Kichhu Ram And Another vs State Of U P And 5 Others
2019 Latest Caselaw 2612 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- WRIT - C No. - 6499 of 2019
 
Petitioner :- Kichhu Ram And Another
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
WITH
 
Case :- WRIT - C No. - 6501 of 2019
 
Petitioner :- Brijesh Kumar And 7 Others
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
WITH
 
Case :- WRIT - C No. - 6503 of 2019
 
Petitioner :- Jagdish And 4 Others
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
WITH
 
Case :- WRIT - C No. - 6506 of 2019
 
Petitioner :- Vishan Swaroop
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
WITH
 
Case :- WRIT - C No. - 6509 of 2019
 
Petitioner :- Islamuddin And 33 Others
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
WITH
 
Case :- WRIT - C No. - 6510 of 2019
 
Petitioner :- Yogesh Kumar And 35 Others
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
WITH
 
Case :- WRIT - C No. - 6512 of 2019
 
Petitioner :- Mahendra Singh And 5 Others
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
WITH
 
Case :- WRIT - C No. - 7897 of 2019
 
Petitioner :- Dal Chand and 15 others
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Shiv Kant Mishra,Ganga Dhar Shukla
 
Counsel for Respondent :- C.S.C.,Suresh Singh
 
Hon'ble Pankaj Kumar Jaiswal,J.

Hon'ble Dr. Yogendra Kumar Srivastava,J.

(Delivered by Hon'ble Pankaj Kumar Jaiswal, J.)

1. Heard Sri S.K. Mishra, learned counsel for the petitioners, Sri Manish Goyal, learned Additional Advocate General and Sri Suresh Singh, learned Additional Chief Standing Counsel assisted by Ms Akansha Sharma, learned Standing Counsel for the respondents.

2. The petitioners, in this bunch of writ petitions, are assailing the notification dated 30.10.2018 issued under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter called as "the Act") and the notification dated 18.01.2019 issued under Section 19 of the Act on the ground of non-compliance of Sections 10,15(2) and 15(3) of the Act.

3. Brief facts leading to these writ petitions are as follows:

4. The Government of U.P. has envisaged development of a International Greenfield Airport at Jewar District Gautam Budh Nagar, Uttar Pradesh. The mandate for the development of International Greenfield Airport at Jewar has been given to Yamuna Expressway Industrial Development Authority (YEIDA). YEIDA has been appointed as the nodal agency by Government of U.P. to execute the land acquisition process and other activities pertaining to airport development on behalf of Directorate of Civil Aviation, Government of U.P. For the purpose of setting up of an Airport, Clearance Certificate is required from the Ministry of Civil Aviation, Government of India. The site clearance is subject to Obstacle Limitation Survey (OLS) and such OLS surveys have found that the site in question is appropriate for construction of Civil Terminal as well as Cargo Airport. On 06.07.2017 the competent authority has granted site clearance (approval) for setting up of the NOIDA International Greenfield Airport for public use in North of Jewar village District Gautam Budh Nagar, Uttar Pradesh. The validity of site clearance/NOC is of five years from the date of issue. If the construction for which NOC has been issued is not completed within five years of issue or is found to be in deviation from the original proposal the NOC shall be deemed null and void.

5. The 'Airways' is covered by Entry-29 of List-I of Schedule-VII to the Constitution of India.

6. The land acquisition of projected area, as per TEFR (Techno-Economic Feasibility Report) and approved by SIA (Social Impact Assessment) is 1334 hectares and the land owned by the tenure holders in the project affected six villages is 1239.1416 hectares and the land owned by the Government is 94.8584 hectares. The details of the land, which is to be acquired in six villages are as under:

