Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 1650 (RAJ)

Meera Kumari And Ors v. State of Rajasthan

2019-05-24

DINESH MEHTA, S. RAVINDRA BHAT

body2019
JUDGMENT S Ravindra Bhat, C.J. - These two petitions under Article 226 of the Constitution of India involve decision on common acquisition proceedings whereby the land comprising the village of Kyari are proposed to be acquired for the public purpose of a micro irrigation project. 2. The first petition is on behalf of the village (hereafter the "Kyari petition" and the petitioners in which are called "the Kyari petitioners"). It is highlighted in this petition, that the acquisition proceedings were rushed through without adequate protection and without following the mandatory procedures prescribed under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("the Land Acquisition Act" hereafter). In this regard, it is submitted by the counsel that the Social Impact Assessment Report submitted to the Government was not published and did not have the consent of the residents of the village, which vitiates the entire acquisition process. 3. The Kyari petitioners also argue that the alternative land proposed to be allotted is of little value, because it cannot be used by them, once they are given it. The next argument, made on behalf of the petitioners is that sufficient grazing lands have not been earmarked in the village where the displaced families would be rehabilitated, i.e. in the Bhimana village. 4. Most importantly, the Kyari villagers argue that they are sited in a region which is earmarked as Tribal Sub Plan (TSP) and all of them, as tribals, are entitled to reservation benefits which they currently enjoy. It is submitted that since declaration of TSP entails inclusion of the area, i.e. the village in the Fifth schedule (to the Constitution of India), their displacement would mean that neither they nor any of their family members would be entitled to reservation benefits for the purpose of public employment, admission to educational institution and other similar benefits. 5. The second petitioner is Ms.Meera Kumari; she is the Sarpanch of village Bhimana. This village is the one into which the displaced inhabitants of Kyari are proposed to be rehabilitated. The main grievance of this petitioner is that the lands that the Kyari villagers would be allotted are currently used by the Bhimana villagers for grazing purposes; this would result in diminution of available resources, particularly grazing land. This village is the one into which the displaced inhabitants of Kyari are proposed to be rehabilitated. The main grievance of this petitioner is that the lands that the Kyari villagers would be allotted are currently used by the Bhimana villagers for grazing purposes; this would result in diminution of available resources, particularly grazing land. It is submitted that the last cattle census showed that there were 2505 heads of cattle in this village, for which under Rule 6 of the Rajasthan Tenancy (Government) Rules, 1955 (hereafter "Tenancy Rules") the standard indicated is 0.5 acre per head of cattle. If this were to be considered, the available land would be vastly reduced, to the detriment of the residents of village Bhimana. 6. Mr.Punia, learned Senior Counsel appearing on behalf of the petitioners in the Meera Kumari petition, additionally argued that only 550.08 bighas of land are available for cattle, in village Bhimana, which is highly inadequate. It was also argued that the improper nature of the survey or inspection is clear from the fact that Khasra No.144 is a hilly terrain and furthermore, no wide publication was given for seeking objections from the villagers (Bhimana), as a result of which the Gram Sabha resolved on 15.11.2017 that Khasra No.144, reserved for pasture was inadequate and that the authorities should reserve this land for the purpose. The resolution also declined the no objection to the allotment of the land to the villagers of Kyari. It is argued moreover that non application of mind of the State is clear from the fact that there exists sufficient land which is accessible, in village Kivarli (to the tune of 474 bigha 2 biswa); or village Ore (to the tune of 322.01 biswa) or village Kui (250.11 biswa) or alternatively in Sangna (364.05 bigha). It is submitted that all these are contiguous to the areas occupied by villagers and moreover are all within the TSP areas. 7. The learned Additional Advocate General, Ms. Rekha Borana, urged that both the petitions are bereft of merit. She pointed out that the reply of the State of Rajasthan clearly mentioned that there was complete consultation by the authorities with the Kyari villagers and that after the Social Impact Assessment report was shared with them, and their objections considered, the final report was made. Rekha Borana, urged that both the petitions are bereft of merit. She pointed out that the reply of the State of Rajasthan clearly mentioned that there was complete consultation by the authorities with the Kyari villagers and that after the Social Impact Assessment report was shared with them, and their objections considered, the final report was made. She highlighted that the prescribed mandatory procedures were followed and that the award went into great lengths in determining compensation as well as rehabilitation measures. 