TaxTMI 
TaxTMI 
2017 (12) TMI 1907
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....he respondents-writ petitioners are owners of land, admeasuring different extents, in Kammavaripally village, Puttaparthy Mandal, Ananthapuram District. A notification, under Section 11(1) of the 2013 Act, was published in Eenadu Daily dated 12.04.2016 wherein the names of the father and uncles of the respondents-writ petitioners, who were no more, are alleged to have been shown as the owners of the property. The subject land was sought to be acquired for the Handri Niva Sujala Sravanthi Project and the HNSS main canal. In the notification under Section 11(1), it is also stated that, in view of G.O.Ms. No. 16 dated 29.01.2015, the provisions of Chapters II and III of the 2013 Act were inapplicable. The persons interested in the said land were directed to submit their objections within fifteen days from the date of the notification and, as the names of the petitioners were not mentioned, they did not submit any objections to the notification. Thereafter the third respondent issued a declaration under Section 19(1) of the 2013 Act which came to be published in Sakshi Daily dated 22.07.2016. Challenging the said notifications, issued under Section 11(1) and 19(1) of the 2013 Act, the ....
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....of the petitioners is accepted; as per Section 6(2) of the 2013 Act, social impact assessment study is exempt for acquisitions made for irrigation projects, in view of Order No. J/12011/37/2011-SA-1 dated 20.12.2006; and, therefore, the plea that there was non-compliance of Sections 4, 5, 6 and 7 was incorrect. 5. On the question whether the Section 11(1) notification dated 11.04.2016, and the Section 19(1) notification dated 11.07.2016, were illegal, the Learned Single Judge held that the Section 11(1) notification showed that the subject land was sought to be acquired for a public purpose i.e., for the HNSS Main canal under the HNSS project; and as per G.O. No. 16 dated 29.01.2015 the procedure contemplated under Chapters II and III of the 2013 Act was exempt; G.O.Ms. No. 16 dated 29.01.2015 was issued pursuant to Ordinance 9 of 2014 amending the 2013 Act; the said notification exempted the authorities from certain provisions of Chapters II and III of the 2013 Act, in respect of certain projects; irrigation projects were reflected in the notification dated 11.07.2016; even if this notification is said to apply, it lapsed long prior to the date of its publication; and reference....
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....a copy of the proceedings issued by the Ministry of Environment and Forest, Delhi dated 08.05.2006; this related to involvement of the HNSS project in Kurnool District; even assuming that the circular, referred to in the counter-affidavit, related to Anantapuram District where the subject lands, sought to be acquired, are located, the circular dated 08.05.2006 gave exemption, from application of Chapters II and III, only for a period of five years from the date of issuance of the said letter; the letters, referred to in the counter-affidavit, were issued in the year 2006; even if the letter dated 08.05.2006 was taken into consideration, it would be valid for a period of five years, from the date of issuance, which expired in 2011; the impugned notification, in the instant case, was issued in April, 2016; the letter which was pressed into service to contend that social impact assessment was not necessary, and the provisions of Chapters II and III of the 2013 Act were exempted from application in cases where acquisition was for irrigation projects; and these contentions could not be accepted. The Learned Single Judge opined that the impugned notifications, in respect of acquisition o....
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....ame into force on 01.01.2014; prior thereto, the provisions of the Land Acquisition Act, 1894 were applicable which neither provided for a social impact assessment study to be conducted nor for rehabilitation and resettlement; for the first time these conditions were incorporated in the 2013 Act; the words "Law for the time being in force", as used in the proviso to Section 6(2), refers to the law applicable on the date when the enactment came into force i.e., 01.01.2014; the proviso to Section 6(2) has to be so interpreted as to mean that the law in force, as on 01.01.2014, alone would govern such acquisition; consequent upon the 2006 EIA notification coming into force on 14.09.2006, the earlier notification dated 27.01.1994 stood superseded; the savings is only to the extent of things done, or omitted to be done, before such supersession; in the present case environmental clearance, given on 08.05.2006, was the only thing done till that date i.e. 14.09.2006; it was obligatory, therefore, for the appellant to secure permission under the 2006 EIA notification; there is no evidence on record to show that the State had commenced construction, prior to the 2006 EIA notification coming....
