This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8458 OF 2008
| 1. | Dr. Bhikaji Jagannath Waghdhare, Indian Citizen residing at A/3, Satya Vijay Co-operative Housing |
) ) ) |
|---|---|---|
| Society, SPS Marg, Bhandup (East), Mumbai – 400 078 and at |
) ) |
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| P.O. Madban Taluka Rajapur, District Ratnagiri. |
) ) |
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| 2. | Yashwant Dharmoji Gawankar, |
) |
| Indian Citizen residing at Post Madban, Taluka Rajapur, District Ratnagiri. |
) ) ) |
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| 3. | Shyamsunder Mahadev Narvekar, Indian Citizen residing at Post |
) ) |
| Madban, Taluka Rajapur, District Ratnagiri. |
) ) |
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| 4. | Premanand Vijay Tiwrekar, Indian Citizen residing at Post |
) ) |
| Madban, Taluka Rajapur, District Ratnagiri. |
) ) |
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| 5. | Anubhav Narayan Waghdhare, Indian Citizen residing at Post Madban, Taluka Rajapur, District Ratnagiri. |
) ) ) ) ... Petitioners |
| Versus | ||
| 1. | Union of India through the | ) |
| Department of Atomic Energy. | ) |
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Mr. Sunip Sen with Mr. Mahesh Londhe i/b M/s. Sanjay Udeshi & Co. for the petitioners.
Ms. S.V. Bharucha for respondent 1.
Mr. S.R. Nargolkar, A.G.P. for respondents 2, 3 and 5.
Mr. S.U. Kamdar with Ms. L.A. Munim and Ms. Patel i/b Mr. Rajesh Kothari for respondent 4.
CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ.
DATE ON WHICH THE JUDGMENT IS RESERVED : 31ST JULY, 2009.
DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 13TH AUGUST, 2009.
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JUDGMENT.:- (Per Smt. Ranjana Desai, J.)
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the Central Government has been considering establishing a nuclear power plant in or around the Ratnagiri region. Upon coming to know about the proposed nuclear power plant, petitioner 1 made enquiries with the District Collector, Ratnagiri. By letter dated 21/6/2005, the Industries, Energy and Labour Department of the Government of Maharashtra informed him that 700 hectares of land was required for the plant and 150 hectares of land was required for a housing colony. He was further informed that the project report was not yet prepared and that the project had received no clearances.
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taken were set out in the letter. On 24/1/2006 measurement notices were issued to villagers and surveys were conducted prior to issuance of notification under Section 4 of the L.A. Act. It is the case of the petitioners that the surveys were conducted under purported exercise of powers conferred by the rules of the Booklet for Land Acquisition Rules for Maharashtra State (improved or modified version), 1973. Since the L. A. Act applied only after Section 4 notification, no power can be exercised under it prior to issuance of Section 4 notification and, therefore, these surveys are illegal. At this stage, we must mention that this contention was not pressed by learned counsel for the petitioners and, hence, it is not necessary for us to dwell on it.
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affected, petitioner 1 should contact the district authorities, that there was no exclusion zone having width of 1.6 km., that the proposed site was not earthquake prone and that tremors of about 6.5 were felt in Koyna in 1967 and lesser in later years and that Koyna was about 80 to 90 kms. from Jaitapur.
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the Additional Commissioner. It was published in the
Official Gazette on 22/2/2007. The petitioners have sought quashing of the said notification.
counsel appearing for the petitioners. Mr. Sen first drew our attention to the in principle approval of the Government of India conveyed to the NPCIL vide letter dated 1/7/2005. He pointed out that the in principle approval for Jaitapur project was for (2 x 1000 MWe LWRs). The in principle approval was based on site selection report in which it is stated that the site of Jaitapur project was being evaluated for setting up of three twin units modules of 1000 MWe LWRs (1000 x 3). Learned counsel drew our attention to the affidavit filed on behalf of the NPCIL where it is stated that the NPCIL has submitted the proposal for land acquisition to implement over all plan of 6000 to 8000 MWe (approx.). Mr. Sen submitted that though Site Selection Committee evaluated Jaitapur site for 1000 x 3 MWe LWRs, the
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cabinet granted in principle approval only for 2 x 1000 MWc LWRs. However, the NPCIL has gone overboard and has submitted a proposal for land acquisition to implement over all plan of 6000 x 8000 MWe (approx.). The NPCIL is, therefore, overambitious and has not cared to carry out proper evaluation. Undertaking nuclear power project without proper evaluation is hazardous, submitted Mr. Sen.
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Audyogik Kendra Vikas Nigam & Ors. (2005) 10 SCC
306.
