Allowed

Ravi Subbarao, v. The State of Andhra Pradesh

Andhra Pradesh HC24 Aug 2021WP/11333/2020

Case brief

AI extract

What is this about?

This Single Judge Writ Petition challenged the rejection of Rehabilitation and Resettlement (R&R) benefits to petitioners, land owners in Kukunoor Village, on the ground of them being "non-residents." The Court held that major family members are independent families under the Act. The rejection without recording reasons was set aside as violating natural justice. The Respondent was directed to re-

What did the court decide?

Impugned order of rejection set aside; Respondent directed to re-examine entitlement and pass a reasoned order within three months.

Ravi Subbarao, Vs The State of Andhra Pradesh — Land Acquisition | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No.11333 OF 2020

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ORDER :

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This writ petition is filed under Article 226 of the Constitution of India claiming relief against the same respondents to declare the rejection of Rehabilitation and Resettlement package to the petitioners on the ground of Non-Residents, as illegal and arbitrary, and against the principles laid down under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short ―the Act 30 of 2013) and consequently direct the respondents to accord the scheme of Rehabilitation and Resettlement package to the petitioners as affected under the Polavaram Project at Kukunoor Village.

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The petitioners are the owners of the land in Kukunoor Village, the same was acquired for Polavaram project. The Government formulated scheme called as Rehabilitation and Resettlement Package (for short ―RR package‖) for those who are affected in any land acquisition, as per the guidelines and the Act 30 of 2013. The said scheme is extended to all those who are resident of Kukunoor village and other villages which are affected due to the land acquisition in the Polavaram Irrigation Project and similarly the petitioners are also affected in the said project along with other residents of Kukunoor village. Respondent No.5 herein has released the list of such affected families and the names of the petitioners who are shown from Serial Nos.283 to 287, and in the column of ― remarks after field verification ‖ it is shown as ― non-resident rejected ‖. The scheme is meant for those who are actually affected in the village due to the land acquisition and dislocation from the

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village and the petitioners are eligible for the said scheme. The petitioners are the permanent residents of Kukunoor village holding household supply card, paying property tax to the local Government besides possessing Aadhar Card, Voter Id and the petitioners submitted relevant documents to respondent No.3, but without considering the documentary evidence placed on record by the petitioners, the claim for rehabilitation and resettlement was rejected to the petitioners, such act of respondent No.3 is illegal, arbitrary and violative of principles of natural justice and provisions of Act 30 of 2013.

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During hearing, learned counsel for the petitioners reiterated the contentions while drawing the attention of this Court to the definition of ―family‖ under clause (m) of Section 3 of the Act 30 of 2013, as such the petitioners are adult members of either gender with or without spouse or children or dependents shall be considered as a separate family for the purpose of the Act 30 of 2013, thereby they are entitled to claim benefits of RR package. He has also drawn the attention of this Court to Section 15 of the Act 30 of 2013 to contend that the authorities are required to hear objections from any person interested in any land which has been notified under subsection (1) of Section 11 of the Act 30 of 2013, but no such objections were called for and considered by respondent No.3 as required under Section 15 of the Act 30 of 2013, thereby committed an error in rejecting the claim of the petitioner and requested to set aside the order of rejection and direct the respondent No.3 to extend the benefits of rehabilitation and resettlement of the project to the petitioners.

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Respondent No.6/Tahsildar filed counter affidavit, denying material allegations, inter alia , contending that, the petitioners earlier resided in D.No.2-117, Kukunoor Village and Mandal, West Godavari District and at the time of field enquiry of R&R Grievances held by the field staff of Tahsildar‘s office, Kukunoor in the month of December, 2019 and January, 2020, since the door was locked and the petitioners were not available for enquiry even after repeated field visits by the enquiry team. Further, the burden of proof lies on the petitioners that they are eligible for rehabilitation and resettlement package in accordance with Act 30 of 2013.

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It is further submitted that, the writ petitioners were not available for field enquiry held in December, 2019 and January, 2020. The details of enquiry held by the Tahsildar, Kukunoor are available in the online website maintained for R&R Grievances and it is open to the petitioners to access the online data to view their status of the grievance petitions. However, the petitioners may file appeal before the R & R Officer and Project Officer, I.T.D.A., K.R Puram – the first Appellate Authority and the Project Administrator, PIP, Rajamahendravaram – second appellate authority against the rejection orders issued by the Tahsildar, Kukunoor and the R&R Officer respectively. Hence, the writ petition is not maintainable on the ground that the petitioners did not avail the appellate remedy provided under the Act and filing a writ petition is nothing but abuse of process of law and on this ground also, respondents sought to dismiss the writ petition and finally requested to dismiss the writ petition.