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....r the proviso thereto, in respect of irrigation projects where the process of Environment Impact Assessment is required under the provisions of any other law for the time being in force, the provisions of the 2013 Act, relating to social impact assessment, shall not apply. If the provisions of any other law, for the time being in force, require the process of environment impact assessment, then the State is discharged of its obligation of complying with Sections 4 to 6 of the 2013 Act relating to social impact assessment. 14. As reliance is placed by the Learned Advocate-General on the 1994 EIA notification to contend that the State is exempt, in terms of the proviso to Section 6(2), from applying the provisions of the 2013 Act relating to social impact assessment, it is necessary to briefly refer to the statutory provisions under which EIA notifications are issued. Section 3 of the Environment Protection Act, 1986 (hereinafter called the "1986 Act") confers power on the Central Government to take measures to protect and improve the environment. Section 3(1) stipulates that, subject to the provisions of the 1986 Act, the Central Government shall have the power to take all such m....
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....e date of publication of the notification in the Official Gazette, to consider all the objections received against such notification, and enables it, within 365 days from the date of such publication, to impose prohibition or restriction on the location of such industries, and carrying on of any process or operation in an area. 16. In the exercise of the powers conferred by Section 3(1) and 3(2)(v) of the 1986 Act, and Rule 5(3)(d) of the 1986 Rules, the Central Government directed that, on and from the date of publication of the notification in S.O. 60(E) dated 27.01.1994 in the Official Gazette, expansion or modernization of any activity or new project, listed in Schedule I of the notification, shall be undertaken in any part of India only after prior environmental clearance is obtained from the Central Government in accordance with the procedure specified in the notification. Para-2(I) of the notification dated 27.1.1994 (as amended on 4.5.1994) details the requirement and procedure for seeking environmental clearance of projects. Para-2(II)(c) relates to hydro-power and major irrigation projects and/or their combination, including flood control, and requires the project auth....
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.... Para-4(ii) of the EIA 2006 Notification dated 14.09.2006 stipulates that all Category-A projects included in the Schedule, including expansion and modernization of the existing projects or activities, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of the Notification. 19. Para 6 of the EIA 2006 notification dated 14.09.2006 relates to the application for prior environmental clearance, and stipulates that an application seeking prior environmental clearance shall, in all cases, be made by the project proponent in the prescribed Form 1 and Supplementary Form 1A if applicable, as given in Appendix II, after the identification of the prospective sites for the project and/or activities to which the application relates. The project proponent is required to furnish, along with the application, a copy of the pre-feasibility project report, in addition to Form 1, Form 1A, and Form 1M. Para 7 prescribes four stages in the Prior Environmental Clearance process for New Projects. While Stage 1 re....
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....years is for commencement of construction of the project, and does not relate to the period of its validity. Construction of the project should have commenced within five years from the date on which environmental clearance was granted for the project, and it is not necessary that it should have been completed within the said period of five years. As the appellant had been granted environmental clearance in terms of the 1994 EIA notification dated 27.01.1994, if they had commenced construction of the project within five years from 08.05.2006, when environmental clearance was granted, they would, in view of the stipulation "except in respect of things done before such supersession" in the 2006 EIA notification dated 14.09.2006, not fall within the ambit of the 2006 EIA notification. 23. Both the EIA 1994 and the EIA 2006 notifications are statutory notifications issued by the Central Government in the exercise of the powers conferred on it by Section 3(1) and 3(2)(v) of the 1986 Act r/w. Rule 5(3)(d) of the 1986 Rules. The HNSS project, for which the subject lands are being acquired, is undoubtedly an irrigation project for which Environment Impact Assessment is required under th....