1. Dayanatpur - 395.1404 hectare

2. Rohi - 433.1251 hectare

3. Parohi - 108.4642 hectare

4. Ranhera - 124.9492 hectare

5. Kishorepur - 171.1854 hectare

6. Banwarivas - 6.2773 hectare

7. On 08.12.2017 YEIDA submitted the land acquisition proposal to the Collector, Gautam Budh Nagar and after getting consent of (72%) of the farmers of the project affected area, the Collector, Gautam Budh Nagar sent the proposal for issuing of preliminary notification under Section 11(1) of the Act. The Government of U.P. issued a preliminary Notification on 30th October, 2018 and publication was made in the news papers on 31.10.2018 and 03.11.2018 under Section 11(1) of the Act to acquire 1239.1416 hectares land from six villages. On 20th November, 2018 the Government of U.P. sanctioned Rs. 1259.97 cr. to the Collector, Gautam Budh Nagar to acquire the land. After hearing all objections the Collector sent his report regarding Section 19 of the Act for decision of the State Government on 05.01.2019. The Rehabilitation and Resettlement Scheme was approved by Rehabilitation and Resettlement Commissioner on 04.01.2019 and was sent to the State Government. Thereafter, the State Government issued notification under Section 19 of the Act on 18.01.2019 and publication in the newspapers was made on 19.01.2019.

8. In this bunch of writ petitions, there are total 90 writ petitioners. The Notifications dated 30.10.2018 and 18.01.2019 are being raised mainly on the ground of alleged non-compliance of mandatory provision of Section 10 and 15 of the Act. According to the petitioners the land, which is acquired, is multi-cropped land and as per Section 10(4) of the Act, no multi-cropped land can be acquired. Section 10(4) of the Act reads as under:

"10. Special provision to safeguard food security:-

(4) In a case not falling under Section (1), the acquisition of the agriculture land in aggregate for all projects in a district or State, shall in no case exceed such limits of the total net sown area of that district or State, as may be notified by the appropriate Government.

9. A perusal of sub-section (4) of Section 10 of the Act discloses that it is either the District or the State, which can be taken as a unit for the assessment of the agricultural land vis-a-vis the project set-up in the district or the State and where the district is taken as a unit, then the total net sown area in the district will be the relevant consideration for the purpose of acquisition and for that purpose notification is issued by the Government. In the case in hand, the net sown area of District Gautam Budh Nagar, which has been taken as unit, is 64046.00 hectares, out of which for the project in question only 1239.1416 hectares of land is being acquired and this is only 1.9 % of the total land. The State Government has notified 5% of the sown area as the limit applicable for the purpose of Section 10 (2) of the Act. The writ petitioners in writ petition no. 6499 of 2019 have not disclosed the Khasra numbers and there are contradictions in the pleadings inasmuch as in paragraph no. 8 of the writ petition it is stated to be three cropped land, whereas in paragraph no. 20, it is stated to be four cropped land. The clearance given by the Ministry of Civil Aviation subject to certain conditions and was based upon OLS survey report. The clearance certificate issued by the Ministry of Civil Aviation dated 06.07.2017 discloses that it is a time bound project and project is to be completed within the time frame fixed for the purpose.

10. A perusal of the objections filed by the writ petitioners along with the writ petitions discloses that the petitioners have raised the issue in respect of grant of employment, rate and quantum of compensation, rehabilitation and resettlement plan. In this bunch of writ petitions, all the objections are stereo typed and most of objections are verbatim copies with only address and name of persons having been changed. As per the report dated 05.01.2019 submitted by the Collector, all the objections have been dealt with in extenso by the Collector after giving opportunity of hearing following the provisions contained under Rule 23 of U.P. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2016 (hereinafter referred as "the Rules"). The recommendation of the Collector was only to acquire 1239.1416 hectares of land. The petitioners were duly heard and there is compliance of the provisions contained under Section 15 of the Act read with Rule 24 of the Rules framed by the State Government under Section 109 of the Act.

11. According to the petitioners, consent has not been obtained from atleast 70% of the affected families in terms of Section 2(2) of the Act. The counsel for the respondents, on the basis of information received , have placed reliance upon a report of the Collector dated 05.01.2019 to contend that there are six villages that would fall within the area covered for the purpose of the project and the number of families to be affected would be 5926 out of which 4235 families have already given their consent for the project. The percentage of affected families which have given consent comes to 72%, which is more than 70%. Thus, the argument of the learned counsel for the petitioners that no consent has been obtained and atleast consent of 70% of the affected families is required under Section 2(2) of the Act, is not sustained.