8. It was also argued on behalf of the state that the villagers of Kyari cannot have objection since they waited to receive compensation amounts to the tune of 90% - which were credited to their accounts, after which they chose to approach this Court. The counsel highlighted that the acquisition was aimed at providing irrigation and drinking water to nine villages and expected to transform the local rural economy. She also submitted that the rehabilitation measures proposed included residential plots to each displaced family, capital to build a dwelling unit and developed areas, which had roads, besides amenities in the Bhimana Village such as community centres, schools, etc. 9. Learned counsel submitted that there was no cause for apprehension on the part of the Kyari villagers with respect to their reservation benefits. In this regard, she relied on Section 42 of the Land Acquisition Act, to say that whatever benefits were hitherto enjoyed by the villagers would continue to be enjoyed by them, regardless of their residence- either within or beyond the scheduled or TSP areas. 10. As far as the second petition was concerned, learned counsel for the state pointed out that the litigation was motivated, because the petitioner as sarpanch was privy to the rehabilitation plan under which the displaced villagers of Kyari were to be rehabilitated in village Bhimana. It was submitted that so far as the question of suitability of land to displaced persons is concerned, the petitioner had no locus to make a grievance, because neither was her land or any property the subject of acquisition. It was submitted, furthermore, that the objection as to diminution of grazing lands was inconsequential, because Rule 6, relied upon by the petitioner's counsel cannot be treated as mandatory. Analysis & Findings 11. It was submitted, furthermore, that the objection as to diminution of grazing lands was inconsequential, because Rule 6, relied upon by the petitioner's counsel cannot be treated as mandatory. Analysis & Findings 11. The grievance of the Kyari villagers is that they were kept in the dark and that their Gram Panchayat was not aware about the acquisition proceeding and the rehabilitation plan. In support of this submission, it is stated that social impact assessment is conducted by the Committee comprising entirely of officials such as Assistant Engineer, Executive Engineer etc. of the Water Resources Department and Administrator, Resettlement and Rehabilitation-cum-Sub Divisional Officer, Mount Abu. This assessment proposed resettlement of 291 displaced families in Bhimala, Udwadia and Bhiyada of Tehsil Pindwara. The proposal was submitted by the Social Impact Assessment Committee before the State i.e. Divisional Commissioner, who approved it on 05.07.2017. It was subsequently transmitted to the Executive Engineer. 12. The counsel highlighted that upon learning about this development, the villagers sought shifting of the resettlement area in the nearby TSP area of village Deldar Kinwarlay, Kui, Sagna as they could continue to get TSP area benefits. It was urged that Bhimana was not in the TSP area, for which Kyari villagers relied upon Rajasthan Gazette notification dated 19.05.2018. It was submitted that the re-settlement and rehabilitation plan was fatal as it deprived them of the existing reservation benefits. The Kyari villagers also note that the Gram Panchayat of Bhimana took serious exception and recorded objections to the proposal as the report and the plan would have adversely impacted their existing facilities. 13. The Kyari village petitioners mainly are aggrieved by the consequences of shifting of their Panchayat to village Bhimana in Tehsil Pindwara, which is a non-TSP area. They highlight that Kyari inhabitants are basically tribals and they would be completely denied the benefits available to them as such since they are notified in the TSP area for purposes of job and other reservation benefits under the Constitution of India. 14. The material relied upon by the State in the form of documents produced along-with its counter affidavit shows that the land which is a subject matter of these two petitions was acquired to construct a dam for a Micro Irrigation Project on the Batisa Nala, which is presently in the TSP area. 14. The material relied upon by the State in the form of documents produced along-with its counter affidavit shows that the land which is a subject matter of these two petitions was acquired to construct a dam for a Micro Irrigation Project on the Batisa Nala, which is presently in the TSP area. The village of Kyari would fall under the complete sub-merged areas and villages Nichla Garh, Deldar and Jaydara would fall in the semi sub-merged areas; 291 families belonging to ST categories would be displaced. The State relies upon the Social Impact Assessment Committee Report, which it submits, was prepared after wide and extensive consultations from those likely to be adversely affect and a complete survey on all aspects. It is submitted that this Social Impact Assessment Committee Report was forwarded to the Divisional Commissioner and approved by him on 05.07.2017. That report was directed to be advertised in the concerned District Collector's office as well as in the Sub Divisional Office and the lands in question. The State therefore contends that there was absolute transparency in the process of consultation and preparation of the Social Impact Assessment Report. 