Suryavanshi Vikas Samiti Bayal vs State Of Himachal Pradesh & Others
2024 Latest Caselaw 5167 HP

Himachal Pradesh High Court

Suryavanshi Vikas Samiti Bayal vs State Of Himachal Pradesh & Others on 7 May, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.2751 of 2022 Date of Decision: 07.05.2024

.

_______________________________________________________

Suryavanshi Vikas Samiti Bayal .......Petitioner Versus

State of Himachal Pradesh & others ... Respondents _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1

For the Petitioner: Mr. Ram Murti Bisht, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals,

with Mr. Ravi Chauhan, Deputy Advocate

General, for respondent No.1 to 3/State. Mr. Neel Kamal Sharma, Advocate, for respondent No.4.

____________________________________________________

Sandeep Sharma, Judge(oral):

By way of instant petition filed under Article 226 of the

Constitution of India, petitioner has prayed for following reliefs:-

"(i) The directions may be issued to the respondents for preparing the list of PAF afresh by including all 165 land owners/co-owners as shown in the revenue record on

the date of acquisition of their land as Project Affected Families in their individual capacity and not based on family head recorded in family register.

(ii) The directions may be issued for revising the list of BPL families annually after ascertaining present status of all families and consequent thereto lists i.e. families of entire Project Affected Area and Project Affected Families (PAF) may be ordered to be revised accordingly

Whether the reporters of the local papers may be allowed to see the judgment?

in order to ensure equitable distribution amongst similarly situated families .

(iii) The direction may be issued for disbursing the amount

.

of LADF contribution to all Project Affected Families

including left out land owners along with those whose families came in existence after 2004 under both heads as PAA and PAF on account of losing their source of

livelihood.

(iv) That the provision of the policy guidelines to the extent whereby criteria of identification of affected families on the basis of entry in Pariwar Register of Panchayat as it

existed in 2004 is provided, the same may be ordered to be declared as unreasonable, arbitrary and discriminatory and as such is liable to be set aside.

(v)

That direction may be issued to the respondents to

disburse the second part of 50% of LADF contribution exclusively amongst Families of all 165 land owners whose land was acquired for setting of RHEP in terms of

provision of sub para (ii) of the policy guidelines.

(vi) That direction may be issued for disbursing the arrears of due and admissible amount of LADF contribution

w.e.f. 2014-15 onwards of each financial year to the families of 82 left out beneficiaries (land owners) under

both heads as PAA and PAF.

(vi) That direction may be issued to calculate and disburse

the share of arrears of Project Affected Families of Gram Panchayat Gadej in ratio of 48.75% land acquired of this Panchayat w.e.f. 2014-2015 onwards.

(viii) That directions may be issued to disburse the LADF contribution for the years 2017-18, 2018-19 and 2019-20 along with interest accrued thereon as the same is unduly retained for sufficiently long period by the respondent No.3 without any justifiable reason.

2. Precisely, the grouse of the petitioner as has been

highlighted in the petition and further canvassed by Mr. Ram Murti

.

Bisht, learned counsel for the petitioner, is that many legible

persons/families/land losers, whose land came to be utilized for the

construction of project, namely "Rampur Hydro Electric Project',

have not been included in the list of project affected families

prepared by Deputy Commissioner, Kullu, District Kullu, Himachal

Pradesh, as a result thereof, many ineligible persons/families, have

become beneficiary of the Local Area Development fund. As per

the petitioner, about 83 families, whose land was utilized for the

construction of project, are not being granted benefit in terms of

Policy dated 26.05.2015, which was specifically framed for

utilization of Local Area Development fund deposited by the

Director Energy, Government of Himachal Pradesh, respondent

No.2.

3. Pursuant to the notices issued in the instant

proceedings, respondent Nos. 1 to 4 have filed their replies.

