of the Chotanagpur Tenancy Act, 1908. 16. It further appears from the record that the award has already been prepared in favour of the affected persons. Section 64 of the Act, 2013 provides that if any person has objection to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested, he may make his application requesting the Collector to make reference of the same to the “Authority” established under the Act, 2013 for determining the same. 17. Under the aforesaid circumstance, I see no reason to interfere with the impugned notification dated 14.10.2017. However, the petitioners are at liberty to prefer application under Section 64 of the Act, 2013 before the Collector for referring the matter to the “Authority” established under Section 51 of the Act, 2013. 18. The writ petition is accordingly disposed of. 19. I.A. No. 4736 of 2018 also stands disposed of.