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Madhya Pradesh High Court · body

2019 DIGILAW 77 (MP)

Narayan Das v. State of M. P.

2019-01-23

R.S.JHA, SANJAY DWIVEDI

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JUDGMENT : R.S. JHA, J. This appeal has been filed by the appellants under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, being aggrieved by order dated 12-5-2010 passed by the learned Single Judge in W. P. No. 13102/2008. 2. As is evident, the appellants had filed the present appeal assailing the acquisition proceedings undertaken by the respondents for acquiring the appellants land. 3. Before entering into the issue raised by the appellants before this Court, it is pertinent to note that the respondent authorities undertook acquisition proceedings for acquiring 1000 Hectares of land for the respondent private company namely; Essar Power Limited for the purposes of setting up an Ultra Mega Power Plant of 2000 M.W. As on date, the acquisition proceedings in respect of the entire 1000 Hectares of land is completed except 2.15 hectares of land involved in the present appeal and the petitions that had been filed by certain individuals challenging the same, have been dismissed by the order of the learned Single Judge which is under challenge before this Court. 4. It is pertinent to note that out of the 5 petitions that were dismissed by the learned Single Judge, the present Writ Appeal has been filed only by four of the petitioners of W. P. No. 12793/2008 and that out of the four appellants/ petitioners before this Court, the land of appellant No. 1 which is situated in village Karsuallal is not being taken over by the respondent company and has been left as it is and that pursuant to the proceedings for acquisition, appellant Nos. 3 and 4 have already accepted the compensation awarded by the competent authority, though it is stated that they have done so under protest. 5. Admittedly and undisputedly, the present appeal relates to only 2.15 Hectares of land. In other words, it is an undisputed fact that out of the total 1000 Hectares of land acquired by the respondent company, the present dispute relates only to 2.15 Hectares and that, on the remaining part of the land, the company has already established the Ultra Mega Power Project which has already been commissioned and is functioning. 6. In other words, it is an undisputed fact that out of the total 1000 Hectares of land acquired by the respondent company, the present dispute relates only to 2.15 Hectares and that, on the remaining part of the land, the company has already established the Ultra Mega Power Project which has already been commissioned and is functioning. 6. The appellants have assailed the order of the learned Single Judge before this Court on four grounds, namely; (i) that the respondent authorities issued notification under section 4 of the Land acquisition Act (hereinafter referred to as ‘the Act’), for acquisition of land on 29-5-2007 prior to entering into an agreement with the respondent company as required by sections 39, 40 and 41 of the Act, that is, on 5-9-2007 and, therefore, in view of the law laid down by the Supreme Court in the case of Smt. Somawanti and others vs. State of Punjab and others, AIR 1963 SC 151 and State of Gujarat and another vs. Patel Chaturbhai Narsibhai and others, AIR 1975 SC 629 , General Government Servants Co-operative Housing Society Limited, Agra, etc. vs. Sh. vs. Sh. Wahab Uddin and others, etc., (1981) 2 SCC 352 and Devinder Singh and others vs. State of Punjab and others, AIR 2008 SC 261 , the entire acquisition proceedings are vitiated and deserve to be quashed on account of non-compliance of the mandatory provisions of Rule 4 of the Land Acquisition (Company) Rules, 1963 (hereinafter referred to as ‘the Rules of 1963’); (ii) that the powers conferred for conducting an enquiry under Rule 4 of the Rules of 1963, should have been exercised by the Sub Divisional Officer who had been authorized to do so by the Collector, but contrary to the provisions of the aforesaid Rule, the enquiry was conducted by the Additional Tehsildar and, therefore, the same deserves to be quashed; (iii) that the acquisition has been made by the respondents for a private company but the notification issued under section 6 of the Act, mentions that it is for a public purpose which is again contrary to the law laid down by the Supreme Court in the case of Ramakrishna Mission, Howrah vs. P. N. Talukdar and others, AIR 1965 SC 646 and; (iv) that no opportunity of hearing was given to the appellants as required by the provisions of the Act of 1963, before issuing a declaration under section 6 of the Act. 7. The learned Government Advocate appearing for the State as well as the learned counsel for the respondent/Company submit that an agreement was entered into by the Company as required by sections 39, 40 and 41 of the Act on 5-9-2007 and the notification under section 6 of the Act, was thereafter issued on 22-9-2007 which is in accordance with the provisions of sections 39, 40 and 41 of the Act. It is submitted that the Supreme Court has held in the case of M/s Fomento Resorts and Hotels Ltd. vs. Gustavo Ranato Da Cruz Pinto and others, (1985) 2 SCC 152 , that the aforesaid provisions or the Rules of 1963 do not prescribe or mandate that an agreement has to be entered into prior to issuance of the notification under section 4 of the Act, but only requires the steps as aforesaid to be taken prior to issuance of the notification under section 6 of the Act, and therefore the contention of the appellants is merit less. 8. 