TaxTMI 
TaxTMI 
2018 (3) TMI 2067
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....gal, arbitrary and without jurisdiction. W.P. No. 31263 of 2016 was dismissed by the Learned Single Judge holding that the appellants-writ petitioners did not object regarding social impact assessment in both the representations/objections; the crux of the matter was that, after construction of the canal, the total land, except the building area, would become unusable for house/residential construction; they had sought compensation for the total area of Ac.2.16 cents; and there was no occasion before the Special Deputy Collector/Competent Authority, as prescribed under Section 15 of the 2013 Act, to consider and grant a personal hearing to the petitioners. Aggrieved thereby, the present appeal. 2. Before taking note of the rival submissions, urged on behalf of the appellants by Sri O. Manohar Reddy, learned counsel for the appellants, and on behalf of the respondents by the learned Advocate General for the State of Andhra Pradesh, it is necessary to note the facts in brief. The preliminary notification, under Section 11(1) of the 2013 Act, was issued on 12.04.2016 proposing to acquire the subject lands. This notification was published in Eenadu Telugu Daily on 12.04.2016. A noti....
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....der the 2013 Act; even if this Court were not to be convinced with any of the contentions, urged on behalf of the appellants, they should be given an opportunity to put forth their claim, for grant of rehabilitation and resettlement benefits, before the Land Acquisition Officer; and the respondents should be directed to comply with Sections 21 to 23 of the 2013 Act, and pass an award strictly in accordance with Section 26 thereof. Learned counsel would rely on Darshan Lal Nagpal v. Govt. (NCT of Delhi) (2012) 2 SCC 327 : 2012 (5) ALT 21.3 (DN SC); Bharat Sewak Samaj v. Lt. Governor (2012) 12 SCC 675; Surinder Singh Brar v. Union of India (2013) 1 SCC 403 : 2013 (2) ALT 6.2 (DN SC); Laxman Lal v. State of Rajasthan 2013 ALT (Rev.) 192 (SC) : (2013) 3 SCC 764; Women's Education Trust v. State of Haryana (2013) 8 SCC 99; and Hukam Chand v. State of Haryana (2013) 11 SCC 578 in this regard. 4. On the other hand, the Learned Advocate General for the State of Andhra Pradesh would submit that the petitioners are not claiming ownership over the subject lands which are sought to be acquired for the purpose of the project; there is no statement or averment, in the writ affidavit, rega....
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.... is only to stay the operation of the judgment passed in W.A. No. 933 of 2017; the law declared by the Division bench, in the said judgment, would continue to bind a co-ordinate bench unless and until it is finally reversed by the Supreme Court; since the Division bench, in its order in W.A. No. 933 of 2017 dated 29.12.2017, had set aside the order under appeal therein, and had restored W.P. No. 30383 of 2016 to file, directing the Learned Single Judge to consider the matter afresh, a similar order should be passed in this appeal also; in case this Court comes to the conclusion that the objections made by the appellant-writ petitioners fall within the ambit of clause (a) of Section 15(1), the respondents are ready and willing to deposit the compensation, for the remaining extent of Ac.2.16 cts of land, in this Court, besides depositing the amount as directed in W.A. No. 933 of 2017 dated 29.12.2017; the notice, under Section 15(1) of the 2013 Act, was served on the appellants representative Sri Babu; the fact that the notice was served on Sri Babu has not been denied in the reply affidavit; and, though a notice of the award enquiry was served on the appellants-writ petitioners, the....
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....e on 01.01.2014, families, affected by the Land Acquisition proceedings initiated on or after 01.01.2014, would still be required to be paid only the rehabilitation and resettlement package under the 2005 R & R policy of the Government of A.P. While all the provisions of the 2013 Act including the provisions relating to rehabilitation and resettlement would apply, it is only because of the proviso to Section 6(2) of the 2013 Act that the provisions of the 2013 Act, relating to social impact assessment, are not applicable with respect to irrigation projects where the process of environmental impact assessment is required under the provisions of any other law for the time being in force. Suffice it to make it clear that, notwithstanding reference in the GOI letter dated 08.05.2006 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........." 7. It is evident, therefore, that, for lands acqu....
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....tipulates five years as the period of validity of site clearance for commencement of construction. As the GOI letter dated 08.05.2006 was issued by the Central Government under the 1994 EIA notification, prior to the 2006 EIA notification coming into force on 14.09.2006, construction of the HNSS project should have commenced on or before 07.05.2011 (i.e. within the five year period stipulated in the GOI letter dated 08.05.2006). As the 2006 EIA notification supersedes the 1994 EIA notification except in respect of things done before such supersession, the environmental clearance, granted by the Government of India on 08.05.2006, is a thing done before the 2006 EIA notification came into force; and, consequently, the requirement of commencement of construction of the project is in terms of the letter of environmental clearance dated 08.05.2006. The contention that construction of the HNSS project should also have commenced before 14.09.2006 (when the 2006 EIA notification came into force) does not merit acceptance. Accepting such a submission would render the very prescription of five years for commencement of construction of the irrigation project, both under the 1994 EIA ....
