Himachal Pradesh High Court
Unknown vs State Of H.P. & Others on 30 November, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No. 7163 of 2022 a/w CWP Nos.
.
3311, 3312, 3313, 3417, 5703, 5704,
5705, 8006 and 8031 of 2022.
Reserved on: 16.10.2023
Date of decision : 30.11.2023.
1. CWP No. 7163 of 2022
of
M/s Ultratech Cement Ltd. ...Petitioner.
Versus
State of H.P. & others
rt ...Respondents.
2. CWP No. 3311 of 2022
Inder Singh ...Petitioner
Versus
State of H.P. & others ...Respondents
3. CWP No. 3312 of 2022
Kuldeep Singh ...Petitioner
Versus
State of H.P. & others ...Respondents.
4. CWP No. 3313 of 2022
Manjeet Singh ...Petitioner
Versus
State of H.P & others ...Respondents
5. CWP No. 3417 of 2022
Swaran Singh ...Petitioner
Versus
State of H.P. & others ...Respondents
6. CWP No. 5703 of 2022
Om Prakash ...Petitioner
Versus
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State of H.P. & others ...Respondents
7. CWP No. 5704 of 2022
Mast Ram ...Petitioner
.
Versus
State of H.P. & others ...Respondents
8. CWP No. 5705 of 2022
Munshi Ram ...Petitioner
Versus
of
State of H.P. & others ...Respondents
9. CWP No. 8006 of 2022
Ajeet Singh
rt ...Petitioner
Versus
State of H.P. & others ...Respondents
10. CWP No. 8031 of 2022
Harbans Singh ...Petitioner
Versus
State of H.P. & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. Sunil Mohan Goel, Advocate, for the
petitioner in CWP No. 7163 of 2022 and
for respective respondents in CWP No.
3311-3313, 3417, 5703, 5704 and 5705
of 2022.
Mr. Virender Thakur, Advocate, for the
petitioner(s) in CWPs Nos. 3311,
3313, 3417, 5703, 5704, 5705, 8006,
and 8031 of 2022 and for respondents
No. 4, 13, 14 and 19 to 23 in CWP No.
7163 of 2022.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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For the respondents: Mr. Y.P.S. Dhaulta and Mr. Pratush
Sharma, Additional Advocate Generals
with Ms. Priyanka Chauhan and Mr.
.
Rahul Thakur, Deputy Advocate
Generals, for the respondent-State, in all
the petitions.
Mr. Nand Lal Chauhan, Advocate, for
respondents No. 5 to 11, 12(i) (iv) (vi) and
15 to 17 in CWP No. 7163 of 2022.
of
Mr. G.D. Verma, Sr. Advocate, with Mr.
Sumit Sharma, Advocate, for respondent
No. 24 in CWP No. 7163 of 2022.
rt
Satyen Vaidya, Judge:
Since common questions of law and facts are
involved in these petitions, therefore, the same have been
heard together and are being decided by a common
judgment.
2. M/S Ultratech Cement ltd. (hereinafter referred
to as 'the Company') is petitioner in CWP No. 7163 of 2022.
The Company is involved in manufacturing of cement and
grinding of the clinker in villages Baga and Bageri in
District Solan, H.P.
3. CWP Nos. 3311, 3312, 3313, 3417, 5703, 5704,
5705, 8006 and 8031 of 2022 have been filed by persons
(hereinafter referred to as 'Oustees') whose land has been
acquired by State of H.P. for establishment of
manufacturing unit and provisioning of mining area of the
Company. The Company has been impleaded as one of the
.
respondents in the set of petitions filed by the 'Oustees'.
State of H.P. and its authorities including the Land
Acquisition Collector (hereinafter referred to as 'the State')
have been impleaded as respondents by either side.
of
4. The case as projected by the Company is that a
detailed survey was conducted by the Government of
rt
Himachal Pradesh in Mangal area of District Solan in the
year 1999-2000 to explore the presence of lime stone. A
report was prepared and on its basis, bids were invited for
establishment of cement manufacturing plant in the area.
