WP(C)/466/2015 of SRI PHURPA TSERING Vs THE STATE OF A.P. on 23 December 2015

Conclusion

WP(C) 466/2015BEFOREHON'BLE JUSTICE (MRS) DR. INDIRA SHAHHeard Mr. L. Tenzin, learned counsel for the petitioners and Mr. K. Ete, learnedAdditionat Advocate General assisted by Ms. L. Hage, Learned Government counselTor State respondent Nos. 1, 2 & 4 and Mr. K Jini, learned standing counsel, Lana Management, for respondent No. 3 as well as Mr. N. Ratan, learned CGSC, for respondent Nos. 5, 6, 7 in WP (C) 466 (AP) 2015.Atso heard Mr. D. Baruah, learned counsel for the petitioner and Mr. K. Ete, learned Additionat Advocate General assisted by Ms. L. Hage, Learned Government counsel Tor State respondent Nos. 1 & 2 and Mr. K Jini, Learned standing counsel, Land Management, for respondent No. 3 as well as Mr. N. Ratan, Ltearnea CGSC, forrespondent Nos. 4, 5 & 6 in WP (C) 252 (AP) 2015.

3. Tne writ petitioners in potn the writ petitions nave assailed the impugned Notification No. LM-20/2005(Pt)/2232 dated 09.01.2015 issued by whicn the Cn1ef Secretary, Government of Arunachal Pradesh, on behalf of the Government of Arunachal Pradesh has determined the base rate of multiplication factor of marketvalue purportedly under First Schedule of the Right to Fair Compensation and Transparency in Land Acquisition, Renabitlitation and Resettlement Act 2013 (Act of2013, in snort), for the purpose of determination of compensation for acquisition of Land in respect of urban and rurat area Under Section 26(2) read witn FirstScnedule of the Act of 2013, the appropriate Government 1S empowered to notify|a Tactor petween one to two i1n case of rural areas pased on the distance of theproject Trom the urban area. The impugned Notification, the respondent No 2 tnougn has notified various multiplication factors based on radiat daistance from thurban areas, in respect of Defence related projects, an uniform multiplication—Tactor of one has been directed to be applicable.

4. Facts in prief are as ToOLlows:Tne Government of India for the purpose of creating infrastructure and trainingarea Tor combat support Units of Non-Accretionat Forces decided to acquire 562.47 acres of land belonging to petitioner in WP (C) 252 (AP) of 2015 and the sanct10N was accordingly accorded for sucn acquisition. Steps for acquisition of Landwere initiated by issuance of a preliminary Notification dated 16.12.2013 underSection 4(1) and Section 1/7(4) of the Land Acquisition Act 1894. Subsequent threto, a Notification under Section 6(1) of tne Act was issued declaring tnat theLand in question was acquired for public purpose.

5. Tne petitioners in WP No. 466 (AP) 2015 had preferred writ petition No.69(AP) 2010, challenging the acquisition of 4.34 acres of land allotted to the Commandant, SSB, Dirang wnhicn was disposed of directing the Deputy Commissioner Oo make spot verification to ascertain the ownersnip of land and to make paymentof adequate compensation. Tne Deputy Commissioner, Tawang after spot verification, recommended 35,14,304.00/- as land compensation payable to the petitioners.The said amount of compensation was subsequently enhanced to 53,41,736/- by adding 12 % interest and 30 % solarium under the Land Acquisition Act.

6. Wnile the aforementioned acquisition proceedings under Land AcquisitionAct 1894, continued, the Government of India, ministry of Rurat Development, Department of Land Resources issued a Notification dated 19.12.2013 whereby the Actoft 2013 with effect from 01.01.7014 came into force 7TSection 24 of the Act of 2013 may be quoted here:“24.....,.Land acquisition process under Act No. 1 of 1894 shall be deemed to nae lapsed in certain cases.- (1) Notwithstanding anything contained in tnis Act,in any case of Land acquisition proceedings initiated unger the Land AcquisitionAct, 1894 (1 of 1894).- (a) Where no award under Section 11 of the said Land Acquisition Act has been made, tnen, all provisions of tnis Act relating to the determination of compensation shall apply; or