8. It is submitted that a perusal of the documents filed by the respondents along with the return (Annexure-R/6) dated 26-7-2006 makes it clear that the enquiry report was infact submitted by the Collector himself. However, while doing so, he had called for reports from the SDO and other Revenue Authorities and, therefore, it is factually incorrect to state that the enquiry was not conducted by the SDO who was authorized by the Collector to do so. As far as the issue No. (iii) raised by the appellants is concerned, it is submitted that the notification issued under section 6 of the Act, dated 22-9-2007 has to be read as a whole and a perusal thereof makes it clear that public purposes mentioned therein is the construction of the work relating to private company and, therefore, in view of the law laid down by the Supreme Court in the case of Ramakrishna Mission (supra), wherein it has clearly been stated that in such cases where a clarification in respect of the public purpose has been mentioned in section 6 notification itself, no notification is valid and cannot be held to be contrary to the provisions of the Act, no case is made out. 9. It is further submitted that during the acquisition proceedings, all the residents of the area were given an opportunity on three occasions to appear before the authority. It is submitted that they were noticed to appear before the authority at the first instance when an enquiry under Rule 4 of the Rules of 1963, was undertaken. Thereafter, they were given notices for appearing in the proceedings under section 5-A of the Act and subsequently for proceedings under section 9 of the Act. The respondents have pointed out that some of the appellants infact appeared before the authorities during the proceedings undertaken under section 5-A of the Act, in respect of village Karsuallal as is evident from a perusal of the record of the proceedings and, therefore, due and adequate opportunity was given to the appellants. 10. The respondents have pointed out that some of the appellants infact appeared before the authorities during the proceedings undertaken under section 5-A of the Act, in respect of village Karsuallal as is evident from a perusal of the record of the proceedings and, therefore, due and adequate opportunity was given to the appellants. 10. The learned counsel for the respondents have submitted that, quite apart from the above, a perusal of the representation/objections filed by the appellants along with the appeal makes it clear that they did not, at any point of time, assail the validity of the acquisition proceedings on the ground on which they have challenged the same before this Court in the writ appeal and in fact the only ground and contention raised by the appellants in the representation relates to quantum of compensation, implementation of the rehabilitation policy, granting employment to family members and other benefits and in such circumstances, as the appellants failed to take up any of the issues before the authorities or raise any objection in that regard before the authority concerned, they cannot be permitted to do so before this Court at this stage. 11. We have heard the learned counsel for the parties at length. It is observed from a perusal of sections 39, 40 and 41 of the Act, that the statutory provisions clearly stipulate that sections 6 to 16 and 18 to 37 of the Act, shall not be put into force while acquiring the land for a company unless the previous consent of the appropriate Government has been obtained or the company has executed an agreement hereinafter mentioned. 12. A bare perusal of these sections itself makes it clear that the conditions precedent for making sections 6 to 16 (and not sections 4 to 16) and sections 18 to 37 apply to acquisition in favour a company are obtaining previous consent of the appropriate Government and execution of an agreement by the company. The statutory provisions do not make any mention in this regard to section 4 of the Act. This is further evident from a perusal of Rule 4(4) of the Rules of 1963. 13. The statutory provisions do not make any mention in this regard to section 4 of the Act. This is further evident from a perusal of Rule 4(4) of the Rules of 1963. 13. From the facts available in the present case, it is apparent that the respondent company made a request for acquisition of land for setting up a mega power plant on 25-11-2005 to the Collector concerned, who thereafter asked the Sub Divisional Officer to submit a report in that regard which was submitted by the Sub Divisional Officer on 20-7-2006. The Collector on the basis of the information furnished by the Sub Divisional Officer as well as the Additional Tehsildar, which incidentally is in compliance with the requirement mentioned under Rule 4 of the Rules of 1963, submitted an enquiry report to the Principal Secretary Revenue on 26-7-2006 where after the appropriate Government gave its consent on 17-10-2006 as required by the provisions of the Act. Pursuant to the consent given by the Government, the company entered into an agreement with the Government on 5-9-2007. 