M/s Jai Prakash Associates Limited being the successful
bidder was given consent by the Government of Himachal
Pradesh to establish the cement plant in the year 2004.
Since the Government and private lands were required for
establishment of the manufacturing unit and mining area,
the private lands were acquired for M/s Jai Prakash
Associate Limited under the provision of Land Acquisition
Act, 1894 (for short the 'Act'). A Rehabilitation and Re-
settlement Scheme (for short 'R & R Scheme) was prepared
in the year 2005 for the benefit of the 'Oustees' from
private lands.
.
5. The Land Acquisition Collector passed the award
under Section 11 of the Act on 10.1.2008, whereby 1330-
16 bighas of land was acquired and compensation was
offered. The Collector issued possession certificate on
of
4.4.2008 in terms of section 16 of the Act. The possession
of the acquired land was handed over to M/s Jai Prakash
rt
Associate Limited.
6. The Company has acquired all rights and
liabilities of the aforesaid manufacturing units in June,
2017 from its predecessor M/s Jai Prakash Associates
Limited.
7. Notwithstanding the aforesaid proceedings
undertaken in terms of the Act, certain houses, structures
and trees belonging to private persons in village Bhalag
and village Samtyari remained without assessment as to its
value. It was alleged that the respective owners of the
houses, structures and trees were not allowing the
evaluation by use of force. In order to conclude the
acquisition proceedings within the statutory period of two
years, the Collector had announced the award on
10.1.2008. The factum of absence of evaluation of certain
.
houses, structures and trees was mentioned in the award
with the reasons that had been instrumental in the
inability of the authorities to complete the evaluation
process. It is specifically pleaded by the Company that
of
respondents No. 4 to 18 (in CWP 7163 of 2022) were
persons who had not allowed their houses and structures
rt
to be evaluated despite the fact that the company had
deposited the entire compensation amount as per award
and even some of the private respondents had received the
compensation.
8. The Company filed CWP No. 3073 of 2021 before
this Court, seeking directions against the State to take all
effective steps to get the houses, structures and trees
evaluated, which were subject matter of acquisition in
terms of award dated 10.1.2008. On 15.9.2021, a Division
Bench of this Court had passed the following order:-
"List on 27.10.2021. In the meanwhile State
Government shall evaluate the houses and structures
etc. of the respondents for which no obstruction or
hindrance whatsoever shall be caused by the
respondents as per the assurance given in the open
Court today."
.
9. The Collector, taking into account the evaluation
of the left-over houses, structures and trees passed a
supplementary award on 2.5.2022. As per the Company, it
has deposited the entire amount as per supplementary
of
award dated 2.5.2022.
10. The Company has now approached this Court
rt
with the grievance that despite the passing of
supplementary award and deposit of entire compensation
amount, the 'oustees' were not handing over the
possession of acquired houses, structures and trees. The
Collector had issued notices under Section 12 (2) of the Act
to the 'oustees' on 30.5.2022 and 20.6.2022 but without
any result. The private respondents (in CWP 7163 of 2022)
are still holding the possession of such acquired properties
against the mandate of law and the State being under legal
mandate to enforce the surrender has failed to fulfill its
legal obligations.
11. Respondents No. 4, 13, 14, 19 to 23 (in CWP
7163 of 2022) have objected to the prayer of the Company
on the grounds that the petitioner has not fulfilled its
commitment(s) under the R & R Scheme. It has been
.
submitted that the R & R Scheme was an outcome of a
MOU Executed between Jai Prakash Associates Limited
and the State of Himachal Pradesh. The factum of
retaining the possession of acquired properties has not
of
been denied by the aforesaid respondents. However, they
have sought to justify their action on the allegations of
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non-implementation of R & R Scheme by the petitioner. It
is alleged that the petitioner has not even paid the amount
of compensation enhanced by the reference Court under
Section 18 of the Act. It is further submitted that the
aforesaid respondents have also filed writ petitions for the
implementation of R & R Scheme against the State as also
the petitioner, which were pending before this Court.