(bp) Where an award under said Section 1l nas been made, then sucn proceedings sall continue under the provisions of the said tand Acquisition Act, as if the sa1q Act nas not been repealed.(2) Notwithstanding anything contained in sub-Section (10, in case of Land Acqulsition proceedings initiated under tne Land Acquisition Act, 1894 (1 of 1894), wnere an award under the said Section 11 nas been made five years or more prior to tne commencement of this Act but the physical possession of the land nas not been taken or the compensation nas not been paid the said proceedings shall be deemea to nave Lapsed and the appropriate Government, if it so chooses, snall init1ate the proceedings of sucn Land acquisition afresn in accordance with the prov1S10nsS of thnis Ac Provided that wnere an award nas been made and compensation in respect ofT a majority of land noldings nas not been deposited in the account of the beneiciaries, tnen, att beneficiaries specified in the notification for acquisitionunder Section 4 of the said Land Acquisition Act, shall be entitled to compensat10n in accordance with the provisions of tnis Act.

o.Thus, as per Section 24(1) (a) of the Act, 1f no award under Section llof tne Act of 1894 nas been made, in respect of any land acquisition proceedingsunder the Act of 1894, then in that case, att the Provisions of the Act of 2013relating to determination of compensation shall apply. However, if tne Award unqger Section ll has alreaay been made, prior to coming into effect of the Act of2013, then, in that case, the provisions of the Act of 1894 shall be applicable.

QO.In WP (C) 252 (AP) 2015, the award was made by tne Deputy Commissioner-cum-Cotlector on 12.02.2014, therefore, the pleaded case of petitioner is that tne provisions of Section 24(1) (a) of the Act of 2013 becomes applicable and consequently, the determination of compensation ought to have been done under the prOv1sions of the Act of 2013.

10 In WP (C) 466 (AP) 2015, the compensation of 35,14,304/- was recommended and vide Letter dated 09.05.2013, it was enhanced to 53,41,736/- . The awardeqd amount not being paid, contempt case was filed which was disposed of on 25.092013 directing tne SSB Authorities to deposit the compensation amount within 2 months. The SSB Authorities by filing a Misc application dated 18.11.2013 sougntTor 3 months time to comply with the order dated 29.05.2013, whicn was allowed.Meanwhile, tne Act of 2013 came into effect on 01.01.2014. In the month of March2014, the SSB Authorities deposited the awarded amount of 53,41,736/-.|

11. In potn the case althougn the award was made, but, no payment of the awaraed sum was made. The petitioner in Writ Petition No. 252 (AP) 2015, filed anapplication in terms of Section 18 of the Act of 1894, seeking a reference to theCourt Tor determination of compensation, anda the Deputy Commissioner, referredtne matter to the Court of the Additional District Judqge, East Siang District, asignat. Tne respondent Nos. 4, 5 & 6 in the Writ Petition No. 252 (AP) 2015 also field a writ petition challenging the award dated 12.02.2014 on the ground that tne compensation payable to the petitioner was not determined in terms witn tne Act of 2013. Tnis Court in Writ Petition No. 292 (AP) 2014, while issuing notlce also directed to prepare a revised estimate for acquisition of 562.4/ acres oT Land in terms with the Act of 2013.

1) Pursuant thereto, tne Government of Arunacnat Pradesn, Department of Lanaq Management issued tne Notification dated 29.09.2014, whereby in exercise of te powers under Sub-Section (1) and Rule, of Section 26 read with the First Schedule to the Act of 2013, nad determined the multiplication factor of 2 in respectof tne land of the petitioner in WP (C) 252 (AP) 2015, considering the fact tnat land of the petitioner is situated in the Locality of Sigar which 1S a rural area under Mebo Sub-Division in the District of East Slang and is above 20 Km from Pasignat Township.

13 Section 26 of the Act of 2013, stipulates as to now the market value ofthe land is to be determined by the collector, Section 26(2) 1s relevant here wn1cn says that market value calculated as per Sub-Section (10) of Section 26 1s to be multiplied by a factor to be specified in the First Schedule.Section 26 of the Act of 2013 1S quoted as under:“26. Determination of market value of Land by collector.- (1) Tne collector shattL adopt the following criteria in assessing and determining the market value ofthe land, namely:-(a)Tne market value, if any, specified in the Indian Stamp Act, 1899 (2 of1899) for the registration of sale dqeeds or agreements to sell, as the case maybe, in the area, where the land 1s situated: or(D)Tne average sale price for similar type of land situated in the nearestVillage or nearest vicinity area; or(CcConsented amount of compensation as agreed upon under sub-section (2) ofsection 2 in case of acquisition of lands for private companies or for public private partnership projects.(2)The market value calculated as per sub-Section (10 shall be multiplied by a factor to be specified in the First Schedule.”