14. As far as the necessary notifications required to be issued under the Act are concerned, subsequent to the consent granted by the Government on 17-10- 2006, notification was issued by the respondent authorities on 29-5-2007 under section 4 of the Act, notice for public hearing under section 5-A of the Act was issued on 2-7-2007 and the report on the hearing recommending declaration under section 6 of the Act was submitted on 20-7-2007 whereupon a declaration/notification under section 6 of the Act was issued on 22-9-2007 which was published in the official Gazette on 5-10-2007. 15. From the aforesaid facts and circumstances it is clearly established and undisputed that the respondent authorities, after conducting an enquiry as contemplated under Rule 4 issued a notification under section 4 of the Act, on 29-5-2007 where after the respondent company entered into an agreement with the Government on 5-9-2007 and that after execution of the aforesaid agreement a notification/declaration under section 6 was published in the Official Gazette on 5-10-2007 and, therefore, the procedure as prescribed by law has been followed by the respondent authorities and no fault can be found with the same. 16. 16. It is also clear that the notification/declaration under section 6 of the Act, was issued on 22-9-2007 after the agreement was entered into by the company with the appropriate Government on 5-9-2007 which is the mandate and requirement of the provisions of section 39 of the Act. 17. From the aforesaid dates that are evident from the record and are not disputed, it is clear and apparent that the respondent authorities have not violated the provisions of sections 39, 40 or 41 of the Act or the provisions of Rule 4 of the Rules of 1963, and the action taken by the authorities is in conformity with the law laid down by the Supreme Court in the case of M/s Fomento Resorts (supra). 18. As far as the first issue raised by the appellants is concerned, we are of the considered opinion that the issue raised by the appellants is squarely covered and answered by the Supreme Court in the case of M/s Fomento Resorts (supra), wherein a three Judges Bench of the Supreme Court, after relying on the judgment in the case of Babu Barkya Thakur vs. State of Bombay (now Maharashtra) and others, AIR 1960 SC 1203 , has thereafter considered the decisions rendered in the cases of Abdul Husein Tayabali and others vs. State of Gujarat and others, AIR 1968 SC 432 as well as Sh. Wahab Uddin (supra) and has held that the observations made therein regarding compliance of section 4 prior to entering into an agreement, were inadvertent and obiter as the provisions of sections 39 and 40 are clear and the only mandate contained therein is to see that the consent of the Government and the agreement by the company have been obtained and executed prior to issuance of the declaration under section 6 of the Act, and that interpreting the sections in any other way would amount to rewriting the provisions which is not permissible. 19. The aforesaid aspect has been extensively discussed by the Supreme Court from para 14 onwards and the opinion in this regard has been recorded in paragraphs 23, 24 and 25, which is as under :- “23. It may be borne in mind in that decision the notification under section 6 was quashed but notification under section 4 was not quashed though observations were made about the purpose and the role of compliance with Rule 4. It may be borne in mind in that decision the notification under section 6 was quashed but notification under section 4 was not quashed though observations were made about the purpose and the role of compliance with Rule 4. Reliance was placed on the following observations at p. 54 of the report: (SCC p. 358, para 13) “A consideration of Rule 4 also shows that its compliance precedes the notification under section 4 as well as compliance of section 6 of the Act.” 24. It appears to us that the reference to Rule 4 in the context in which it was made was inadvertent. What perhaps the Court wanted to convey was the need of compliance of entering into agreement under section 41 before the issuance of notification under section 6 of the Act. Otherwise it appears that there was no enquiry under Rule 4 of the Rules before issuance of the notification under section 4 yet the notification under section 4 was not quashed. The observation then in any event is obiter. 25. On the scheme of the Act, we are of the opinion that on a correct interpretation, it is not necessary that enquiry under Rule 4 must in all cases precede issuance of the notification under section 4 of the Act. In an appropriate case if it is possible, enquiry under Rule 4(1) may be held before the issuance of the notification under section 4. But it is not mandatory requirement that it must precede before the issuance of the notification under section 4.” (underlined by us) 20. It is pertinent to note that in the case of Devendra Singh (supra) which is a two Judges Bench, the Supreme Court has considered the aforesaid 3 decisions in paragraph 45 onwards and in spite of the decision in the case of the three Judges Bench decision in the case of M/s Fomento Resorts (supra) wherein the observations made by the Supreme Court in the case of Wahab Uddin (supra) and Abdul Husein Tayabali (supra) in respect of section 4 were held to be obiter and inadvertent, has gone on to rely upon the same decisions and to hold that the observations made by the three Judges Bench in the case of M/s Fomento Resorts (supra) was not correct. 