12. Respondents 5 to 11 and 15 to 17 (in CWP 7163
of 2022) have also raised separate objections to the claim
of the Company. The acquisition proceedings have been
alleged to be defective for not following the procedure
under Part-VII of the Act. Violation of Rule 4 of the Land
Acquisition Company Rules, 1963 has also been alleged.
The right of the State and the Company to take possession
of the acquired properties from the aforesaid 'oustees' has
.
also been challenged on the ground that R & R Scheme
had not been implemented and the Company had
alternative remedy of filing suit for possession. It has
further been submitted that due to the acts of omission
of
and commission on part of the Company, large scale
damage was caused to the properties of the 'oustees'
rt
between the year 2006-2015, for which, no steps were
taken for rehabilitation and re-settlement of affected
persons. As per the aforesaid 'oustees', neither plots were
allotted to them nor direct employment was provided as per
the R & R Scheme and for such reason they were not liable
to hand over the possession to the Company till the R & R
Scheme was fully implemented.
13. The State in its reply has taken a stand that the
Collector has already taken all the actions as permitted
under law. In case the Company is not able to get the
possession of acquired properties, it was open to the
Company to take recourse to appropriate remedies under
law and the State authorities cannot be made an
instrument to forcibly dispossess the 'oustees'. Precisely,
the state has made averments to the following effects:-
.
"It is further pertinent to submit here that the
possession under section 16 of the act qua the
acquired land related to the present acquisition has
already been delivered to the petitioner due to which
mutation stood attested in their favour. The replying
of
respondents have no authority under any law to run
over the local residents/private respondent to vacate
their acquired land being a welfare state as the
rt
petitioner desired. The petitioner has full liberty to
take appropriate action as per law against the private
respondents in case the acquired land is illegally
occupied by the private respondents despite the
lawful acquisition. The Authorities below, after
taking into consideration the law and order situation
of the area and during the pendency of different writ
petitions as filed against the present supplementary
award, cannot act illegally on the pretext of petitioner
company to use any forceful measures against the
local residents to vacate their acquired land for which
they have never even received the compensation
amount."
14. The Company has filed rejoinder to the reply of
the state. It has been pointed out that under a negotiated
settlement, the provisions of R & R Scheme were modified
to the extent that the company had agreed to pay Rs.
Eleven Lakhs to each affected family. The Company had
deposited the entire amount in terms of negotiated
.
settlement, but it was not being delivered the possession of
the acquired properties, which adversely affected its mining
operations and consequential causing huge losses.
15. In the other set of petitions (CWP Nos. 3311,
of
3312, 3313, 3417, 5703, 5704, 5705, 8006 and 8031 of
2022), the 'Oustees' are seeking directions against the
rt
Company and the State to implement the R&R Scheme.
The 'Oustees' have claimed parity with the case of one Shri
Brij Lal.It has been submitted by the 'Oustees' that Shri
Brij Lal had filed CWP 4247 of 2012 before this Court,
which was disposed of vide order dated 17.9.2019 and
directions were issued to the Deputy Commissioner Solan
to decide the representation of Shri Brij Lal. In result Shri
Brij Lal has been paid a sum of Rs. 34 lakhs by the
Company in lieu of implementation of R&R Scheme. The
'Oustees' have also sought to protect their possession over
the acquired land till the R&R Scheme was similarly
implemented in their cases also.
16. I have heard the learned counsel for the parties
and have also gone through the record carefully.
.
17. It is not in dispute that the acquisition of private
lands for the company to establish a cement plant in
Mangal area of Solan District was undertaken by the State
of Himachal Pradesh under the provisions of the Act. The
of
Collector had passed the award on 10.1.2008, which was
followed by another award dated 2.5.2022.
rt The dispute,
however, as emerges from the rival stands of the parties
firstly is as regards the implementation of R & R Scheme,
secondly the legality of the stand adopted by the private
respondents and lastly the role of the State Government in
the situation that has arisen.