14 The First Schedule to the Act of 2013 stipulates the minimum compensation package to be given to the Land owners. Seriat Nos. 1, 2 & 3 of First Scneduleare relevant for the purpose of the present disputed which 1s quoted nereunder:

COMPENSATION FOR LAND OWNERS

Tne following components shalt constitute the minimum compensation package to begiven to those wnose Land 1S acquired and to tenants referred to in clause (Cc)of section 3 in a proportion to be decided by the appropriate Government.

Serial Component of compensation Manner of determination|

Date of adete

number package in respect of Land of value rminationoft valu acquired under the Act

(1)

(2) (3)(4)

1. Market value of Land To ve daetermined asProvided under Section 26.

2DFactor by which the market 1.00 (one) to 2.00(two) based onValue 1s to be multiplied in the distance of project from urbanThe case of rural areas area, as may be notified by the app-Ropriate Government.

3. Factor by which the market 1 (Qne).Value 1s to be multiplied intne case of urpan areas.

15. Thus, as per seriat 2 of tne Schedule I, the factors by which market value of tne Land is to be multiplied in the case of rural area 1s one(1l) to two(2based on the distance of the project Trom the Urban areas as may be notified bythe appropriate Government. The appropriate Government nas been delegated withthe power to notify the multiplication factor in rurat areas by taking into cons1deration only the distance of the project from the urban Areas.

16 Mr. Baruah, tlearned counsel for the petitioner nas submitted that in pusuant to Notification dated 29.09.2014 whereby, the multiplication factor of 2 1n respect of land of the petitioner was determined, the Cnief Secretary to the Government of Arunacnal Pradesh issued a Note dated 30.09.2014, whereby the CnieTf Secretary expressed concern on the fixation of multiplication factor at 2 vidNotification dated 29.09.2014 on the ground tnat it shall nave a Nigher financlal implication and would nave a serious impact on tne Land acquisition for the Trans Arunachal Highway as well as Green Field Airport and other future projects.(Annexure-B in WP (C) 252 (AP) 2015). The Cnief Minister, Arunachat Pradesh alsOo agreed with suggestion of tne Cnief Secretary. It 1S submitted by the learnedcounsel that Chief Secretary as well as tne Cnief Minister did not take into conSideration tnat the only relevant consideration for fixing the multiplication factor was distance of the project Trom the urban area.

1/.It 1s furtner submitted that on 20.12.2014 the Cnief Minister, the ChiefSecretary and the Commissioner (Land Management) had a meeting witn the GOC, Tezpur and in the said meeting, witnout any basis whatsoever, it was decided thatTor atl land acquisition of Indian Army in Arunachal Pradgesn a uniform factor 1one) shall be made applicable irrespective of whether the land was in rural areaor urban area. The State of Arunacnat Pradesh has adopted the Orissa Model witnout any justification. It transpires from tne communications dated 08.01.2015 anqd 09.01.2015 (annexure K & L) that tne Respondent Army Authorities had requesteTor negotiation of the multiplication factor and consequently, the impugned Not1fication dated 09.01.2015 was issued by the Chief Secretary, whereby for ruralareas, the multiplication factor was adopted as adopted by tne Government of Or1ssa and for all Defence related projects an uniform multiplication factor l1(onewas Tixed (Annexure-M)

18. Relying on the case of Life Insurance Corporation of India & Others Vs.Retired LIC Officers Association & Otners, (2008) 3 SCC 321, 1S Submitted by theLearned counsel for the petitioner that a delegated power of delegates 1S very.restricted and it nas to act witnin the Tour corners of the statute. Citing thecase of Smt. S. R. Venkataraman Vs. Union of India & Another (19/79) 2 SCC 491, ne counset for the petitioner submits that if a public body takes into account matters whicn are extraneous, it would amount to gross abuse of the powers conferreq upon that public authorities.In Life Insurance Corporation of India and Others (Supra) it was held in Para 28as unader“28..... Contention of Mr. Patwalia that the Chairman of the Corporation havingpower even to Tix the cut-off dates different purposes, the Jurisdiction exercised by him to ao so for payment of gratuity, whicn has a direct nexus with the revised pay of scale cannot be accepted. Once he fixes a cut-off-date for the purpose of giving effect to tne agreement vis-a-vis the payment of arrears in termsthereof, he cannot exercise Turther jurisdiction in respect of a matter whnicn 1not controlled by Cnapter IV put 1s controlled by other provisions of statutes|and parliamentary Acts governing the field. A delegate must exercise its powerswithin the four corners of tne statute. Tne power of a sub-delegate 1S more restricted. A delegate cannot act in violation of a statute. A sub-delegate cannot exercise any power wnicn is not meant to be conferred upon him by a reason of statutory provisions. It must conform not only to the provisions of the regulationsand the Act but also other parliamentary Acts.19 In this case the decision to fix a multiplication factor as l1(one) in rspect to Defence related projects 1S based upon financial consideration, implications in future projects and not on tne consideration of distance of the projectTrom tne Urban area. In the cited case of Smti. S .R. Venkataraman (Supra) it was opserved:“T....a.. LIF people wno nave to exercise a public duty by exercising their discetion take into account matters whicn the Courts consider not to be proper for tne guidance of their discretion, then in tne eye of the Law they nave to exerciseq tnelir discretion. |