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Learned Assistant Government Pleader for Land Acquisition contended that the petitioners are not residents of Kukunoor Village, which is a submergible area under the Polavaram Project to claim benefit of RR package. When the petitioners are not residents of D.No.2-117 of Kukunoor Village during enumeration, they are not entitled to claim benefits of the Act 30 of 2013. Apart from that the Government of Andhra Pradesh, Water Resources (R&R) Department issued clarification for extending RR scheme in Memo.No.450483/R&R-A2/2017-1, dated 18.05.2017 that as per Section 3 (c) (i) of the Act 30 of 2013 ―affected family‖ includes a family whose land or other immovable property has been acquired and the affected family can be declared as Project Affected Family (for short ―PAF‖) even though the family is not doing agriculture and not depending on agriculture for their livelihood and not residing in the affected area. As per Section 16 (2) of the Act, the Administrator shall based on the survey and census under section (1), prepare a draft Rehabilitation and Resettlement Scheme, as prescribed which shall include particulars of the Rehabilitation and Resettlement entitlements of each land owner and landless whose livelihood is primarily dependent on the land being acquired and where resettlement of affected families is involved. In view of the said provision the head of the family (land owner) in affected area only can be treated as PAF, his wife, major sons and major daughters cannot be treated as separate PAF. Therefore, the petitioners are not entitled to claim benefits of RR scheme and requested to dismiss the petition.

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It is the case of the petitioners that they are residents of Kukunoor Village and they are major members of the family, thereby they are also entitled to claim benefit of R&R package and the list of

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beneficiaries is published by Respondent No.5 and the names of the petitioners are shown from Serial Nos.283 to 287. The benefits of the scheme were rejected to the petitioners on the ground that they are non-residents.

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Considering rival contentions, perusing the material available on record, the point that arises for consideration is:

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“Whether the petitioners being the major members of affected family are entitled to claim benefit of Rehabilitation and Resettlement scheme in terms of Act 30 of 2013?”

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P O I N T :

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There is no dispute that the petitioners are major members of the family. But whether they are members of the affected family is to be determined while deciding their entitlement to claim benefits of the scheme.

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Section 3 (c) defined the word ―affected family‖, which is as

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follows:

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Section 3 (c) – ―affected family‖ includes—

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(i) a family whose land or other immovable property has been acquired;

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(ii) a family which does not own any land but a member or members of such family may be agricultural labourers, tenants including any form of tenancy or holding of usufruct right, sharecroppers or artisans or who may be working in the affected area for three years prior to the acquisition of the land, whose primary source of livelihood stand affected by the acquisition of land;

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(iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of their forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) due to acquisition of land;

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(iv) family whose primary source of livelihood for three years prior to the acquisition of the land is dependent on forests or water bodies and includes gatherers of forest produce, hunters, fisher folk and boatmen and such livelihood is affected due to acquisition of land;

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(v) a member of the family who has been assigned land by the State Government or the Central Government under any of its schemes and such land is under acquisition;

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(vi) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land;‖

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For the purpose of extending benefit, the definition of family under clause (m) of Section 3 of the Act 30 of 2013 must necessarily be adverted. The word family is defined under clause (m) of Section 3 of the Act 30 of 2013, which is as follows:

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―(m) ―family‖ includes a person, his or her spouse, minor children,

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minor brothers and minor sisters dependent on him:

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Provided that widows, divorcees and women deserted by families shall be considered separate families.

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Explanation.—An adult of either gender with or without spouse or children or dependents shall be considered as a separate family for the purposes of this Act‖

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The word ―family‖ as defined includes only persons and their spouses, including minor children, minor brothers and minor sisters. Thus, it excludes major members of the family as they are constituted as independent family for the purpose of claiming benefits under the Act in terms of explanation to clause (m) of Section 3 of the Act 30 of 2013. The petitioners being majors having obtained Aadhar card, household supply card, voter identity card claiming to be residents of same village were denied the benefits of scheme. But the reason for denial is the clarification issued by the Government of Andhra Pradesh, Water Resources (R&R) Department for extending RR scheme in Memo.No.450483/R&R-A2/2017-1, dated 18.05.2017. According to the clarification, ―affected family‖ includes a family whose land or other immovable property has been acquired. In view of this provision, the family can be declared as PAF

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due to acquisition of land even minimum extent is not indicated. But this clarification is contrary to the explanation to clause (m) of Section 3 of the Act 30 of 2013. But their claim was not rejected on the ground that the petitioners cannot be treated as family for the purpose of extending benefits, but rejected on the ground that they non-residents of submergible area of the village due Polavaram project.

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When the petitioners are the owners of the land or the land of the petitioners is acquired by the respondents, petitioners being major members of the same family shall be treated as separate family in view of explanation of clause (m) of Section 3 of the Act 30 of 2013 for extending benefits. Therefore, con-joint reading of definition of family under Section 3 (c) and (m) of the Act 30 of 2013, it is clear that the affected family includes a person, his or her spouse, minor children, minor brothers and minor sisters dependent on him exclusive of adult of either gender with or without spouse or children, since, the adult of either gender constitutes independent family for the purpose of this Act. Therefore, each major member whose land or the land of the joint family is acquired is entitled to claim benefits under the Act, but no distinction has been drawn between the residents and non-residents of the village to extend the benefits. Obviously, for the reasons best known to respondents, the claim of the petitioners for extension of benefits of RR package was rejected on the ground that they are non-residents. Therefore, rejection on the ground that they are non-residents though their lands are affected in the submergible area on account of Polavaram project is an illegality.