15. It is stated that the documents annexed alongwith the affidavit and the averments in the counter affidavit also disclosed that the submerged area would affect Kyari village and 291 families belonging to the ST communities who are proposed to be re-settled in village Bhimana, Tehsil Pindwara District Sirohi in specific area i.e. Khasra No.143, 144/1 and 146/1. The State, as is evident from its contentions, cites and seeks support from Section 42 of the Land Acquisition Act, to state that the benefits including reservation available to the tribals, which hitherto were enjoyed by the families in Kyari village, who are to be displaced would continue and that they would not be affected because of the re-settlement. 16. As far as the Kyari villagers' grievance is concerned, this Court is satisfied from the record that extensive consultations were held and Social Impact Assessment Report exhaustively deals with all the material aspects. The State's assertion that the report was published and made available publicly to those likely to be adversely impacted by the acquisition and the rehabilitation plan, has not been refuted by the petitioners. The State's assertion that the report was published and made available publicly to those likely to be adversely impacted by the acquisition and the rehabilitation plan, has not been refuted by the petitioners. It is also evident from the plan that besides the re-settlement and re-rehabilitation, the proposal also includes monetary compensation for the purpose of building 291 residential houses public units apart from rehabilitation grant of Rs. 86,000/- (for one year per family); the other amounts are Rs. 50,000/- towards one-time expenditure and Rs. 25,000/- per family towards expenditure for cattle rehabilitation; lump sum rehabilitation grant of Rs. 50,000/- per family. In terms of the physical infrastructure in village Bhimana, three Community Centers are proposed to be built; besides that, 13 Hand Pumps, a 50 litre water tanker with tube-well and provision for electricity for tube well set apart at Rs. 3.1 lakhs, and lastly two Schools (for construction of which Rs. 40 lakhs are sanctioned). Budget has also been allocated for overall development of the internal and external development of the village localities and for construction of community and religious buildings; as also for the construction of two primary health centers, Aanganwari and veterinary clinic etc. 17. Having regard to these specific budget allocations and given that each of the 291 families would be allotted a plot besides being provided with monetary re-compense for construction of a house/unit apart from a year's grant and compensation additionally, this Court is of the opinion that the complaint with respect to arbitrariness in the procedure followed, for preparation of Social Impact Assessment Report or that it was prepared in an opaque and non-transparent manner, is insubstantial; it cannot survive. 18. The second aspect and perhaps a more important one is that Kyari Villagers are tribals, who reside in a Tribal Sub Plan area and are accordingly entitled to reservation benefits under the Constitution of India (extended to tribals living in the Fifth scheduled areas). The state's defence is that the benefits enjoyed by them till date would continue to be fully enjoyed even after shifting into the non-TSP area. For that purpose, State relied upon Section 42 of the Act of 2013 which reads as follows: "42. Reservation and other benefits (1) All benefits, including the reservation benefits available to the Schedule Tribes and Scheduled castes in the affected areas shall continue in the resettlement area. For that purpose, State relied upon Section 42 of the Act of 2013 which reads as follows: "42. Reservation and other benefits (1) All benefits, including the reservation benefits available to the Schedule Tribes and Scheduled castes in the affected areas shall continue in the resettlement area. (2) Whenever the affected families belonging to the scheduled Tribes who are residing in the Scheduled Areas referred to in the Fifth Schedule or the tribal areas referred to in the Sixth Schedule to the Constitution are relocated outside those areas, then, all the statutory safeguards, entitlements and benefits being enjoyed by them under this Act shall be extended to the area to which they are resettled regardless of whether the resettlement area is a Scheduled Area referred to in the said Fifth Schedule or a tribal area referred to in the said Sixth Schedule, or not. (3) Where the community rights have been settled under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007), the same shall be quantified in monetary amount and be paid to the individual concerned who has been displaced due to the acquisition of land in proportion with his share in such community rights." 19. The background under which benefits of reservation were extended to Scheduled caste and tribal communities in India was graphically explained by the Supreme Court in its decision in Soosai v Union of India and Others , (1985) Supp1 SCC 590, where the Supreme Court observed as follows: XXX XXX XXX "And through most of Indian history the oppressive nature of the caste structure has denied to those disadvantaged castes the fundamentals of human dignity, human self respect and even some of the attributes of the human personality. Both history and latter day practice in Hindu society are heavy with evidence of this oppressive tyranny, and B despite the efforts of several noted social reformers, specially during the last two centuries, there has been a crying need for the emancipation of the depressed classes from the degrading conditions of their social and economic servitude. Dr. J.H. Hutton, a Census Commissioner of India, framed a list of the depressed classes