12. It is also submitted by the learned counsel for the petitioners that in terms of Section 2(d) of the Act, the Industrial Development Area means an area declared as such by the State Government by notification and the State Government has deliberately and maliciously issued the notification on 18.05. 2018 in terms of which the villages in question have been included in district Gautam Budh Nagar. A bare perusal of the notification dated 18.05.2018 (Annexure-4 to the writ petition no. 6510 of 2019) discloses that it is a notification issued by the State Government under the proviso to cluase (1) of Article 243-Q of the Constitution of India read with Section 21 of General Clauses Act, 1897. The said notification is not a subject matter of challenge in this bunch of writ petitions. The argument of learned counsel for the petitioners is based upon Section 6 of U.P. Industrial Area Development Act, 1976 and the contention of the learned counsel for the land owners is that it is only the Industrial Development Authority that can develop the site for Industrial, Commercial and Residential purposes and provide infrastructure as well as provide amenities. There is no pleading in the writ petition based upon Section 6 of the Act, 1976 nor any ground is taken in the writ petition based upon the argument advanced by the learned counsel for the petitioners.

13. The relevant provisions of the Act, 1976 are reproduced as under:

10. Special Provision to safeguard food security.-(1) Save as otherwise provided in sub-section (2), no irrigated multi-cropped land shall be acquired under this Act.

(2) Such land may be acquired subject to the condition that it is being done under exceptional circumstances, as a demonstrable last resort, where the acquisition of the land referred to in sub-section (1) shall, in aggregate for all projects in a district or State, in no case exceed such limits as may be notified by the appropriate Government considering the relevant State specific factors and circumstances.

(3) Whenever multi-crop irrigated land is acquired under sub-section (2), an equivalent area of culturable wasteland shall be developed for agricultural purposes or an amount equivalent to the value of the land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing food-security.

(4) In a case not falling under sub-section (1), the acquisition of the agricultural land in aggregate for all projects in a district or State, shall in no case exceed such limits of the total net sown area of that district or State, as may be notified by the appropriate Government.

Provided that the provisions of this section shall not apply in the case of projects that are linear in nature such as those relating to railways, highways, major district roads, irrigation canals, power lines and the like.

15. Hearing of objections.- (1) Any person interested in any land which has been notified under sub-section (1) of Section 11, as being required or likely to be required for a public purpose, may within sixty days from the date of the publication of the preliminary notification, object to -

(a) the area and suitability of land proposed to be acquired;

(b) justification offered for public purpose;

(c) the findings of the Social Impact Assessment report.

(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objection an opportunity of being heard in person or by any person authorized by him in this behalf or by an Advocate and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under sub-section (1) of Section 11, or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled, for the decision of that Government.

(3) The decision of the appropriate Government on the objections made under sub-section (2) shall be final."

14. Rule 23 of U.P. Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Rules, 2016 is reproduced as under :

"23. Hearing of objections.-(1) The intimation of Public hearing shall be conducted by giving notice in two daily newspapers circulating in the affected area of which at least one shall be in the regional language, and also by way of a public notice by affixing it at some conspicuous places in the affected areas, indicating its time, place of the office for hearing (preferably at the office of land acquisition officer) and the date therein.

(2) Hearing of objections under sub-section (2) of Section 15 should be performed by the Collector for the purpose of acquisition, in person and not be delegated.

(3) When the Collector receives, within the prescribed period, a written objection from a person interested in the land, he should cause a notice to be served on the objector to appear before him in person or by a duly authorized representative or by an authorized pleader on a specified date, time and place to produce the evidence, if any, on which he relies. Notice of the hearing and enquiry should also be given to the requiring body; the latter, if he desires to be heard or to adduce evidence in support of the proposed acquisition, should be permitted to do so either in person or through an authorized representative.

(4) On the application of either party the Collector may exercise his powers under Section 35 of the Act.

(5) The hearing may be adjourned by the Collector from time to time, if necessary.

(6) The enquires must be completed most expeditiously in view of first proviso to Section 19, whereby time limit of one year has been prescribed from the date of publication of preliminary notification under sub-section (1) of Section 11 to publication of declaration under Section 19 of the Act:

Provided that the State Government shall have the powers to extend the period of hearing objections if in opinion circumstances exist justifying the same:

Provided further that any such decisions to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of authority concerned.

(7) The Collector after hearing all the objections and recording a memorandum of the evidence produced in support thereof or in support of the proposal to acquire the land and after making further enquiry if he thinks necessary, he shall submit the case for decision of the State Government containing his recommendations on the objections, together with the record of proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled for the decision of the Government, at the time of sending proposal of declaration under Section 19 of the Act.