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Therefore, Respondent No.5 is directed to re-examine the entire issue and decide as to their entitlement to the benefit of RR scheme and pass appropriate orders.

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Though the list of beneficiaries of the scheme filed along with the writ petition disclosed the reason for rejection of their claim i.e. ‗ non residents’ , but, what are the reasons for arriving at such conclusion that the petitioners are non-residents are not known either to the petitioners or to respondent No.5. In fact, the petitioners filed voluminous documentary evidence along with the writ petition allegedly before respondent No.5 during enquiry while hearing objections under Section 15 of the Act 30 of 2013, but they were not considered and non-speaking order was passed rejecting the claim of the petitioners. Hence, the rejection of the claim of the petitioners is contrary to the principles of natural justice as Respondent No.5 did not record any reason except one word ― Non-resident rejected .‖ Therefore, the order is against the principles of natural justice, as such this Court can interfere with such orders as the order is bereft of reasons, while exercising power of judicial review under Article 226 of the Constitution of India.

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The list was prepared and published by way of preliminary notification under sub-section (1) of Section 11 of the Act 30 of 2013. Section 16 of the Act 30 of 2013 deals with preparation of rehabilitation and resettlement scheme by the administrator, which is as follows:

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―16. Preparation of Rehabilitation and Resettlement Scheme by the Administrator.–(1) Upon the publication of the preliminary notification under sub-section (1) of section 11 by the Collector, the Administrator for Rehabilitation and Resettlement shall conduct a survey and undertake a census of the affected families, in such manner and within such time as may be prescribed, which shall include—

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(a) particulars of lands and immovable properties being acquired of each affected family;

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(b) livelihoods lost in respect of land losers and landless whose livelihoods are primarily dependent on the lands being acquired;

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(c) a list of public utilities and Government buildings which are affected or likely to be affected, where resettlement of affected families is involved;

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(d) details of the amenities and infrastructural facilities which are affected or likely to be affected, where resettlement of affected families is involved; and (e) details of any common property resources being acquired.

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(2) The Administrator shall, based on the survey and census under subsection (1), prepare a draft Rehabilitation and Resettlement Scheme, as prescribed which shall include particulars of the rehabilitation and resettlement entitlements of each land owner and landless whose livelihoods are primarily dependent on the lands being acquired and where resettlement of affected families is involved—

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(i) a list of Government buildings to be provided in the Resettlement

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Area;

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(ii) details of the public amenities and infrastructural facilities which are to be provided in the Resettlement Area.

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(3) The draft Rehabilitation and Resettlement scheme referred to in subsection (2) shall include time limit for implementing Rehabilitation and Resettlement Scheme.

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(4) The draft Rehabilitation and Resettlement scheme referred to in subsection (2) shall be made known locally by wide publicity in the affected area and discussed in the concerned Gram Sabhas or Municipalities.

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(5) A public hearing shall be conducted in such manner as may be prescribed, after giving adequate publicity about the date, time and venue for the public hearing at the affected area:

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Provided that in case where an affected area involves more than one Gram Panchayat or Municipality, public hearings shall be conducted in every Gram Sabha and Municipality where more than twenty-five per cent of land belonging to that Gram Sabha or Municipality is being acquired:

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Provided further that the consultation with the Gram Sabha in Scheduled Areas shall be in accordance with the provisions of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996). (6) The Administrator shall, on completion of public hearing submit the draft Scheme for 17 Rehabilitation and Resettlement along with a specific report on the claims and objections raised in the public hearing to the Collector.‖

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The language employed in sub-section (2) of Section 16 of the Act 30 of 2013 more particularly the words ―shall include particulars of the rehabilitation and resettlement entitlements of each land owner and landless whose livelihood is primarily dependent on the lands being acquired‖ assumes importance for interpretation to decide the entitlement of individual major members of the same family.

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In view of RR package/scheme and Section 16 of the Act 30 of 2013, if the petitioners are the owners or landless poor whose livelihood is primarily agriculture, they may be entitled to claim benefits of the scheme. Chapter V deals with rehabilitation and resettlement award and specified various columns in Section 31 (2)

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of the Act 30 of 2013, but this Court is not required to decide all these questions more particularly about the entitlement of petitioners being the owners of the land acquired and major members of the affected family as discussed in the earlier paragraphs. Since the order is bereft of any reasons, the order is set aside while directing Respondent No.5 to pass appropriate reasoned order in accordance with law and the observations made herein above are only for the limited purpose of deciding the present writ petition.

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In the result, writ petition is allowed setting aside the impugned order of rejection of Rehabilitation and Resettlement package to the petitioners on the ground of ― Non – resident ‖ while directing Respondent No.5 to pass reasoned order afresh, within a period of three (3) months from the date of receipt of a copy of this order, after affording reasonable opportunity to the petitioners, uninfluenced by the observations made in this order. No costs.

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Consequently, miscellaneous petitions pending, if any, shall also stand closed.

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_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

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24.08.2021 Note: Note: issue copy in two weeks SP

Ravi Subbarao, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Ravi Subbarao, v. The State of Andhra Pradesh

Case brief

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What did the court decide?

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