18. The 'oustees' have not denied the acquisition of
those properties qua which they are objecting to deliver the
possession. Though, the 'oustees' have agitated the issue
of non-implementation of R & R Scheme by the Company,
but they appear to maintain different and divergent views
with regard to the extent of its non-implementation.
Respondents No. 5 to 11 and 15 to 17(in CWP Nos. 3311,
3312, 3313, 3417, 5703, 5704, 5705, 8006 and 8031 of
2022)have made a reference to the fact that they have not
been provided the plots and direct employment, which has
.
adversely affected the prospects of their future generations.
As per the stand of the Company after a negotiated
settlement a decision had been taken to pay a sum of Rs.
Eleven Lakhs to each of the affected families against all the
of
aspects of the R & R Scheme. As noticed above, the
'Oustees' which includes some of the private respondents
rt
in CWP 7163 of 2022 have filed the other set of writ
petitions being CWP Nos. 3311, 3312, 3313, 3417, 5703,
5704, 5705, 8006 and 8031 of 2022, seeking directions
against the State and the Company to implement the R & R
Scheme in its entirety. Though the 'Oustees' have
specifically admitted the fact that as a result of a
negotiated settlement between the parties, the Collector
had declared the payment of Rs. Eleven Lakhs per affected
family as a substitute for all the measures required to be
undertaken by the company under R & R Scheme,
however, they have now raised their claims to be treated in
parity with Shri Brij Lal, who according to the 'oustees' has
been paid a sum of Rs. 34 lakhs by the Company in lieu of
all his claims of resettlement and rehabilitation.
.
19. As regards the right of the 'Oustees' to get the
benefit under R & R Scheme, undeniably, their
entitlements will be subject to proof of certain prerequisites
as contemplated under the scheme. Under Clause 2.2.2 of
of
the R & R Scheme, the jurisdiction and authority has been
vested with the Deputy Commissioner of the district to
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decide any issue relating to implementation of R & R
Scheme. In such view of the matter, the 'Oustees' shall
have every right to take recourse to appropriate remedy in
accordance with law for claiming benefits under the R & R
Scheme. Moreover, this Court in exercise of jurisdiction
under Article 226 of the Constitution will not delve upon
and decide the intricate and disputed questions of facts.
20. The next question arises as to legality of the
disruption caused by oustees in taking over of possession
of acquired properties and the role of the State in such fact
situation.
21. It is clear from the stand of the Company as also
the State that the possession of acquired properties was
taken over by the Collector and a possession certificate was
also issued. It is also the fact that the award dated
.
10.1.2008 did not include the payment of compensation to
all the acquired properties, viz. certain houses, structures
and trees which had remained to be evaluated. The import
of the stand taken by the State is that the Collector was
of
supposed to take the possession on papers and it is for the
Company to take actual possession. The stand so taken by
rt
the State cannot be countenanced. The possession under
Section 16 of the Act means the actual possession and not
a mere paper formality. Reference in this behalf can be
made to the following extract from the judgment passed by
the Hon'ble Supreme Court in Balwant Narayan Bhagde
vs. M.D. Bhagwat & others, 1976 (1) SCC 700:-
"When a public notice is published at a convenient
place or near the land to be taken stating that the
Government intends to take possession of the land,
then ordinarily and generally there would be no
question of resisting or impeding the taking of
possession. Delivery or giving of possession by the
owner or the occupant of the land is not required. The
Collector can enforce the surrender of the land to
himself under section 47 of the Act if impeded in.
taking possession. On publication of the notice under
section (1) claims to compensation for all interests in
the land has to be made; be it the interest of the
owner or of a person entitled to the occupation of the
.