“O...... We are 1n agreement witn this view, It 1S equally true that there willbe an error of fact when a public body 1s prompted by a mistaken belief in the eXistence of a non-existing fact or circumstances. Tnis 1S so clearly unreasonable that wnat 1S done under such a mistaken belief might almost be said to have been done in bad faitn; and in actual experience, and as things go, these may wellpe saiaq to run into one anotner’.

20) It 1s further urged by the counsel for the petitioner that the impugnedNotification is contrary to the provisions of Act of 2013, 106 of the Act of 2013 wnich empowers only the Central Government to amend or alter any of the ScneduLes to the Act. Section 106 being relevant 1s quoted herein below:

“106 Power to amend Schedule. - (1) The Central Government may, by notification,amend or alter any of the Scnedqutles to this Act, without in anyway reducing tcompensation or diluting the provisions of tnis Act relating to compensation orrehnapilitation and resettlement

(2) A copy of every notification proposed to be issued under sub-section (1), snallt pe laid in draft before eacn House of Parliament, wnile it 1S in session, fra total period of thirty days whicn may be comprised in one session or in twoor more successive sessions, and if, before the expiry of tne session immediately Tollowing tne session or the successive sessions aforesaid, bpotn Houses agreein disapproving the issue of the notification or botn Houses are in making any Modification in the notification, the notification shatl not be 1ssued or as thecase may be, shall be issued only in such modified form as may be agreed upon bybotn tne House of parliament.”

Thus, the State Government or the appropriate Government as the case may be, Nnae diluted the provisions of the Act relating to compensation or rehabilitation ana resettlement.|

Al.Section 10/7 of tne Act empowers the State Legislature to enact any Law nicn 1S more beneficial to the affectea family thereby conferring hnigher compenation under the Act of 2013 but, there 1S no provision whereby State Governmentcan reduce the compensation.

D2.Respondent No. 1, 2 & 3 nave not filed their affidavit-in-opposition. Tne Respondent Nos. 4, 5 & 6 in their affidavit in opposition nave contended tnatque to urgency requirement of Lana to tne Army, the Government of Arunachal Pradesh mignt nave deemed it proper to apply an uniform multiplication factor of one(1) for att Defence related projects.

23. Mr, K. Ete, Learned Additionat Advocate General nas submitted that the State of Arunachal Pragesn and its vast area is strategically located bordering Cnina and nignly important for defence of tne country. Tne authority concerned considaering the importance necessity and financial implications nave fixed the unTorm multiplication factor as per the power conferred upon them by the Statute.

24aTne Statute empowers the State Government to f1x any figure of multiplication factor in petween 1 to 2. T~Tne autnorities concerned nave not violated orxceeded the powers conferred upon then by fixing the multiplication factor in the case of rural areas as l(one).

25. The Act of 2013 has conferred various duties on appropriate Government wnite taking steps for acquiring a particular land viz, preparation of social impact assessment stuay (Section-4), public hearing for social impact assessment study (Section-6) appraisal of Social impact assessment report (Section-/7) examintion of the proposal for land acquisition and the social impact assessment report (Section-8), publication of preliminary Notification (Section-1l1l) Publicatioof tne declaration (Secion-19) etc. Thus, it transpires tnat the appropriate government taking into consideration all social impact has to notify the multiplica tion factor in respect of rural areas by taking into consideration the distanceof tne respective project from the urban area. The appropriate government nas totake such steps for each and every acquisition separately. Tne Act does not conceive of naving universal multiplication factor.

20. Here in this case, tne respondent autnorities have picked and choose oneof the many models adopted py the other States in India without taking into conSlidaeration the distance of projects from the urban area. Tne Government by thempugned notification nas just adopted the Orissa Model and then has universallyTixed a particular factor. Tne mandate of the act requires that the appropriateGovernment before fixing the multiplication factor in respect to eacn acquisition proceeding should take into consideration tne aistance of the respective project from the urban area so that the people affected by such acquisitions in ruralareas are not given Lesser price than the people paid in urban areas.