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.... more than four months had elapsed by the time the 2006 EIA notification was issued on 14.09.2006. It is evident, therefore, that if construction of the HNSS project had commenced within five years from the date on which environmental clearance was granted i.e. 08.05.2006, it would fall outside the ambit of the 2006 EIA notification, and it is not necessary that the State Government should have actually commenced construction of the HNSS project, before 14.09.2006 when the 2006 EIA notification came into force. 26. What, however, remains to be considered is whether or not construction of HNSS project commenced before 07.05.2011 (i.e. within five years from 08.05.2006), and whether the conditions, subject to which environmental clearance was granted by the Central Government, vide its letter dated 08.05.2006, have been complied with. If acquisition of the subject land falls within the scope of the HNSS project for which environmental clearance was granted by letter dated 08.05.2006, and the appellants had commenced construction, in terms of the letter dated 08.05.2006, on or before 07.05.2011, then the appellant cannot be said to have committed any illegality in acquiring the sub....
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....er dated 08.05.2006, is valid only for a period of five years and expired in the year 2011. It would not be appropriate for us to examine these factual aspects in an intra-Court appeal under Clause 15 of the Letters Patent. What course we should, therefore, adopt shall be detailed hereinafter. II. SECTION 107 OF THE 2013 ACT : ITS SCOPE: 30. Sri O. Manohar Reddy, Learned Counsel appearing on behalf of the respondent-writ petitioner, would submit that Section 107 of the 2013 Act empowers the State legislature to enact a law more beneficial to the affected families; from a reading of the provisions of the 2013 Act, it is clear that the State must provide benefits, to the persons affected under the acquisition, which are more beneficial than those provided under the environmental impact assessment law; in the proceedings, issued by the Central Government dated 08.05.2006, it is mentioned that the Rehabilitation and Resettlement package of the year 2005 would be applicable; and for lands acquired in the year 2016, the Rehabilitation and Resettlement package of the year 2005 cannot be made applicable. 31. Section 107 of the 2013 Act confers power on the State Legislature to ena....
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....2006 that the rehabilitation and resettlement package of the year 2005 would apply, the provisions of the 2013 Act, relating to rehabilitation and resettlement, would apply to land acquisition proceedings for which a preliminary notification, under Section 11(1) of the 2013 Act, has been issued on or after 01.01.2014 when the 2013 Act came into force. III. CAN THE PROVISO TO SECTION 6(2) OF 2013 ACT BE UNDERSTOOD AS DISCRIMINATING BETWEEN IRRIGATION AND OTHER PROJECTS? 34. Sri O. Manohar Reddy, Learned Counsel for the respondents - writ petitioners, would submit that the State cannot rely on the environmental clearance granted in the year 2006, for acquisition of lands in the year 2016, as affected persons would be deprived of the benefits provided under Chapters-II and III of the 2013 Act; if the argument of the State is accepted then acquisition of lands, for purposes other than irrigation, would require a higher compensation to be paid and better rehabilitation and resettlement measures to be provided, whereas affected families, whose lands are acquired for irrigation purposes, would be paid lesser compensation; and it was never the intention of Parliament to discriminate ....
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....rovisions of any other law for time being in force; in the counter-affidavit nothing has been stated regarding any other provision of law for the time being in force which requires an environment impact assessment; a copy of the environment impact assessment report has not been filed; only a copy of the environment clearance letter dated 08.05.2006 was filed, that too at the time of arguments in the Writ Petition; the counter-affidavit neither contains details nor is there any explanation regarding applicability of these proceedings in respect of the lands proposed to be acquired; though the learned Single Judge has made certain observations with regards the said plea, the same was not explained even in the Writ Appeal; on the other hand in the affidavit, filed in support of the application seeking interim stay of the order of the Learned Single Judge, the Joint Collector-cum-Special Land Acquisition Officer has extracted the order of the learned Single Judge in para 7 of the affidavit, and in para 8 it is stated that environmental impact assessment was conducted and completed by the Agricultural Finance Corporation Limited (AFC), Hyderabad; and hence the provisions of Chapter-II, ....