systematically, and that list was made the basis of an order promulgated by the British Government in India called the Government of India (Scheduled Castes) Order, 1936. Dr. J.H. Hutton, a Census Commissioner of India, framed a list of the depressed classes systematically, and that list was made the basis of an order promulgated by the British Government in India called the Government of India (Scheduled Castes) Order, 1936. The Constitution (Scheduled Castes) Order, 1950 is substantially modelled on the Order of 1936. The Order of 1936 enumerated several castes, races or tribes in an attached Schedule and they were, by paragraph 2 of the Order, deemed to be Scheduled Castes. Paragraph 3 of the same order declared that the Indian Christians would not be deemed to be members of the Scheduled Castes. During the framing of the Constitution, the Constituent Assembly recognised that the Scheduled Castes were a backward section of the Hindu community who were handicapped by the practice of untouchability , and that this evil practice of untouchability was not recognised by any other religion and the question of any Scheduled Caste belonging to a religion other than Hinduism did not therefore arise B. Shiva Rao: The Framing of India's Constitution: A Study p. 771). The Sikhs however, demanded that some of their backward sections, the Mazhabis, Ramdasias, Kabirpanthis and Sikligars, should be included in the list of Scheduled Castes. The demand was accepted on the basis that these sects were originally Scheduled Caste Hindus who had only recently been converted to the Sikh faith and "had the same disabilities as the Hindu Scheduled Castes (Supra p. 771). The depressed classes within the fold of Hindu society and the four classes of the Sikh community were therefore made the subject of the original Constitution (Scheduled Castes) Order, 1950. Subsequently in 1956 the Constitution (Scheduled Castes ) Order, 1950 was amended and it was broadened to include all Sikh untouchables." 20. The structure and framework of the Presidential Order, of 1950 and later amendments through Acts of Parliament are such that benefits of reservation flow on the basis of residence in the state, or residence in the area concerned, as the case may be. The structure and framework of the Presidential Order, of 1950 and later amendments through Acts of Parliament are such that benefits of reservation flow on the basis of residence in the state, or residence in the area concerned, as the case may be. The question of whether one individual who belongs to a scheduled caste or tribe of one state, continues to enjoy the privileges of reservation and benefits flowing by it, in the event she or he migrates to another state, which too might extend reservation benefits to members of that community or tribe, was considered in Marri Chandra Shekhar Rao v Dean, Seth G.S. Medical College and Others , (1990) 3 SCC 130 . The Supreme Court, after exhaustively considering the provisions of the Constitution of India, and the Constituent Assembly debates, held that such benefits could not be given upon migration from the area where the individual received reservation benefits in the area to which she or he migrates, because such benefits are based upon assessment of the concerned caste or community's extent of backwardness and deprivation in the area where he or she resides. The court held as follows: "This, however, does not affect the present controversy. We also had the advantage of heating the Advocate General of Maharashtra-Mr. A.S. Bobde. Mr. Raju Ramachandran learned advocate for the petitioner urged before us to take holistic view of the Constitution. Indeed, he is fight that a holis- tic approach to the different provisions of the Constitution should be taken. Having regard, however, to the purpose and the scheme of the Constitution which would be just and fair to the Scheduled Castes and Scheduled Tribes, not only of one State of origin but other states also where the Scheduled Castes or tribes migrate in consonance with the rights of other castes or community, fights should be harmoniously balanced. Reservations should and must be adopted to advance the prospects of weaker sections of society, but while doing so care should be taken not to exclude the legitimate expectations of the other segments of the community. We have reached the aforesaid conclusion on the interpretation of the relevant provisions. In this connection, it may not be inappropriate to refer to the views of Dr. We have reached the aforesaid conclusion on the interpretation of the relevant provisions. In this connection, it may not be inappropriate to refer to the views of Dr. B.R. Ambedkar as to the prospects of the problem that might arise, who stated in the Constituent Assembly Debates in reply to the question which was raised by Mr. Jai Pal Singh ("Safeguards for Scheduled Caste and Tribes-Founding Fa- ther's view" by H.S. Saksena, at p. 60) which are to the following effect: "He asked me another question and it was this. Supposing a member of a scheduled tribe living in a tribal area migrates to another part o/the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local government, within whose jurisdiction he may be residing: the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But, so far as the present Constitution stands, a member of a scheduled tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practically impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them ..... " In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe Certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admit- ted as being domicile does not fall for consideration. " In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe Certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admit- ted as being domicile does not fall for consideration. Having construed the provisions of Article 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those scheduled caste and scheduled tribe students who get the protection of being classed as scheduled caste or scheduled tribes in 'the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to other is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has so migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution, This is a matter which the State legislatures or the Parliament may appropriately take into consideration." 21. In the present case, the "migration" of Kyari villagers, at least the 291 tribals who are entitled to reservation benefits by virtue of their being part of notified scheduled tribes living in TSP areas, is entirely involuntary; it cannot even be termed as "migration". It is entirely necessitated by the compulsion of displacement, on account of a development project which calls for acquisition of their lands and their compulsory movement elsewhere, out of the TSP area. It is entirely necessitated by the compulsion of displacement, on account of a development project which calls for acquisition of their lands and their compulsory movement elsewhere, out of the TSP area. To mitigate this hardship and ensure that there is no deprivation of the benefits enjoyed and granted to the Kyari villagers, Section 42 of the Land Acquisition Act, guarantees that all the previous benefits of reservation would continue as if the acquisition had not taken place. This is precisely the kind of law or legislation that the Supreme Court referred to, in the opinion of this Court. The assurance and guarantee under Section 42 i.e. that "all benefits, including the reservation benefits available to the schedule tribes and scheduled castes in the affected areas shall continue in the resettlement area" sufficiently safeguards the rights of the Kyari villagers who have till date been given reservation benefits on account of residing in TSP areas. 22. The last issue is the grievance of people in the Bhimana village, that the relocation and resettlement of Kyari village in their village, would result in diminution of grazing lands for cattle. They argue that having regard to the fact that 2505 heads of cattle was the declared cattle population in the last census, at least over a thousand bighas should be kept apart for the purpose. The provision they rely on, i.e. Rule 6 of the Tenancy Rules, reads as follows: 6"6. In all villages, which have been surveyed and in which no pasture lands have earmarked the Tehsildar shall proceed to earmark such land from the unoccupied area of Maqbooja Birs of the village) in consultation with the village Panchayat. In doing so he shall have regard to the total number of the cattle in the village and adopt roughly a scale of one half bigha per head of cattle and also take into consideration not only the cattle population of the village but also its total unoccupied area, the area under cultivation and the demand for cultivation. The Tehsildar shall announce the villagers the proposal that he intend to make, and the S.D.O. shall give an opportunity to the villagers to advice any objections to the proposal that they may wish to make before he finally sanctions the Tehsildar's proposal." 23. In the present case, the documents produced by the respondents clearly show that the petitioner, Ms. The Tehsildar shall announce the villagers the proposal that he intend to make, and the S.D.O. shall give an opportunity to the villagers to advice any objections to the proposal that they may wish to make before he finally sanctions the Tehsildar's proposal." 23. In the present case, the documents produced by the respondents clearly show that the petitioner, Ms. Meera Kumari had consented to the resettlement plan, in village Bhimana, to Kyari villagers; she had signed on the plan. Nevertheless, the argument regarding diminished grazing area is an aspect that has to be independently considered by this Court. 24. On this aspect, it is apparent, from a plain reading of Rule 6 (extracted above) that it does not positively mandate, that come what may, at least half a bigha should be set apart per cattle, as the norm for ensuring adequate grazing lands. Now on this aspect, the respondents say that 540 odd acres are available for grazing, which would not be so drastically affected in the event of relocating Kyari villagers in Bhimana. Besides, the court notices that the standard of 0.5 bigha is a guiding standard: not an invariable or inflexible one. The rule, in fact, states that the revenue official should "adopt roughly a scale of one half bigha per head of cattle and also take into consideration not only the cattle population of the village but also its total unoccupied area, the area under cultivation and the demand for cultivation." Thus, the available area, the area under cultivation and total unoccupied area are also to be reckoned while considering the acquisition and allotment of land. The decision of the respondents, on this light cannot be termed arbitrary or unprincipled. 25. For the foregoing reasons, it is held that the petitioners' contentions are insubstantial and lack merit. The writ petitions are therefore, dismissed without order on costs.