land. On the taking of possession of the land
under section 16 or 17 (1) it vests absolutely in the
Government free from all encumbrances. It is,
therefore, clear that taking of possession within the
meaning of section 16 or 17(1) means taking of
of
possession on the spot. It is neither a possession on
paper nor a "symbolical" possession as generally
understood in Civil Law. But the question is what is
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the mode of taking possession? The Act is silent on
the point. Unless possession is taken by the written
agreement of the party concerned the mode of taking
possession obviously would be for the authority to go
upon the land and to do some act which would
indicate that the authority has taken possession of
the land. It may be in the form of a declaration by
beat of drum or otherwise or by hanging a written
declaration on the spot that the authority has taken
possession of the land. The presence of the owner or
the occupant of the land to effectuate the taking, of
possession is not necessary. No further notice beyond
that under section 9(1) of the act: is required. When
possession has been taken, the owner or the
occupant of the land is dispossessed. Once
possession has been taken the land vests in the
Government."
22. The possession under the Act has far reaching
consequences. It is from the date of taking possession that
.
many of the implications involving payment of interest
arise under Sections 23, 28 and 34 of the Act. Viewed
from another angle, the acquisition under the Act is done
for a specific purpose and such purpose can be achieved
of
on acquiring the actual possession of the land. The very
purpose of acquisition is rendered otiose in case the actual
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possession is not delivered to the beneficiary.
23. The avoidance on part of the State to fulfill its
legal obligation of taking over the possession of acquired
properties under the Act appears either to be in ignorance
of the express provisions of law or a mere pretence for
some other purpose best known to it.
24. Section 47 of the Act reads as under:-
"47 Magistrate to enforce surrender. If the
Collector is opposed or impeded in taking possession
under this Act of any land, he shall, if a Magistrate,
enforce the surrender of the land to himself, and, if
not a Magistrate, he shall apply to a Magistrate or
(within the towns of Calcutta, Madras and Bombay)
to the Commissioner of Police and such Magistrate or
the Commissioner (as the case may be) shall enforce
the surrender of the land to the Collector."
25. In the case in hand, the Collector is none else
than the Sub Divisional Magistrate of the area and thus he
.
is fully competent to get the surrender of possession of
acquired land. There is nothing in the provisions of the Act
which may empower or vest the 'Oustees' with a right to
of
obstruct the taking of possession of the acquired
properties. Their action in doing so is completely illegal.
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The Collector is under legal obligation to get the surrender
of possession of acquired properties by exercising the
power under Section 47 of the Act.
26. The objection of some of the oustees as to
legality of entire acquisition proceedings undertaken by the
State, the same need not detain this Court any longer for
the simple reason that the issue stands already decided by
this Court vide judgment dated 23.6.2016 passed in CWP
No. 912 of 2007 titled Munshi Ram & others vs. State of
H.P. & others along with connected matters.
27. In light of above discussion, the petition (CWP
7163 of 2022 tilted M/S Ultratech Cement Ltd. Vs State of
H.P. and others is allowed. The respondent No.3 is
directed to get surrender of possession of those of acquired
properties which still are occupied by the 'Oustees' by
taking recourse to Section 47 of the Act. The entire
.
proceedings in terms of this judgment be completed by the
Collector concerned within three months from today and
report compliance to this Court.
28. CWP Nos. 3311, 3312, 3313, 3417, 5703, 5704,
of
5705, 8006 and 8031 of 2022 are disposed of with the
liberty reserved to the 'Oustees' (petitioners in said
rt
petitions) to approach Deputy Commissioner, Solan with
respect to their alleged claims under R&R Scheme and on
being approached by the 'Oustees' the Deputy
Commissioner, Solan will decide their respective claims
within six months from the date of receipt of claim(s).
29. All the petitions are accordingly disposed of so
also the pending miscellaneous applications, if any.
List for compliance on 15.3.2024.
(Satyen Vaidya)
30th November, 2023 Judge
(kck)
