Chandulal Mepabhai Jasani and Others vs State of Gujarat and Others

G.B. Shah, J.—Being aggrieved by and dissatisfied with the Notification issued under Sec. 4 and the Notification published under Sec. 6 of the Land Acquisition Act, 1894 (''the Act'' for short) on 28th February, 2012 and 2nd March, 2012 respectively, the petitioners have preferred the present petition under Art. 226 of the Constitution of India seeking prayer to quash and set aside the aforesaid Notifications. Rule. Learned Assistant Government Pleader Mr. Patel and learned Counsel Mr. B.D. Karia waive service on behalf respective respondents.

Learned Counsel Mr. Mehul S. Shah for the petitioners has submitted that the petitioners are agriculturists and owners of land situated at Villages Sadgavan, Nimbhora and Ubhad of Taluka Nizar, District Tapi and they have developed the land and made it fertile by investing huge amount. The respondents intended to acquire 309 acres of land of above villages for the purpose of rehabilitation and resettlement of the affected persons of Maharashtra State for the purpose of Sardar Sarovar Narmada Yojna. Section 4 Notification was published on 28th February, 2012, and thereafter, Notice was published on 2nd March, 2012 without following the procedure prescribed u/s 5A of the Act by invoking urgency clause. Thereafter, the Land Acquisition Officer issued Notice as envisaged under Sec. 9(3)(4) of the Act, and thereafter, the petition was filed. The petitioners have also clarified that during the pendency of the petition, award was also declared and the petitioners have taken the amount under objection so as to avoid issue of limitation for filing reference before the District Court.

2.1. The learned Counsel for the petitioners vehemently submitted that it is shocking affair of the State Government of forcibly acquiring the land of agriculturists of Gujarat to give it to the agriculturists of Maharashtra State. In fact, the respondents can very well pay compensation to agriculturists of Maharashtra State for the land acquired for Narmada Project or the State of Gujarat may give land belonging to the State or Panchayat of concerned village. But suddenly, without following any procedure under the law, the land of the petitioners have been forcibly acquired and it is not a rule of law but rule of arbitrariness, high-handedness followed by the respondents which is required to be deprecated and more particularly, the said acquisition, prima facie, appears biased and cannot be termed for public purpose. The Government has no power to deprive the land owners of their land except by strictly following the procedure prescribed by law. The main submissions of the learned Counsel for the petitioners are that Sec. 5A of the Act confers a valuable right on the person interested in any land, which has been notified under Sec. 4 as being needed for a public purpose. By this right the owner/ person interested may put forth his objections not only in respect of public purpose, but also the suitability of the acquisition in respect of his land. The objector gets an opportunity under Sec. 5A of the Act to persuade the Collector that his land is not suitable for the purpose for which the acquisition is being made or the availability of other suitable land for that purpose. There is no justification in bypassing the provisions of Sec. 5A of the Act and curtailing this right provided under the said Section and the ground of urgency is nothing, but an eyewash and violation of Arts. 14 and 21 of the Constitution of India. The respondents authorities have curtailed the procedure prescribed under Sec. 5A of the Act only on the ground of urgency in acquisition. It is apparent that the purpose of rehabilitation cannot be termed as so urgent as to curtail the procedure prescribed under Sec. 5A. Such a purpose cannot be termed as urgent as envisaged under Sec. 17 of the Act. He further submitted that invocation of urgency provision can be justified only if there exists the real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. He has placed reliance on the recent decision of the Hon''ble Supreme Court in the case of Darshan Lal Nagpal (dead) by L.Rs. Vs. Government of NCT of Delhi and Others, , in which the Apex Court has quashed and set aside the acquisition proceedings on the ground that urgency provisions is wrongly invoked by the authority. On this point, the learned Counsel for the petitioners has also placed reliance on the judgment of Division Bench of this Court in the case of Natwarlal Jerambhai Patel Vs. State of Gujarat and Others, and another judgment in the case of Balwantrai Chunilal Bhatt and Others Vs. State of Gujarat and Others, .