Di.The scope and ambit of the First Schedule of the Act of 2013 has been dealt witn by tne Bombay High Court in the case of Panjabrao Vs. The State of Manarasntra & Ors. Reported in MANU/MH/0419/2015, Para 29, 31 may be quoted as under

“29.....71Ne basic reason which seems to be considered for providing nigner multplier factor even up to two for lands situated in rural area sougnt to be acquired for the project 1S dependence of tne people on sucn land for their survival and tivelinood, coupled with low market price of sucn remotely Located land, as Comparead to land situated in urban area. A fair balance appears to nave been acneved by making a provision of multiplication of the market value by the factor to be notified by the appropriate Government considering the distance of the Landunder acquisition in rural area from urban area, so as to provide for infrastructural needs and sustainability of agriculture and rurat livelihood. For tnis reason, entry No. 2 in the First Scnedule provides for higher multiplier factor inrespect of Lands sougnt to be acquired from rural area cased on their distance|Trom urban area. Tnerefore, as the distance of Land sougnt to be acquired from rural area increases from that of urban area, the multiplier factor 1S required tOo be increased suitably. It 1S seen that tnere was no sucn analogous provision egarding multiplier in the old Act 1.e. Act of 1894. Similarly, 1t needs to be mentioned here that Section 30 of the Act of 2013 makes a provision for awardingsolatium @ 100 % of the total compensation whnicn 1s required to be paid. Tne Acof 1894 was providing for solatium only @ 30 % on the market value of the Land.m“31......,.,It 1S well settled tnat a statute 1S to be read as a wnole and everyLause of a statute nas to pe constructed with reference to the context and otnerclauses of the Act. Ordinarily, the intention of the Legislature 1S wnat it states to be its intention by the words employed in the statute. The Act of 2013 asseen Trom the provisions thereof, gives very high weightage to the provisions relating to payment of compensation. Even it makes provision for penalty for contravention of the provisions of the said Act relation to payment of compensationor renabilitation or resettlement. Section 85 of the said Act prescribes penaltyby providing that if any person contravenes any of the provisions of the Act reLating to payment of compensation etc, ne shall be Liable to punisnment for sixmontns which may extend to 3 years or with fine or with botn. If tne entire scheme of tne Act of 2013 1S considered then it becomes crystal clear that tne saidAct 1S a social welfare Legislation enacted to benefit the Land owners in the event of acquisition of their land by the State. It 1S not a statute dealing witnTiscalt matter or economic policy of the State such as hiking tax Liability. AS uch the provisions of the Act of 2-013 deserve liberal construction in favour oftne subject. The Act of 2013 makes provision for minimum quantum of compensation payable to land nolders and simultaneously it provides for various safeguardsso that tactics. It 15S well settled that wnile construing a welfare statute, thCourt 1S required to give such statute wildest operation whicn its language permits. In the matter of Executive Engineer Southern Electricity Supply Company ofOrissa Ltd. And anotner vs. Shri Seetaram Rice Mills reported in MANU/SC/1334/2

Oll: (2012) 2 SCC 108, it 1S hela that the legislative history and objects are 1mportant a1lds in constructing provisions of a statute. Similarly, the statementof objects and reasons are also considered to be an internal aid white interpreting statute as laid down by the Honourable Supreme Court in Devacnand Builders anda Contractors vs. Union of India and others reported in 92012) 1 SCC 201.”

20. By a Tixed multiplier for all Land in rural area acquired for defence 15total non-application of mind while exercising the discretion provided in FirstSchedule the Act of 2013. Policy guideline to exercise discretion for fixing muLtiplier as provided py the First Scnedule is the distance of Land under acquisltion tocated in rural area from the urban area. Therefore, the appropriate Government ougnt to nave undertaken the exercise of calculating the aistance of fartnest rural area from urban area and thereafter, exercise of fixing of appropriatemultiplier ranging from maximum 2 Tor the Lands situated at remotest rural areaSs should have been undertaken. The respondent authorities nave not examined at tL tne daistance of land situated in tne rural area as well as its remoteness frm urpan ared.

29. In view of aforesaid discussion tne impugned Notification dated 09.01.2015 1s set aside. The respondent authorities snallt determine the multiplier factr of the tana on the distance of the project from the urban area.

30. Tnese writ petitions are accordingly atlowed and disposed of.