Provided that, the State Government or District Collector as case may be shall take decision on such recommendations for the project. The decision of the State Government/District Collector shall be final:

Provided further that, if acquisition of land for any project area falls under the jurisdiction of more than one district, then the State Government or the District Collector, as the case may be, shall send the proposal to the concerned Administrative Department at Government level, for the necessary approval. The decision of the administrative department shall be final."

15. As per the instructions and submissions made by learned Additional Advocate General, the site clearance was granted on 06.07.2017 by the Government of India, Ministry of Civil Aviation, which was approved by the Cabinet of respondent no. 1 on 05.12.2017. The Government of U.P. authorized Gautam Budh University as Social Impact Agency (SIA) on 11.01.2018 and notification for SIA under Section 4 of the Act was issued on 11.01.2018. The SIA completed and submitted draft on 03.04.2018 and conducted public hearing from 28.05.2018 to 02.06.2018. Thereafter, Multi-disciplinary Expert Group submitted its recommendations along with the SIA report to the Government of U.P. on 16.08.2018. The Government of U.P. approved the report of SIA on 10.10.2018 under Section 8 of the Act. On 17.10.2018 the decision of SIA and SIMP were published in the newspapers by the Government of U.P. The SIA informed the Collector, Land Acquisition about the Project affected families by letter dated 10.09.2018, thereafter, Collector sent its proposal to the Government of U.P. for issuance of notification under Section 11 of the Act. On 30.10.2018 Notification under Section 11 of the Act was issued and the same was published in the newspapers on 31.10.2018 and 03.11.2018, respectively. A notice was published inviting objections under Section 15 of the Act, thereafter, the Collector, after hearing the objections, which were 263 in number, sent its recommendation on 05.01.2019 for taking decision by the State Government. The R & R Administrator conducted a public hearing on R & R Scheme from 26.12.2018 to 19.12.2018 and submitted its final draft to the Collector on 31.12.2018 and after review of R & R Scheme by R & R Committee at the project level on 31.12.2018, the Collector sent draft of R & R Scheme with his suggestions to R & R Commissioner for approval. Thereafter, Government of U.P. issued notification under Section 19 of the Act for publication in the newspapers. The Collector issued notices to project affected families under Section 21 of the Act on 19.01.2019 and fixed 20.02.2019 for filing claim and objections within the period mentioned in the public notice.

16. 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 had 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 regard of the acquisition in question.

17. In this case, we find that the Collector, after giving opportunity to the landowners submitted his report as provided under Section 15(2) of the Act as well as under Section 23 of the Rules. The Collector after personal hearing to all the landowners has prepared a report on 05.01.2019. As per the aforesaid report, it is clear that all the objections were heard and thereafter the Collector made his report as provided under Section 15(2) of the Act to the Government so as to enable the Government to take appropriate decision.

18. The Government of U.P., on 14.01.2019, has taken a decision accepting the aforesaid report of Collector and issued the notification under Section 19 of the Act. Thus, in our view necessary compliance has been made on the part of Collector with the procedure provided under Section 15(2) of the Act.

19. The copies of the documents, which have been placed before us by the learned Additional Advocate General on the basis of instructions received on 23.02.2019, show that all the necessary compliance of which was provided under the Act has been made.

20. Learned counsel for the petitioners was also not able to show from the record that there was no proper compliance of Section 15(2) of the Act by the Collector.

21. For the above-mentioned reasons, we are of the view that the objections of the petitioners have been dealt with by the Collector after giving due opportunity of hearing to the land owners and after following the provisions contained under Rule 23 of the Rules. Thereafter the matter was sent by Collector to the Board of Revenue and from Board of Revenue to State Government and after the satisfaction of the State Government the notification came to be issued under Section 19 of the Act. Thus, necessary compliance of Section 15 of the Act has been made. Moreover in the project in question, only 1239.1416 hectares of land is being acquired and which is only 1.9 % of the total land. The State Government has notified 5% of sown area as relevant consideration and thus the acquired area is not exceeding the prescribed limit of total sown area of land in District Gautam Budh Nagar. Thus, the requirement of Section 10 of the Act stands fulfilled.

22. In the light of forgoing discussions and on examining the writ petitioners' case from all angles, we find no merit in the above writ petitions, which fail and are accordingly, dismissed. No order as to costs.

Date: 08 April, 2019

Ashish

(Dr. Y.K. Srivastava, J.) (Pankaj Kumar Jaiswal,J.)