21. 21. The law in a case where the High Court is confronted with two decisions of the Supreme Court, one of which is a larger three Judges Bench decision and the other a two Judges Bench decision, has been considered by a five Judges Bench of the Supreme Court in the case of Pradip Chandra Parija and others vs. Pramod Chandra Patnaik and others, (2002) 1 SCC 1 , and it was held as under :- “6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.” 22. The five Judges Bench decision of the Supreme Court has been relied upon and followed by the five Judges Special Bench of this Court in the case of Jabalpur Bus Operators Association and others vs. State of M. P. and others, 2003(1) M.P.L.J. 513 , and after quoting the decision in the case of Pradip Chandra Parija (supra), it has been clearly held that the decision of the Larger Bench is binding on smaller Benches in the following terms :- “9. …..In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. …..In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision in binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh’s case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point....” 23. In view of the law laid down by the Supreme Court in the case of Pradip Chandra Parija (supra) and the five Judges Special Bench of this Court in the case of Jabalpur Bus Operators Association (supra) as well as the fact that the three Judges Bench of the Supreme Court in the case of M/s Fomento Resorts (supra) has duly considered the previous decisions and has laid down the law, we are bound to follow the decision of the Supreme Court rendered in the case of M/s Fomento Resorts (supra) which is a three Judges Bench decision delivered earlier than the two Judges Bench decision in the case of Devendra Singh (supra). 24. At this stage we may also consider the decision of the Supreme Court in the case of Patel Chaturbhai Narsibhai (supra), which has been heavily relied upon by the appellants. In the aforesaid case the Supreme Court held that the agreement was required to be entered into prior to issuance of the notification under section 4 of the Act, with reference to and in context of the provisions of sections 39, 40 and 41 of the Act, as amended by the Gujarat Act 20 of 1965, which was made effective and applicable in the State of Gujarat from 9th of July 1965 by which the words “section 6” mentioned in section 39 were substituted by the words “section 4” and the words “either or the report of the Collector under section 5-A sub-section 2 or” were deleted from sections 40 and 41 of the Act. The judgment was delivered with reference to the Act as amended by the Gujarat Act 20 of 1965 and not with reference to the unamended provisions of sections 39, 40 and 41 which are under consideration in this case and, therefore, does not help the case of the appellants as it is not applicable to the facts and law of the present case. Similarly the judgment in the case of Smt. Somawanti (supra) has no applicability to the issue raised in the present case as it was decided prior to the coming into force of the Rules of 1963 and, therefore, did not consider there scope and applicability. 25. Similarly the judgment in the case of Smt. Somawanti (supra) has no applicability to the issue raised in the present case as it was decided prior to the coming into force of the Rules of 1963 and, therefore, did not consider there scope and applicability. 25. As far as the second issue raised by the appellants is concerned, the facts narrated above make it further clear that the enquiry report was infact submitted by the Collector himself to the Principal Secretary on 26-7-2006 (Annexure R/6) and not by the Naib-Tehsildar and, therefore, the contention to the contrary made by the appellants being factually misconceived stands rejected. 26. On a perusal of the section 6 notification published by the respondent authorities on 5-10-2007, it is further apparent that the same is in conformity with the law laid down by the Supreme Court in the case of Ramakrishna Mission (supra) specifically paras 3, 5, 9 and 10 wherein the Supreme Court in a similar situation has held that the notification issued by the authorities mentioning the public purpose to be acquisition for a company was in accordance with law and has upheld the same and, therefore, the contention to the contrary made by the appellants in this regard and the third issue raised by them also stands rejected. 27. The fourth issue raised by the appellants is also merit less. We have perused the record and heard the learned counsel for the parties and are of the opinion that the finding recorded by the learned Single Judge to the effect that the appellants and other villagers of the area, were given due opportunity of hearing under section 5-A of the Act, and in such circumstances, there is no violation of the provisions of law in that regard, does not suffer from any perversity or illegality warranting interference. 28. In the circumstances, we do not find any merit in the appeal filed by the appellants which is, accordingly, dismissed. The order of the learned Single Judge is hereby affirmed and confirmed. The record of the case requisitioned by the learned Government Advocate be returned back for onward transmission. Appeal dismissed.