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....as pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter, affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pl....
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....8.05.2006, in accordance with the 1994 EIA Notification, makes the environmental clearance valid for a period of five years for commencing construction, operation and maintenance. Para 3(c) of the 1994 EIA Notification dated 27.01.1994 also stipulated that the environmental clearance, granted by the Central Government, was valid for a period of five years for commencement of construction or operation. 40. In terms of the conditions stipulated in the environmental clearance letter dated 08.05.2006, construction of the HNSS project was required to be commenced within five years therefrom i.e. on or before 07.05.2011. Further, in terms of Condition No. 6 of Part-B of the general conditions of the environmental clearance letter dated 08.05.2006, in case of change in the scope of project, the project would require a fresh appraisal. The State Government is, therefore, not only required to satisfy that they had commenced construction of the HNSS project on or before 07.05.2011, but also that the subject lands, which are now sought to be acquired for the purpose of the project, fall within the scope of the project for which environmental clearance was granted on 08.05.2006. It is only ....
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....n a particular ground and, if it is found that the said exercise of power itself is illegal, the entire notification is liable to be quashed. On the other hand the Learned Advocate General for the State of Andhra Pradesh would submit that the notification, issued under Section 11(1) of the 2013 Act, was valid as it was issued in accordance with the procedure laid down in the 2013 Act. 43. An erroneous reference is made, to G.O.Ms. No. 16 dated 29.01.2015, in the preliminary notification issued under Section 11(1) of the 2013 Act, with regards the provisions of Chapter II and III of the Act not being applicable in respect of the subject acquisition. In case the provisions of Chapter II of the 2013 Act are held applicable then, notwithstanding a reference to the contrary in the preliminary notification issued under Section 11(1) of the 2013 Act, the State Government would have been obligated to comply with these provisions. The fact, however, remains that the provisions of the 2013 Act, relating to social impact assessment, are not applicable to the subject irrigation project in view of the proviso to Section 6(2) of the 2013 Act, since a process of environment impact assessment h....
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.... been disputed; since the 2013 Act does not require a Social Impact Assessment study to be conducted for the HNSS project, the question of raising objections, on the findings of the Social Impact Assessment Report, under Section 15(1)(c) of the 2013 Act does not arise; and the petitioners cannot seek invalidation of the acquisition proceedings without pointing out how prejudice would be caused to them, if they are not allowed to raise objections under Section 15(1) of the 2013 Act. 47. The contention urged before us, that the petitioner has been denied the opportunity of putting forth his objections under Section 15 of the 2013 Act, does not merit acceptance. Chapter-IV of the 2013 Act relates to notification and acquisition, and Section 11 relates to publication of preliminary notification and power of officers thereupon. Section 11(1) requires the appropriate Government whenever it appears that a land in any area is required, or is likely to be required for any public purpose, to publish a notification to that effect along with details of the land to be acquired in rural and urban areas. Section 15 relates to hearing of objections and, under sub-section (1) thereof, any person....
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....fore us, by Sri O. Manohar Reddy, Learned Counsel for the petitioner, that the petitioner's land, and the area in which these lands are located, are not suitable for the purpose of the HNSS project. The dispute, in the present Writ proceedings, mainly relates to the failure of the appellant to comply with the requirements of Chapter-II of the 2013 Act, of a social impact assessment to be conducted. As noted hereinabove, the requirement of conducting a social impact assessment is inapplicable, since the appellants fall within the ambit of EIA 1994 Notification. As shall been detailed hereinafter, a substantial part of the HNSS project has already been completed. It would, therefore, not be open to the petitioner to now be heard to contend that his lands are not suitable for establishment of the said project. Consequently, the respondent-writ petitioners' right to submit their objections, under Section 15 of the 2013 Act, cannot be said to have deprived, nor can they have been said to have suffered prejudice thereby. VII. SHOULD COURTS AVOID AN OUTCOME WHICH MAY HAVE AN ADVERSE EFFECT ON GROWTH OF INFRASTRUCTURE OR ECONOMY OF THE STATE? 51. Learned Advocate General, for....