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....C.C. No. 3371 of 2018 dated 05.02.2018, the Supreme Court granted stay of operation of the said judgment and order. 12. Stay of the operation of an order only means that the order, which has been stayed, would not be operative from the date of the passing of the stay order, and does not mean that the said order has been wiped out from existence. (M/s. Sree Chamundi Mopeds Ltd. (1992) 3 SCC 1 (supra); Government of A.P. v. N. Rami Reddy 2001 (1) ALT 438 : AIR 2001 A.P. 226 : 2001 (1) ALD 443). The ratio of a judgment is the reasons assigned in support thereof. When a Court of appeal stays the operation of the judgment it stays the further implementation, as between the parties, of the operative portion thereof. When a question of law is decided, its ratio cannot be said to be wiped out merely because the operation of the said order is stayed. The dicta laid down in a judgment cannot be ignored by a co-ordinate bench. (N. Rami Reddy 2001 (1) ALT 438 : AIR 2001 A.P. 226 : 2001 (1) ALD 443) (supra); K. Yella Reddy v. Registrar APAT 1996 (3) ALT 1047). The law declared in Mummaneni Venkataramudu 2018 (1) ALT 572 (supra) would continue to bind a coordinate Bench unless and until it is....
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....tter is no longer res integra in view of the decision of a Three-Judge Bench of the Apex Court in M/s. Sree Chamundi Mopeds Ltd. v. Church of SIT Association (AIR 1992 SC 1439), wherein the Apex Court has laid down the law in the following terms: "The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been dispo....
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....on of Sri O. Manohar Reddy, Learned Counsel for the appellants-writ petitioners, that, on the questions of law which have already been decided by the Division bench in the aforesaid judgment, we must take a different view. IV. SECTIONS 15(1) & 15(2) OF THE 2013 ACT: ITS SCOPE: 17. The scope of Sections 15(1) of the 2013 Act was also considered in Mummaneni Venkataramudu 2018 (1) ALT 572 (supra) wherein the Division bench opined:- "............The right to submit objections under Section 15(1) is conferred on any person interested on the land which has been notified under Section 11(1) of the 2013 Act. The objection which such a person is entitled to make are with reference to (a) the area and suitability of land proposed to be acquired; (b) justification offered for public purpose; and (c) the findings of the Social Impact Assessment Report. In the present case, as the appellant has been granted environmental clearance by the Government of India, the provisions of the 2013 Act, with respect to social impact assessment, has no application. Consequently, the question of the respondent-writ petitioner filing their objections, on the findings of the social impact assessm....
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....); as a result the Section 19(1) declaration dated 11.07.2016, and all subsequent proceedings, are vitiated and are rendered illegal; and they are all liable to be set aside. 19. As the aforesaid judgments of the Supreme Court, relied on by Sri O. Manohar Reddy, learned Counsel for the petitioners, dealt with the scope and ambit of Section 5-A of the 1894 Land Acquisition Act, whereas acquisition of the subject lands is under the 2013 Act, it is necessary to read Section 5-A of the 1894 Act in juxta-position with Section 15 of the 2013 Act. Section 5-A of the 1894 Act Section 15 of the 2013 Act (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (1) Any person interested in any land which has been notified under sub-section (1) of Section 11, as being required or likely to be required for a public purpose, may within objections, sixty days from the date of the publication of the prel....
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....ditions stipulated in Section 15(1) of the 2013 Act; whether the objections raised by the appellant-writ petitioners, in their letter dated 23.06.2016, relates to the area of the land proposed to be acquired falling within the ambit of Section 15(1)(a) of the 2013 Act; and whether, in the facts and circumstances of the present case, failure to give the appellants writ petitioners an oral hearing, would render the declaration under Section 19(1) of the 2013 Act invalid? 21. Before dealing with these questions it is useful to examine the scope of Section 15(1) and (2) of the 2013 Act (which is similar to Section 5-A(1) and (2) of the 1894 Act). The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the 1894 Act (Radhey Shyam v. State of U.P. (2011) 5 SCC 553; Bharat Sewak Samaj (2012) 12 SCC 675 (supra) which is similar to Sections 11(1), 15 and 19(1) of the 2013 Act. It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious it is. Hearing him, before depriving him of his property, is both reasonable and pre-emp....