Learned Counsel for the respondent No. 3 has drawn attention of this Court to affidavit-in-reply filed by them and submitted that Sardar Sarovar Punarvasvat Agency (''S.S.P.A.'' for short) was constituted on 5th December, 1992 to fulfil the following functions:

(A) Resettlement and rehabilitation aspects of Sardar Sarovar Project and acquisition and distribution of land for resettlement and rehabilitation.

(B) Implementation for environmental protection measures, and

(C) Media related aspects of rehabilitation and environment.

3.1. Learned Counsel for the respondent No. 3 then submitted that the Hon''ble Supreme Court in its order in W.P. No. 319 of 1994 in the case of Narmada Bachao Andolan Vs. Union of India and Others, has given inter alia following directions:

While issuing directions and disposing of this case, two conditions have to be kept in mind, (i) the completion of project at the earliest and (ii) ensuring compliance with conditions on which clearance of the project was given including completion of relief and rehabilitation work and taking of ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Government thereby protecting the rights under Art. 21 of the Constitution. Keeping these principles in view, we issue the following directions:

(1) Construction of the dam will continue as per the Award of the Tribunal.

(2) As the Relief and Rehabilitation Subgroup has cleared the construction up to 90 metres, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation Subgroup. The Relief and Rehabilitation Subgroup will give clearance of further construction after consulting the three Grievances Redressal Authorities.

(3) The Environment Subgroup under the Secretary, Ministry of Environment and Forests, Government of India will consider and give, at each stage of the construction of the dam, environment clearance before further construction beyond 90 metres can be undertaken.

(4) The permission to raise the dam height beyond 90 metres will be given by the Narmada Control Authority, from time to time, after it obtains the abovementioned clearances from the Relief and Rehabilitation Subgroup and the Environment Subgroup.

(5) The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness in the work of identification of land, acquisition of suitable land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct the States of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by the N.C.A. or the Review Committee or the Grievances Redressal Authorities.

(6) Even though there has been substantial compliance with the conditions imposed under the environment clearance the N.C.A. and the Environment Subgroup will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment.

(7) N.C.A. will within four weeks from today draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms of the Action Plan so prepared by the N.C.A. and in the event of any dispute or difficulty arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of the N.C.A. with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the N.C.A.

(8) The Review Committee shall meet whenever required to do so in the event of there being any unresolved dispute on an issue which is before the N.C.A. In any event the Review Committee shall meet at least once in three months so as to oversee the progress of construction of the dam and implementation of the R. & R. programmes.

If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned.

(9) The Grievances Redressal Authorities will be at liberty, in case the need arises, to issue appropriate directions to the respective States for due implementation of the R. & R. programmes and in case of non-implementation of its directions, the G.R. As will be at liberty to approach the Review Committee for appropriate orders.

(10) Every endeavour shall be made to see that the project is completed as expeditiously as possible.

3.2. Learned Counsel for the respondent submitted that pursuant to the order dated 18th October, 2000 of the Hon''ble Supreme Court, N.C.A. in its 31st Meeting approved the action plan for completion of Sardar Sarovar Dam as under:

As per the above Action Plan framed by N.C.A., the project is already behind schedule by 6 years and 9 months.

3.3. The learned Counsel Mr. Karia further submitted that as proposed in the meeting of Narmada Control Authority (''N.C.A.'' for short) held on 28th January, 2010, the consultation with Grievances Redressal Authority (''G.R.A.'' for short)-Gujarat was completed by the Committee formed by Resettlement & Rehabilitation (''R. & R.'' for short) Subgroup in the month of April, 2010. Similarly, consultation with G.R.A.-M.P. has been completed during January, 2010. The final consultation of R. & R. Subgroup with G.R.A.-M.H. is pending because G.R.A. Maharashtra submitted its opinion to N.C.A. on 10th June, 2011 and directed Government of Maharashtra to complete the R. & R. works of all those who are coming under E.L. 121 metres i.e. give them full package to which they are entitled by the end of 31st December, 2011. He further submitted that in the meeting of N.C.A. held on 13th September, 2011, it was decided that remaining R. & R. work of Maharashtra should be completed by December, 2011.