4. Conjoint reading of the pleadings adduced on record

by the respective parties, reveals that in the year, 2004, Rampur

Hydro Electric Project (RHEP) in Satluj Basin situate in village

Bayal of Tehsil Nirmand, District Kullu, came to be allotted to the

Satluj Jal Vidyut Nigam Limited (hereinafter referred to as the

SJVNL), i.e. joint venture of Union of India and State of Himachal

Pradesh. In the year, 2005, acquisition proceedings for acquiring

.

the land of about 165 private owners of two Gram Panchayats of

Nirmand Tehsil namely, Gadej and Bahwa, came to be initiated,

whereby about 188.17 bighas of land came to be acquired for

development of the project, as detailed hereinabove. With a view to

compensate the damage occurred to the families, whose land came

to be acquired in terms of Hydro Power Policy, notified by

Government of Himachal Pradesh, project promoter after

commissioning of the project was required to contribute annually an

amount of 1% sale of additional free power towards Local Area

Development Fund during the lifespan of the project.

5. As per the revised guidelines, circulated vide

Notification dated 26.5.2015 (Annexure P-5), additional 1% free

power after commissioning of Hydro Power Project was agreed to

be earmarked for Local Area Development fund to provide a regular

stream of revenue for income generation on a sustained and

continuous bases. As per aforesaid Notification, revenue generated

out of sale of 1% additional free power was to deposit in Local Area

Development fund, which is/was to be further disbursed amongst

the beneficiary families in the following proportion in line with the

Notification dated 11.07.2013:-

"(i) 50% of the total amount of LADF to be divided to all families in Project Affected Area(PAA) equally subject to BPL families getting higher amount as per the policy

.

notified on 05.10.2011.

(ii) Balance 50% of the total amount of LADF is/was to be divided between the families in the ratio of the land acquired in their respective Panchayat subject to BPL

families getting higher amount as per the policy notified on 05.10.2011."

6. At present, there is no dispute, if any, with regard to

disbursement of 50% of total amount of Local Area Development

fund, agreed to be divided to all the families in Project Affected

families, rather dispute raised in the instant petition, is with regard

to disbursement of balance of 50% of the total amount, which is/

was agreed to be divided in the ratio of the land acquired in the

respective Panchayats.

7. Though, in terms of aforesaid provision and notification

dated 26.05.2015, Deputy Commissioner, Kullu, prepared list of

project affected families, but allegedly 82 families, whose land also

came to be acquired for the construction of project in question,

were not named in the list of project affected families, as a result

thereof, they are deprived of the benefits agreed to be given to the

project affected families on the plea that they do not reside in

project affected area. Some of the names have been refused to be

included for the reason that they are not the head of the family and

some of them have solemnized marriage in an area, which does

not fall in the project affected area.

.

8. Learned counsel for the petitioner, while making this

Court peruse scheme, vehemently argued that once, it is not in

dispute that land stands utilized for construction of project, as a

result thereof, families of the area concerned had become landless,

mere factum of marriage of member of family in some other village

cannot be a ground to deny benefit, if any, under Local Area

Development fund.

9. In nutshell, case of the petitioner is that list of project

affected area prepared by authority concerned is not based upon

the correct record. Learned counsel for the petitioner submitted that

had authority concerned bothered to verify from the records that

whose land was actually acquired for construction of power project,

petitioner would not have been compelled to come to this Court in

the instant proceedings.

10. While refuting aforesaid submission made by learned

counsel for the petitioner, Mr. B.C.Verma, learned Additional

Advocate General, submitted that the present petition is not

maintainable, rather appropriate remedy for Redressal of

grievance, if any, of the petitioner is to file representation to Sub

Divisional Magistrate, Anni. To substantiate his aforesaid

submission, learned Additional Advocate General invited attention

of this Court to the reply filed by respondent No.1, wherein it has

.

been stated that Local Area Development fund Guidelines dated

05.10.2011(Annexure P-3) for management of Local Area

Development fund has been modified/superseded as per the

standard guidelines for management of Local Area Development

fund, as incorporated in Chapter-V of Swaran Jayanti Energy

Policy, 2021 notified on 20.01.2022 (Annexure R-1).