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.....e. audi alteram partem. (Women's Education Trust (2013) 8 SCC 99 (supra); Nandeshwar Prasad v. State of U.P., AIR 1964 SC 1217 Munshi Singh v. Union of India (1973) 2 SCC 337, Narayan Govind Gavate v. State of Maharashtra (1977) I SCC 133, Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, Union of India v. Mukesh Hans 2004 (2) An.W.R. 521 (SC) : (2004) 8 SCC 14, Union of India v. Krishan Lal Arneja (2004) 8 SCC 453, Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai 2005 (6) ALT 40 (SC) : (2005) 7 SCC 627, Essco Fobs (P) Ltd. v. State of Haryana 2009 (1) ALT 18 (SC) : 2009 ALT (Rev.) 103 (SC) : (2009) 2 SCC 377, Babu Ram v. State of Haryana 2010 ALT (Rev.) 183 (SC) : (2009) 10 SCC 115, Anand Singh v. State of UP. (2010) 11 SCC 2422, Dev Sharon v. State of UP. 2011 ALT (Rev.) 280 (SC) : (2011) 4 SCC 769, Radhey Shyam (2011) 5 SCC 553 (supra), Raghbir Singh Sehrawat v. State of Haryana 2012 ALT (Rev.) 219 (SC) : (2012) 1 SCC 792, Kamal Trading (P) Ltd. W.B. 2012 ALT (Rev.) 151 (SC) : (2012) 2 SCC 25 (supra), Surinder Singh Brar (2013) 1 SCC 403 : 2013 (2) ALT 6.2 (DN SC) (supra) and Usha Stud and Agricultural Farms (P) Ltd. v. State of Haryana 2013 ALT (Rev.) 203 (SC)....
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....scribes 60 days as the period within which the objections should be submitted. Unlike Section 5-A(1) of the 1894 Act which does not specify matters relating to which objections can be submitted, Section 15(1) of the 2013 Act stipulates that the objections can be submitted with regards (a) the area and suitability of the land proposed to be acquired; (b) the justification offered for the "public purpose"; and (c) the findings of the social impact assessment report. It is with respect to these three matters alone, can objections be filed under Section 15(1) of the 2013 Act. 27. Before examining whether the objections submitted by the appellant-writ petitioners fall within anyone or more of clauses (a) to (c) of Section 15(1), the scope of Section 15(2) necessitates examination. Sub-section (2) of Section 5-A of the 1894 Act (and Section 15(2) of the 2013 Act) makes it obligatory on the Collector to give the objector an opportunity of being heard. After hearing all objections, and making further inquiry, he is required to make a report to the appropriate Government containing his recommendation on the objections. The legislature has made complete provision for the persons intereste....
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...., and objectively consider his plea against the acquisition of land. Only thereafter, should he make recommendations, supported by brief reasons, as to why the particular piece of land should or should not be acquired, and whether or not the plea put forward by the objector merits acceptance. (Raghbir Singh Sehrawat 2012 ALT (Rev.) 219 (SC) : (2012) 1 SCC 792 (supra); Women's Education Trust (2013) 8 SCC 99 (supra)). 30. The hearing required to be given, under Section 5-A(2) of the 1894 Act (or Section 15(2) of the 2013 Act), to a person who is sought to be deprived of his land and who has filed objections under Section 5-A(1) of the 1894 Act (or Section 15(1) of the 2013 Act), must be effective and not an empty formality. The Collector, who is enjoined with the task of hearing the objector, has the freedom of making further enquiry as he may think necessary. In either eventuality, he has to make a report in respect of the land notified under Section 4(1) of the 1894 Act (or Section 11(1) of the 2013 Act) or make different reports in respect of different parcels of such land to the appropriate Government, containing his recommendations on the objections, and submit the same ....
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....ffered prejudice on their not being afforded the opportunity of being heard under Section 15(2) of the 2013 Act (similar to Section 5-A(2) of the 1894 Act). As noted hereinabove, the objection, which can be made to the preliminary notification issued under Section 11(1) of the 2013 Act, is confined to clauses (a) to (c) of Section 15(1). Acquisition of land, in the present case, is for the construction of the HNSS project, and its canals etc, which are undoubtedly for a "public purpose". Neither have the appellants-writ petitioners contended otherwise, nor is it their case that construction of an irrigation project is not for a public purpose. Clause (b) of Section 15(1) of the 2013 Act is, therefore, not applicable to the case on hand. As has been referred to earlier, the proviso to Section 6(2) exempts social impact assessment from being conducted, where the process of environmental impact assessment is required under the provisions of any other law in force. As held by the Division Bench, in Mummaneni Venkataramudu 2018 (1) ALT 572 (supra), environmental clearance is required to be obtained for irrigation projects in terms of the provisions of the Environmental Protection Act, a....