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Nav Konkan on 9/2/2007. It was again published in Ratnagiri Express and Bhairav Times on 4/7/2008. It was published in Tarun Bharat on 5/7/2008. Declaration under Section 6 was published on 13/1/2007. Mr. Sen submitted that since in this case as per Section 4(1), 5/7/2008 is the last date of publication of Section 4(1) notification, Section 6 declaration should have been published before the expiry of one year from 5/7/2008. Since it is not made before expiry of one year from 5/7/2008, but has preceded Section 4(1) notification, it is illegal and must be struck down. In this connection, Mr. Sen relied on the judgment of the Supreme Court in State of Uttar Pradesh v. Radhey Shyam Nigam & Ors. (1989) 1 SCC 591 .
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District Collector, Ratnagiri to the SLAO indicates that urgency clause was invoked only because the acquiring body, the NPCIL has directed it to do so. There is no application of mind of the appropriate Government. Mr. Sen submitted that urgency clause cannot be invoked because the State is unable to follow the procedure laid down under the L.A. Act expeditiously. It’s inefficiency must not prompt it to invoke urgency clause. Mr. Sen submitted that Section 5-A of the L.A. Act provides for hearing of objections. A person interested in the notified land has to be heard. It is a provision which incorporates rules of natural justice. Under Section 17(4), Section 5-A can be dispensed with. Very strong and compelling reasons are necessary for dispensing with Section 5-A. Mr. Sen submitted that only in a case where if you do not dispense with Section 5-A, the project itself will be lost, urgency clause can be invoked. Such is not the case here. In this case, there is no project. Mr. Sen pointed out that Section 17 was invoked in 2005 but acquisition was not even commenced till 2007. No reasonable man
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could have concluded that there was a need to invoke urgency provision. Mr. Sen submitted that the petitioners have squarely raised this point, but the NPCIL has not replied to it which indicates that they have no answer for it. Mr. Sen submitted that in fact in his affidavit Mr. Deshmukh, SLAO has accepted that at the request of the acquiring body – the NPCIL the lands are being acquired. Mr. Sen submitted that development of a particular region by supplying it water, power, etc. is a laudable object. But it is a part of the continuing process of development. On that ground, land owners cannot be deprived of their right under Section 5-A of the L.A. Act. Mr. Sen submitted that inasmuch as there is no urgency, the entire procedure adopted by the respondents is vitiated. This is a case where the proposed acquisition must be set aside. In this connection, Mr. Sen relied on Union of India & Ors. v. Deepak Bhardwaj & Ors. (2004) 13 SCC 85 and Union of India & Ors. v. Krishan Lal Arneja & Ors. (2004) 8 SCC 453 .
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report is prepared. He submitted that there is no clearance from the Ministry of Environment and Forests, which is mandatory. Preparation of an Environment Impact Assessment Report and public hearings is mandatory. As of today, terms of reference for the Environment Impact Assessment Report have not been applied for and cannot be applied for because project report is not prepared. The exact siting of the plant is required to be finalised since the area of the exclusion zone has to be acquired. Mr. Sen drew our attention to the affidavit of Mr. Arora, Chief Engineer of the NPCIL, where it is stated that the NPCIL is in the process of technical evaluation of many proposals on Environment Impact Assessment and final decision will be taken at the Government level depending on the outcome of technical and economic suitability of the proposals. The affidavit further states that the NPCIL has entrusted the job of Environment Impact Assessment study to National Environment and Engineering Research Institute (for
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short, “the NEERI”). Mr. Sen submitted that the affidavit indicates that the NEERI has not submitted its final report as yet. Mr. Sen submitted that since the required clearances are not available there is, as of today, no legally implementable project. Hence, the entire action is vitiated.
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are mala fide excluded from acquisition. They do not want their lands to be acquired. The petitioners want the entire acquisition to be set aside because it is undertaken in colourable exercise of power. Mr. Sen submitted that in the circumstances, this is a fit case where the proposed acquisition should be quashed and set aside.
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has to be made after the expiry of one year from the date of the publication of the notification under Section 4. However, Section 17(4) states that in the situation contemplated thereunder a declaration may be made under Section 6 in respect of the land any time after the date of the publication of the notification under Section 4(1). Mr. Kamdar submitted that it is the publication of the notification in the Gazette which is important. Mr. Kamdar submitted that reliance placed by Mr. Sen on Radhey Shyam’s case is misplaced, because in that case notification under Section 6 was made on the same day on which notification under Section 4(1) was made. In support of his submission Mr. Kamdar relied on the judgment of the Supreme Court in Mohan Singh & Ors. v. International Airport Authority of India & Ors. (1997) 9 SCC 132 .