11. At this stage, it would be profitable to reproduce

Clause 5.8.2.3 of the policy herein below:-

"5.8.2.3:- A Mechanism to address the grievance arising out of disbursement and management of LADF is as follows:-

The grievances would be addressed by the Sub Divisional Magistrate of the concerned area who would be designated as Grievance Officer. Any person who is

aggrieved with the decision of the Grievance Officer can

prefer an appeal before District Magistrate/Additional Magistrate of the concerned District, who will be designated as Redressal Officer. Any further appeal shall

be with the Additional Chief Secretary/Principal Secretary (MPP & Power) to the Government of Himachal Pradesh, whose decision shall be final and binding."

12. Having perused aforesaid provision contained in

modified guidelines, this Court finds that grievance arising

out of disbursement and management of Local Area

Development fund, at first instance is to be addressed by Sub

Divisional Magistrate of the concerned area, who otherwise in

terms of the scheme would be designated as Grievance Officer.

.

Being aggrieved and dissatisfied with the order passed by Sub

Divisional Magistrate, appeal can be filed before District

Magistrate/Additional Magistrate of the concerned District, who in

terms of the scheme, shall be designated as Redressal officer.

Aforesaid order passed by District Magistrate/ Additional District

Magistrate can be further laid by way of an appeal before Additional

Chief Secretary/Principal Secretary (MPP & Power) to the

Government of Himachal Pradesh and his decision shall be final

and binding.

13. Though, learned counsel for the petitioner, while

making this Court peruse aforesaid notification, vehemently argued

that provision contained in the same cannot be made applicable

retrospectively, rather same can be applied prospectively,

however, having perused policy of 2021 placed on record, in its

entirety, this Court finds that same has been circulated in super

session of earlier guidelines dated 5.10.2011, wherein some new

provisions have been also made.

14. No doubt, there is nothing in the aforesaid policy

suggestive of the fact that dispute, if any, pending prior to issuance

of aforesaid notification shall be considered and decided in terms of

policy of 2015, but once it is not in dispute that dispute raised prior

to promulgation of policy of 2021 is still pending adjudication before

.

the authority concerned, same can be otherwise decided in terms

of policy in vogue i.e. Policy of 2021. However, authority

concerned, while doing the needful is also required to take into

consideration the provisions contained in policy of 2015.

15. At this stage, it would be apt to take note of para No.15

of the reply filed by respondent No.3, which reads as under:-

"15. The contents of this para is admitted up to the extent that the land of 165 owners was acquired for the construc-

tion of the Rampur Hydro Electric Project and 124 owners

were enlisted as Project Affected Families (PAF's) and from these 124 owners, 83 owners has been identified as the be- neficiaries for disbursement of benefits of 1% additional free power strictly in pursuance to clause no. 8.2 of the Revised Guidelines for management of Local Area Development Funds (LADF) in respect of Hydro Electric Projects issued

by the Govt. of Himachal Pradesh, Department of MPP & Power vide Notification No. MPP- F(10)-24/2011 dated 05.10.2011. (Annexure R-1). However, the list notified by the replying Respondent was re-verified vide letter no.

DC/KLU/LADF/CWP 2751/ 2022-23/467-68 dated 24.06.2022 from the Block Development Officer Nirmand and Sub Divi-

sional Magistrate Nirmand to ascertain the claims made by the Petitioner Society in the present Petition. The Sub Divi- sional Magistrate Nirmand vide letter no. 610 dated 27.07.2022 in response have reported that out of 41 nos.

land owners, two land owners i.e. Sr. No. 62 and 113 are eli- gible for the benefit of 1% Additional Free Power in pur- suance to clause no. 8.2 of the Revised Guidelines for man- agement of Local Area Development Funds (LADF) dated 05.10.2011 and the same will be re-notified by replying res- pondent at the earliest. (Annexure R-5). Therefore, the aver- ments made by the Petitioner Society regarding the remain- ing 39 families out of 41 families in the present petition are vehemently denied.".