3.4. The learned Counsel for the respondent also submitted that the Additional Chief Secretary (R. & R.), Revenue & Forest Department, Government of Maharashtra by letter dated 3rd September, 2011 informed the Government of Gujarat that Maharashtra has got only 142 Ha. of land available at present for distribution against the requirement of 1, 078 Ha. It was further stated that though vigorous efforts are being made, it is very difficult to obtain additional land around R. & R. site since most of the land either belongs to tribal community or is covered under the Forest Conservation Act. So it was requested to make available maximum possible land to the Government of Maharashtra preferably within the radius of eight kms. from rehabilitation sites at Talida (M.H.R. & R. Site). It was further informed that Chairman, Grievance Redressal Authority, Maharashtra vide consultation report dated 10-6-2011 submitted to N.C.A. and directed to Government of Maharashtra to complete R. & R. works of all those who are coming under Dam height E.L. 121.92 metres i.e. give them full package to which they are entitled, by the end of 31st December, 2011.

3.5. The learned Counsel for the respondent further submitted that thereafter, letter dated 27-9-2011 was received from the office of the Collector, Nandurbar, Maharashtra addressed to Managing Director, Sardar Sarovar Narmada Nigam Limited with a request to make agricultural land available for Project Affected Families (''P.A.Fs.'' for short) of Maharashtra at Taluka Nizar in Gujarat State; It was requested in the letter to provide approximate 200 Ha. of land at Taluka Nizar in Gujarat State at the earliest so as to enable the said office to check out the land showing programme to the P.A.Fs. He further submitted that thereafter, letter dated 8-10-2011 from the office of the Collector, Nandurbar addressed to the respondent No. 3 with a request to make available immediately 50 Ha. of land and thereafter remaining land should be made available within one month in Nizar Taluka near Maharashtra boarder so as to complete the work of R. & R. before 31st December, 2011 as per the expectation of the N.C.A. with respect to the height of 121.92 metres.

3.6. The learned Counsel for the respondent further submitted that by letter dated 28/30th December, 2011, Minutes of 21st Meeting of the Task Force of N.C.A. on Resettlement and Rehabilitation concerning Sardar Sarovar Project which was held on 30-11-2011 was received by the respondent No. 3. On the basis of the above meeting, State of Gujarat was informed to give concurrence to allot one Ha. of additional land to major sons of P.A.Fs. of Maharashtra State as per policy after obtaining list of P.A.Fs. from Collector, Nandurbar. In continuation of the same, in the 22nd Meeting of the Task Force of N.C.A. was held on 84-2012 at Rajkot wherein a decision was taken to the effect that the Government of Gujarat may explore the possibility to purchase/arrange private agricultural land for the allotment to eligible major sons of P.A.Fs. of Maharashtra.

3.7. The learned Counsel for the respondent has vehemently submitted that if the chronological events of the entire acquisition proceeding be considered as narrated below, it can be easily said that the respondents have rightly and bona fide exercised the urgency clause as envisaged under Sec. 17 of the Act for public purpose:

We have considered the above-referred rival submissions made by the learned Counsel for the parties in light of the documentary evidence placed on the record. The question to be decided is, from the date of sanction of proposal by the State Government for acquiring private agricultural land, acquisition and distribution of the land has been done in a manner which established need of urgency as described in Sec. 17 of the Act. According to the respondents, the invocation of urgency clause was very much required so as to facilitate further construction of Narmada Dam and the present height of 121.92 metres is to be increased up to 138.68 metres. As per Government of Maharashtra revised R. & R. Policy, major sons/major unmarried daughters were entitled to 1 Ha. of agricultural land. The Government of Maharashtra has also filed affidavit to that effect before the Hon''ble Supreme Court in Writ Petition (Civil) No. 328 of 2002. As mentioned in it, the Government of Maharashtra has to allot 1 Ha. of addition land to major sons/major unmarried daughters G.R.A. of State of Maharashtra was also directed to complete allotment of additional 1 Ha. of land to such P.A.Fs. before December, 2011. The Government of Maharashtra, therefore, requested the Government of Gujarat to make available minimum 200 Ha. land near Taloda Taluka of Maharashtra. In the circumstances, urgency clause was invoked for acquisition of private land near boarder of both the States in Nizar Taluka, District Tapi and said land was identified as belonging to the persons who had purchased land by Registered sale-deed and as such, the petitioners have purchased the said land in the recent years for investment purpose and majority of them are staying at Surat as per the addresses given in Sale-deeds. Thus, it is clear that the petitioners are not deprived of their livelihood by acquisition of the land in question as submitted by learned Counsel for the respondents and those averments have not been controverted by filing rejoinder affidavit by the petitioners.

4.1. The respondents have also contended that no Government lands which are suitable for cultivation are available in any of the three villages and whatever land is available is gauchar land, which cannot be allotted for agricultural purpose. As per the submission of learned Counsel for the respondents, in light of the aforesaid facts and circumstances of the case, there was no option with the respondents but to allot the additional 1 Ha. land to the affected families of Maharashtra near boarder to implement and fulfil the conditions of N.W.D.P. award.

4.2. Before proceeding further on the issue involved in the present petition, if we peruse the recent decision of the Hon''ble Supreme Court in the case of Darshan Lal Nagpal (dead) by L.Rs. Vs. Government of NCT of Delhi and Others, it is true that the Apex Court has quashed and set aside the acquisition proceeding on the ground that urgency provision was wrongly invoked by the authority. In the said decision, Sec. 4. Notification and declaration under Sec. 6 of that Act were respectively issued on 13-10-2009 and 9-11-2009. Time lag of five years was there between proposal for acquisition of land for establishment of electricity sub-station and issue of Notification invoking urgency clause had taken place. The proposal for acquisition of land was mooted prior to August, 2004 and issue of Notification invoking urgency provision had taken place subsequently as referred above. So the Apex Court has observed as above. The ratio laid down by the Apex Court in the above case is not applicable to the facts of the present case.

Under the above distinct circumstances, the condition precedent to the application of the extraordinary power i.e. invocation of urgency clause has been fulfilled and the power is not exercised mala fide. From the chronology of events narrated above, it is seen that from the date of sanction of proposal i.e. 11th January, 2012 by the State Government for acquiring private agricultural land, the acquisition and distribution of the said land has been done in such a manner that the possession of the land is given to 54 persons out of 91 persons which were identified by the Collector, Nandurbar, State of Maharashtra as per its letter dated 30th April, 2012 and this established heed of urgency as described in Sec. 17 of the Act. We do not find that the action of the authority concerned of acquisition referred above is a colourable exercise of powers. In our view, the land acquisition proceedings; in the present case are bona fide and are for public purpose. Thus, we are not in agreement with the submissions of the learned Counsel for the petitioners that without there being any urgency the respondent authorities have, with ulterior motive, selected certain class of people for acquisition of land and to deprive them of their livelihood. Under the circumstances, the present petition deserves to be dismissed.

5.1. It is the admitted position that during the pendency of this petition, award was also declared and the petitioners have taken the amount under objection, and hence, alternative prayer to provide other land to the affected persons of Maharashtra State or to allot the same kind of fertile land to the petitioners in lieu of their land also deserves to be rejected. The concerned Court where the Reference has been filed, the hearing of the same shall be given preference as far as possible. The present petition is hereby dismissed. Rule is discharged with no order as to costs.