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notification. He submitted that sub-section (2) of Section 6 does not prescribe any time-limit within which the declaration made under Section 6(1) is to be published. He submitted that it is not the requirement of law that all other steps like publication in the daily newspaper, public notice at convenient places in the locality are to be taken within one year of publication of Section 4 notification. In this connection, he relied on S.H. Rangapa v. State of
Karnataka & Anr., (2002) 1 SCC 538 .
Section 4 is bad because it suffers from the vice of vagueness, Mr. Kamdar submitted that notification under Section 4 published in Government Gazette contains the necessary data of the lands which are to be acquired. He submitted that the publication of the notification in the newspapers is only to inform the people about the proposed acquisition. Mr. Kamdar submitted that that is why Section 4 requires that the Collector has to cause public notice of the substance of the notification to be
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given at convenient places in the concerned locality. Mr. Kamdar submitted that Om Prakash’s case is not applicable to this case because in that case the Supreme Court was dealing with a Gazette notification and if Gazette notification is vague, it is a defect which goes to the root of the matter. Mr. Kamdar submitted that even in Narendrajit Singh & Anr. v. State of Uttar Pradesh, (1970) 1 SCC 125, to which the Supreme Court has made reference in Om Prakash’s case , the Supreme Court was dealing with a Gazette notification. Mr. Kamdar referred to the Supreme Court’s judgment in Indrajit C. Parekh & Anr. v. State of Gujarat & Ors. (1975) 1 SCC 824 where it was argued that description of the land in declaration under Section 6 of the L.A. Act was vague. The Supreme Court rejected this submission by observing that the declaration stated that a plan of the land was open for inspection at the office of the SLAO and in the plan, the area proposed to be acquired must have been clearly demarcated. Mr. Kamdar submitted that in this case also similar averment is made in the impugned
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notification. Mr. Kamdar urged that in the circumstances, this submission deserves to be rejected.
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Understanding (MOU) dated 25/9/2006 was entered into between NPCIL and the Government of Maharashtra in which details of rehabilitation procedure to be followed are given. In tune with the MOU, the work of survey of the affected families is entrusted to Yashwantrao Chavan Academy of Development Administration (YASHADA), Pune. Mr. Kamdar submitted that NPCIL is committed to give same facilities or benefits which are given to its employees to those who are staying in sterilized zone.
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commissioned till all clearances are received.
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non-application of mind, which is not the case here. The court will only consider whether satisfaction is borne out by the material on record. Mr. Kamdar submitted that post notification delay does not vitiate the acquisition in cases of urgency and more the delay, more the urgency. In this connection, Mr. Kamdar relied on State of U.P. v.
Smt. Pista Devi & Ors. With Meerut Development Authority v. Smt. Pista Devi & Ors. (1986) 4 SCC 251; Chameli Singh & Ors. v. State of U.P. & Anr., (1996) 2 SCC 549; Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab & Ors. (1996) 4 SCC 212; First Land Acquisition Collector & Ors. v. Nirodhi Prakash Gangoli & Anr. (2002) 4 SCC 160 and Mahadevappa Lachappa Kinagi & Ors. v. State of Karnataka & Ors. (2008) 12 SCC 418 .
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of great national importance. Mr. Kamdar submitted that advance negotiations are on with foreign countries for acquiring Nuclear Reactor and for that land must be available. Mr. Kamdar submitted that in national interest this project cannot be stalled. He submitted that this is an infrastructure project having great relevance to the development of the country and, hence, needs to be commissioned at the earliest. Mr. Kamdar submitted that in the circumstances, the petition be dismissed.
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given necessary particulars of their lands. The petition does not contain those details and, therefore, on that ground alone, the petition should be dismissed. Mr. Nargolkar submitted that invocation of urgency clause depends on facts and circumstances of each case. He submitted that subjective satisfaction of the Government cannot be questioned unless it is vitiated by malafides or there is non-application of mind. He submitted that nuclear power project is of great importance to the country and, hence, urgency clause is rightly invoked. He relied on the Supreme Court judgment in Jage Ram & Ors. v. State of Haryana & Ors. 1971 (1) SCC 671
where need of setting up of a factory was held to be a good ground for acquisition of land by invoking urgency clause. Apart from the judgments on which Mr. Kamdar has placed reliance, Mr. Nargolkar relied on Babu Singh & Ors. v. Union of India & Ors., (1981) 3 SCC 268; Jainarain & Ors. v. Union of India & Ors. (1996) 1 SCC 9; S.S. Darshan v. State of Karnataka & Ors. with Honeyrex Products Pvt. Ltd. v. State of
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Karnataka & Ors. (1996) 7 SCC 302 and Union of India & Ors. v. Praveen Gupta & Ors. (1997) 9 SCC
78. Mr. Nargolkar submitted that in the circumstances, the petition deserves to be dismissed.
been contested by the petitioners. According to the petitioners, the proposal was initiated in 2005 and till date
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there is no implementation. There is delay at every stage. According to the petitioners, it is only in cases where if the State Government does not dispense with Section 5-A, the project itself would be frustrated, can the urgency clause be invoked. It is contended that the urgency clause is invoked in colourable exercise of power and there is non application of mind. We need to test this argument in the light of judgments of the Supreme Court.
