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2019 DIGILAW 182 (UTT)

Ashok Singh v. State of Uttarakhand

2019-03-11

N.S.DHANIK, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. This appeal is preferred by the appellants-writ petitioners against the order passed by the learned Single Judge in Writ Petition No. 271 of 2015 (M/S) dated 28.11.2018. 2. The appellants-writ petitioners invoked the jurisdiction of this Court seeking a writ of mandamus directing the respondents either to acquire the land of the appellants-writ petitioners by initiating proceedings under the Land Acquisition Act and/or to return the land of the appellants-writ petitioners, possession whereof was taken by the respondents for construction of “Kulethi Rasiyara, Dhakna Badola Motor Marg”. 3. Facts, to the limited extent necessary, are that the appellants-writ petitioners are all residents of Village-Kulethi Rasiyara, Punethi, Champawat tehsil in Champawat district. A motorable road, for a length of 7.7 km, was sanctioned under the Pradhan Mantri Gramin Sarak Yojna in the 5th phase in the year 2007-08. The work was commenced from 05.08.2010. The said road was to run through several villages, and the appellants-writ petitioners’ lands fell in the way of the newly constructed road. The appellants-writ petitioners, along with other villagers, requested that their lands to be acquired in terms of the Land Acquisition Act, 1894 (for short ‘the 1894 Act’), and for payment of compensation in terms of the said Act. The respondents assured the appellants-writ petitioners regarding payment of compensation, and took possession of their lands for construction of the Motor Marg. While the road was completed in September, 2011, for which possession of the appellants-writ petitioners’ lands was taken from them as early as in the year 2007, neither were proceedings under the Land Acquisition Act initiated, nor was compensation paid to the appellants-writ petitioners in terms of the said Act. Aggrieved by the failure of the respondents in acquiring the lands, and in not paying them compensation, the appellants-writ petitioners invoked the jurisdiction of this Court. 4. In the order under appeal, the learned Single Judge took note of Paragraphs 11 & 12 of the counter-affidavit that the Department was ready to pay compensation, on the basis of the circle rate prevailing on 28.04.2012, to all persons whose land was used for construction of the road. 4. In the order under appeal, the learned Single Judge took note of Paragraphs 11 & 12 of the counter-affidavit that the Department was ready to pay compensation, on the basis of the circle rate prevailing on 28.04.2012, to all persons whose land was used for construction of the road. The learned Single Judge, relying on Section 31(4) of the Land Acquisition Act, 1894, observed that possession of the land could always be taken by the authorities; after possession of the land was taken over in the year 2007, and when the process of determination of compensation was being carried on in April, 2012, none of the villagers raised any objection against the process of determination of compensation; the compensation was calculated on the basis of the circle rate prevalent at the relevant time, and as notified by the Collector; and sanction for compensation was already granted on the basis of the circle rate prevailing in terms of the letter dated 25.11.2014. 5. The learned Single Judge further observed that the respondents had, in the counter affidavit as well as in the pleadings, submitted that they were willing and ready to pay the compensation as determined by them, but the appellants-writ petitioners were not responding to the call of the respondents to receive the same, despite the fact that the respondents had already communicated it, to the Gram Pradhan of the various villages, calling upon them to inform the land holders, whose land had been taken for the aforesaid project, to receive the compensation thus determined. 6. The learned Single Judge also relied on the contents of the counter affidavit that the road was constructed after taking the consent of all the villagers, and there was no objection from any villager for construction of the road; compensation was determined at the circle rate prevailing at that time; the road was constructed after receiving no objections from the villagers; and this fact was admitted by the appellants-writ petitioners also. 7. 7. The writ petition was disposed of directing that, if the petitioner approached the second respondent to claim compensation, the same shall be determined and remitted to the appellants-writ petitioners within a period of one month from the date of service of a certified copy of the judgment; and the appellants-writ petitioners were not precluded from raising any appropriate proceeding, questioning the propriety or the adequacy of the compensation computed by the respondents. 8. Sri Prabhakar Joshi, learned counsel for the appellants-writ petitioners, would contend that the appellants-writ petitioners had surrendered their lands only on being assured that their lands would be acquired, and compensation would be paid to them in terms of the 1894 Act; they had not given any letter of consent to partake the subject lands free of cost; and, in the absence of written consent by the appellants-writ petitioners in this regard, the self-serving assertion in the counter affidavit, that the petitioner had given their consent, did not justify their being highhandedly deprived of their lands, without initiating proceedings under the 1894 Act, and for payment of compensation in terms thereof. 9. As the dispute mainly revolved around whether or not the appellants-writ petitioners had given their consent, this Court, by its order dated 22.02.2019, called upon Sri Anil Kumar Bisht, learned Standing Counsel for the State of Uttarakhand, to ascertain and place before this Court the written consent, if any, given by the appellants, for the subject land to be acquired for laying the road, without payment of compensation to them, or without following the procedure prescribed under the 1894 Act. We had directed that the said letters of consent be placed before us by 5th March, 2019. 10. When the matter was called on 5th March, 2019, Sri Anil Kumar Bisht, learned Standing Counsel for the State, submitted that despite having addressed a letter to the officials concerned, the records had not been produced; and he be granted further time to produce the records. We, therefore, directed the appeal to be listed on 11.03.2019, and observed that, in case, the said letters of consent were not placed before the Court, both respondent nos. 2 & 3 shall be personally present in Court on 11.03.2019. 