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....y, be exercised subject to certain self-imposed limitations, (Thansingh Nathmal v. Supdt. of Taxes AIR 1964 SC 1419), and not as a matter of course. The discretionary jurisdiction, under Article 226 of the Constitution of India, must be exercised with great caution and only in furtherance of public interest, and not merely on the making out of a legal point. Larger public interest must be kept in mind in order to decide whether intervention of the Court is called for or not (Master Marine Services Pvt. Ltd. v. Metcalfe and Hodgkinson Pvt. Ltd. (2005) 6 SCC 138; Air India Ltd. v. Cochin International Air Port Ltd. (2000) 2 SCC 617; Rashpal Malhotra v. Mrs. Saya Rajput AIR 1987 SC 2235; Council of Scientific and Industrial Research v. K.G.S. Bhatt AIR 1989 SC 1972). Even if a legal flaw might be electronically detected, this Court would not interfere save manifest injustice or unless a substantial question of public importance is involved. (Rashpal Malhotra AIR 1987 SC 2235; K.G.S. Bhatt AIR 1989 SC 1972). 54. The HNSS project, an irrigation and drinking water project constructed to cater to the parched districts of the Rayalaseema region of the State of Andhra Pradesh, is undoubt....
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....le for not bringing all relevant facts, to the notice of this Court, in the counter-affidavits filed in the Writ Petition; and initiate disciplinary proceedings against them, for such negligent acts, in accordance with law. VIII. SHOULD THE INTERIM ORDER, WHICH REMAINED IN FORCE DURING THE PENDENCY OF THE WRIT PETITION, BE MODIFIED ON ITS REMAND TO THE LEARNED SINGLE JUDGE FOR HIS CONSIDERATION AFRESH? 57. While ordering notice before admission, in W.P. No. 30383 of 2016, on 08.09.2016 the Learned Single Judge granted interim stay as prayed for i.e., stay of all further proceedings pursuant to the notification and declaration, issued under Sections 11 and 19 of the 2013 Act, in so far as the petitioners lands are concerned. As W.P. No. 30383 of 2016 was later allowed, and the preliminary notification issued under Section 11 and the declaration under Section 19 of the 2013 Act were set aside, the matter being remanded to the Learned Single Judge would, ordinarily, result in revival of the interim order which would further delay completion of the HNSS project. Should the said interim order be modified? If so, what should be the nature of the order to be passed? These questions ....
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.... necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with china economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of st....
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....t which may be caused thereby. The Court should also satisfy itself whether the public interest, in holding up the project, far outweighs the public interest in carrying it out within a reasonable time. The Court must take into account the cost involved in staying the project, and whether the public would stand to benefit by incurring such cost. (Ramniklal N. Bhutta (1997) 1 SCC 134; Raunaq International Ltd. AIR 1999 SC 393; Shiva Shakti Sugars Ltd. (2017) 7 SCC 729). 63. The adverse economic impact, including cost overruns and the cost of providing drinking water and irrigation facilities from other sources, should be borne in mind while considering the manner in which the interim order, in force during the pendency of the Writ Petition, should be moulded to safeguard the constitutional rights of individuals who have approached the Court as also to protect the larger public interest involved in ensuring early completion of the project, conceived and established in the larger public interest of providing drinking water and irrigation facilities to the parched districts of the Rayalaseema Region of Andhra Pradesh. 64. The Supreme Court, in Raunaq International Ltd. AIR 1999 S....