16. Perusal of aforesaid para No.15 of the reply filed by

respondent No.3, clearly reveals that land of 165 owners was

acquired for the construction of the Rampur Hydro Electric Project

and 124 owners were enlisted as Project Affected Families.

.

However, out of 124 owners, 83 owners have been identified as

the beneficiaries for disbursement of benefits of 1% additional free

power strictly in pursuance to clause No.8.2 of the Revised

Guidelines for management of Local Area Development Funds in

respect of Hydro Electric Projects, issued by Government of

Himachal Pradesh dated 5.10.2011 (Annexure R-1).

17. Since, it is not in dispute that policy of 2021 was not in

existence when right to have benefit of 1% additional fee power had

accrued in favour of the petitioner. Learned counsel for the

petitioner is right in contending that provision contained in

subsequent policy of 2021 otherwise could not be taken into

consideration by the authority, while re-verifying the factum of

displacement of the family on account of acquisition of their land,

rather to ascertain the correct picture, authorities, while referring to

the policy of 2015 ought to have verified from the record of that

relevant time whether person, whose land was acquired for

construction of project, have been included in the category of

project affected families or project affected areas and thereafter

benefit in terms of previous policy of 2015 could have been

granted in their favour.

18. Though afore reply filed by respondent No.3, suggests

that on account of the dispute raised by some of the affected

.

families, list notified by Committee was re-verified vide letter

24.06.2022 from the Block Development Officer, Nirmand and the

Sub Divisional Magistrate, Nirmand vide letter dated 27.07.2022

reported that out of 41 numbers of land owners, two land owners

i.e. Sr. No.62 and 113 are eligible for the benefit of 1% additional

free power in pursuance to Clause No.8.2 of the Revised

Guidelines for management of Local Area Development Funds

dated 5.10.2011 and same shall be re-notified by the respondents

at the earliest.

19. It is quite apparent from the aforesaid stand taken by

respondent No.3 that even at the time of re-verification, authority

concerned applied parameters of Revised Policy of 2011, whereas

case of the petitioner was required to be considered in terms of

policy framed in 2015. Needless say, in the policy of 2011, there

was no provision for grant of benefit of 1% additional free power to

the land loser. However, in the policy of 2015, specific provision

came to be made for grant of benefit of 1% additional free power to

other category i.e. land loser. Hence, names of the families, who

became land losers on account of acquisition of their land, are also

required to be included in the list prepared for grant of benefit under

Local Area Development Fund.

.

20. Though, in the instant petition, petitioner prayed to

issue direction to the respondents to grant them their shares in

Local Area Development Fund, but till the time, question with

regard to entitlement of the petitioner for getting afore benefit is not

adjudicated by the competent authority, no such direction can be

passed, rather in such like situation, direction is required to be

issued to Deputy Commissioner to prepare list of the project

affected families/land loser and project affected area afresh on the

basis of revenue record of the relevant time.

21. Consequently, in view of the above, this Court at this

stage without commenting upon the merit of the case, deems it fit to

dispose of the present petition, with a direction to Deputy

Commissioner, Kullu, District Kullu, H.P., to get the list of project

affected families/land loser and project affected areas, prepared

afresh through revenue agencies and thereafter benefit of 1%

additional free power for management of Local Area Development

Fund, be apportioned in favour of the beneficiaries, as per their

entitlement. Ordered accordingly.

22. Needles to say, authority concerned while doing the

needful in terms of instant order, shall afford an opportunity of being

heard to the petitioner as well as other stakeholders and pass

detailed speaking order. Liberty is reserved to the petitioner to file

.

appropriate proceedings in appropriate court of law qua the

surviving grievance, if any. Pending applications, if any, also stand

disposed of.

(Sandeep Sharma), Judge May 07, 2024

(shankar)