11. We, therefore, directed the appeal to be listed on 11.03.2019, and observed that, in case, the said letters of consent were not placed before the Court, both respondent nos. 2 & 3 shall be personally present in Court on 11.03.2019. 11. Today, Sri Anil Kumar Bisht, learned counsel for the State of Uttarakhand, would fairly state that record does not contain and such letters of consent from any of the individuals from whom possession of the land was taken for construction of the road. 12. It is evident therefore that the assertion, in the counter affidavit to the contrary, is a self-serving statement not borne out by the record. Apart from this self-serving statement, which is now acknowledged as not to be based on the record, the only other ground, on which the action of the respondent-writ petitioners was upheld by the learned Single Judge, is Section 31(4) of the 1894 Act. Part V of the 1894 Act relates to payment, and Section 31 thereunder provides for payment of compensation and deposit of the same in Court. Section 31(1) stipulates that, on making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. Section 31(2) stipulates that, if they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted. Section 31(3) stipulates that, notwithstanding anything contained in Section 31, the Collector may with the sanction of the appropriate Government, instead of awarding money compensation in respect of any land, make any arrangement to a person having a limited interest in such land, either by the grant of other lands in exchange, or the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. 13. 13. Section 31(3) enables the Collector, with the sanction of the Government, to make arrangements to a person, who has a limited interest in the land, either by the grant of other lands in exchange or to provide for remission of land-revenue instead of awarding money compensation. Section 31(4) stipulates that nothing in the last foregoing sub-section [which can only mean Section 31(3)] shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof. All that sub-section (4) stipulates is that Section 31(3) would not limit the power of the Collector to enter into any arrangement with any person interested in the land, and who is competent to contract. Admittedly, no such arrangement has been entered into with the petitioners. 14. As noted hereinabove, the record does not disclose the appellants-writ petitioners having agreed to forego their land without its being acquired under the 1894 Act and without payment of compensation in terms thereof. 15. Article 300A of the Constitution of India stipulates that no person shall be deprived of his property, save by authority of law. It is not, therefore, open to the State Government to highhandedly dispossess land owners of their lands, without taking recourse to the law. The law which was prevailing, when the appellants-writ petitioners were dispossessed of their agricultural lands in the year 2007, was the 1894 Act, and it is only on a notification being issued under Section 4(1) thereof, and after passing an award under Section 11, could the appellants-writ petitioners have been dispossessed from their lands. Even in cases of urgency, it is only after a notification was issued under Section 4(1) of the 1894 Act, could the provisions of Section 17(4) of the said Act have been invoked to take possession of the subject lands without conducting an enquiry under Section 5A thereof. 16. Admittedly, no notification was issued by the State Government for acquisition of the subject lands under Section 4(1) of the 1894 Act. Consequently no award could have been, and was in fact not, passed under Section 11 of the 1894 Act. 16. Admittedly, no notification was issued by the State Government for acquisition of the subject lands under Section 4(1) of the 1894 Act. Consequently no award could have been, and was in fact not, passed under Section 11 of the 1894 Act. While the State Government had, no doubt, taken possession of the subject lands in the year 2007 when the 1894 Act was in force, the said Act stood repealed by Section 114(1) of the Right to Fair Compensation and Transparency in Land Acquisition. Rehabilitation and Resettlement Act, 2013 (the “2013 Act” for short). Section 24 of the 2013 Act provides for certain contingencies where the land acquisition process under the 1894 Act shall be deemed to have lapsed. Under sub-section (1) thereof, if an award had not been made under Section 11 of the 1894 Act, then all the provisions of the 2013 Act, relating to the determination of compensation, shall apply. Under Section 24(2), where an award under Section 11 of the 1894 Act has been made five years or more prior to the commencement of the 2013 Act (i.e. on or before 01.01.2009), but physical possession of the land has not been taken or the compensation has not been paid, the land acquisition proceedings shall be deemed to have lapsed. 17. In the present case, not even a notification was issued under Section 4(1) of the 1894 Act, much less an award being passed in terms of Section 11 thereof. As the 1894 Act is no longer in force, consequent on its repeal by the 2013 Act, the respondents are obligated in law to acquire the appellants-writ petitioners land, in terms of the 2013 Act, by issuing a notification under Section 11(1) thereof. 18. Suffice it, in such circumstances, to set aside the order under appeal and, instead, direct the State Government to issue a notification under Section 11(1) of the 2013 Act, complete the process of acquisition, and to pay compensation to the appellants-writ petitioners in terms of the provisions of the 2013 Act at the earliest. The entire exercise, commencing from issuing a notification under Section 11(1) of the 2013 Act, passing an award and for payment of compensation in terms thereof, shall be completed with utmost expedition and, in any event, not later than six months from the date of receipt of a certified copy of this order. 19. The entire exercise, commencing from issuing a notification under Section 11(1) of the 2013 Act, passing an award and for payment of compensation in terms thereof, shall be completed with utmost expedition and, in any event, not later than six months from the date of receipt of a certified copy of this order. 19. The appeal stands allowed accordingly. 20. Let a certified copy of this order be furnished to the parties, on payment of the prescribed charges.