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....tor had, in his report dated 11.07.2016, referred to the objections approved by him for preparation of the draft declaration proposals under Section 19(1) of the 2013 Act. 34. In his reply affidavit, filed in the Writ Appeal on 04.02.2018, the first appellant stated that he had different extents of land admeasuring a total extent of Ac.2.37 cts; after demarcation of the property into house plots, he had sold them in favour of various persons who wanted to settle down at Puttaparty; in the said area, they had constructed a multi-storied building within an extent of Ac.0.21 cts wherein he and others were residing in the apartments; the proposed canal was sought to be excavated at a distance of 10 metres from the existing building; in respect of the land situated in Sy. No. 367/1 and Sy. No. 340 of Kammavaripally village, the Land Acquisition Officer had awarded Rs. 6,45,22,315/- for an extent of Ac.3.98 cts, as the said plots were approved layouts; the appellant writ-petitioners lands are also located in Kammavaripally, and the lands, for which an award was passed earlier, are located at a distance of 500 metres from the land belonging to the first appellant and others; a total ex....
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.... of the publication of the notification; and the period of 30 days should be counted from the last day of publication of the notification under Section 4 of the Act. As the obligation to provide an opportunity of hearing to the objector, under Section 15(2) of the 2013 Act, would arise only if he had filed his objections within 60 days from the date of publication of the preliminary notification, the respondents cannot be faulted for not considering his objections, and in not affording him an opportunity of a personal hearing, for it is only a person interested in the land, who has filed his objections under Section 15(1), who is entitled to an opportunity of a personal hearing under Section 15(2) of the 2013 Act. 37. Even if the first appellant-writ petitioner had been afforded such an opportunity, the hearing would be confined only to the objections filed by him, as Section 15(2) requires only the objector to be given an opportunity of being heard, and not any person interested in the land. Consequently it is only in respect of the objections filed by him could the first appellants-writ petitioners have claimed an opportunity of oral hearing to satisfy the Land Acquisition Off....
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....amined afresh in the Writ Petition, after parties on either side are permitted to file additional affidavits placing/rebutting these facts. We consider it appropriate, therefore, to set aside the order of the Learned Single Judge, and restore the Writ Petition to file. The appellants are permitted to file an additional counter-affidavit, furnishing details regarding the HNSS project, for which environmental clearance was granted vide letter dated 08.05.2006, to establish that (i) the subject lands, which are sought to be acquired, fall within the scope of the project for which environmental clearance was granted vide letter dated 08.05.2006; and (ii) they commenced construction of the HNSS project on or before 07.05.2011. After the petitioners are given the opportunity to file their reply affidavits, the Learned Single Judge shall examine the aforesaid questions in accordance with law. The Principal Secretary, Revenue (Land Acquisition) Department, shall, at the earliest, also identify those officials who were responsible for not bringing all relevant facts, to the notice of this Court, in the counter-affidavits filed in the Writ Petition; and initiate disciplinary proceed....
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....e 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. The Supreme Court, in Raunaq International Ltd., observed that the petitioner, asking for interim orders, in appropriate cases should be asked to provide security for any increase in cost as a result of such delay or any damages suffered in consequence of an interim order; otherwise public detriment may outweigh public benefit in granting such interim orders; and stay order or injunction order, if issued, must be moulded to provide for restitution. As held by the Supreme Court, in Ramniklal N. Bhutta, there are many ways of affording appropriate relief and redressing a wrong. It would even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement, that the perso....
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....he purpose of the said project, on mere technicalities. While we must ensure that the appellants-writ petitioners are not denied their constitutional right under Article 300-A of the Constitution of India, and are not deprived of their property save by authority of law, we should also not hinder early completion of a project, of significant public importance, merely because some Government officials have not been diligent in placing all necessary facts before the Court. 44. As the cost overruns, in staying execution of the project, would far outweigh the benefit which the petitioners would be entitled even in case the Writ Petition were to be allowed later, we consider it appropriate to pass the following interim order in the restored W.P. No. 31263 of 2016 bearing in mind that the only objection which the appellant-writ petitioners had taken to the acquisition of land, vide their letter dated 23.06.2016, was that the remaining extent of Ac.2.16 cts of land would also become unusable and should also be acquired. 45. We consider it appropriate, in such circumstances, to direct the respondents to (1) determine the compensation payable to the appellants-writ petitioners under th....