27. In Jage Ram’s case (supra) , the State of Haryana
had invoked urgency clause because it wanted to set up a factory for manufacturing glazed tiles. It was urged that recourse to Section 17 was not justified because acquisition was for the benefit of the company. There was no public purpose involved. The Supreme Court observed that starting a new industry is in public interest because the State of Haryana was lacking in industries and it had become difficult to tackle the problem of unemployment. The Supreme Court further observed that whether starting of an industry is in public interest or not
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is a socio-economic question, which can be decided by the Government and the courts cannot go into it. The Supreme Court observed that so long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration is not open to challenge. The Supreme Court further observed that the fact that the State Government or the party concerned was lethargic at an early stage is not relevant for the question whether on the date on which the notification was issued, there was urgency or not. The conclusion of the Government in a given case that there was urgency is entitled to weight, if not conclusive.
28. In Smt. Pista Devi’s case (supra) , on 29/4/1980,
the Government of U.P. issued notification under Section 4 of the L.A. Act containing a direction under Section 17 (4) thereof dispensing with the inquiry under Section 5-A thereof. The acquisition proceedings were initiated to make land available for housing scheme to meet the situation created by acute shortage of houses. The
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notification was set aside by the High Court because the High Court was of the view that claim of urgency is belied by the delay of nearly one year between the date of notification under Section 4 and the date of declaration made under Section 6. After perusing the record, the Supreme Court observed that there were some errors in the notification which needed to be corrected by issuing a corrigendum. The Supreme Court found that the letters and the certificates submitted by the Meerut Development Authority to the State demonstrated that a great urgency was felt regarding the provision of housing accommodation for the people of Meerut and the State Government acted on the report and materials submitted to that effect and, therefore, resort to Section 17(1) was justified. The Supreme Court noted that population of India has gone upto hundreds of million and it is no longer possible for the court to take the view that the schemes of development of residential areas do not appear to demand such emergent action as to eliminate the inquiry under Section 5-A. The Supreme Court observed that
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provision of housing accommodation in these days has become a matter of national urgency and the court can take judicial notice of this fact. The Supreme Court concluded that post notification delay of nearly one year is not by itself sufficient to hold that the decision taken by the State Government under Section 17(1) and (4) of the L.A. Act at the time of the issuance of notification under Section 4(1) was illegal.
29. In Jainarayan’s case (supra) , the land was to be
acquired for setting up a sewerage plant. Section 17 was invoked and provisions of Section 5-A were dispensed with. It was urged that Section 4 notification stated that land is likely to be needed for public purpose and, therefore, there was no urgency. The Supreme Court negatived this contention. The Supreme Court observed that the question of urgency cannot be determined solely by the expressions used in the notification under Section 4 of the L.A. Act. The emergency must be reflected in the need of acquisition. The Supreme Court observed that the
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existence of the urgency is the matter which is entirely based on the subjective satisfaction of the Government and the courts do not interfere with it unless the reasons given are wholly irrelevant and there is no application of mind. The Supreme Court observed that if the public purpose, on the face of it, shows that the land is needed urgently, that by itself is a relevant circumstance for justifying the action under Section 17(4). The Supreme Court further observed that Delhi has come to be listed as the most polluted city in the world. Therefore, the project of sewerage was of great public importance and the court can take judicial notice of the fact that there was utmost urgency to acquire the land for the purpose of sewerage plant.
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challenged the validity of the notification under Section 4(1) and the exercise of power given under Section 17(1) read with Section 17(4) dispensing with the inquiry under Section 5-A on the ground that there was no urgency to take possession even though the land was required for housing the Dalits. It was pointed out that the proposal was put up in 1979 and the notification was approved in February but was published on 30/4/1983. The Supreme Court negatived this contention. The Supreme Court observed that the opinion of urgency formed by the appropriate Government to take immediate possession, is a subjective satisfaction based on the material placed before it and it was entitled to great weight unless it is vitiated by mala fides or colourable exercise of power. The Supreme Court considered the relevant provisions of the Constitution which safeguard the interest of weaker sections. The Supreme Court observed that food, shelter and clothing are minimal human rights and allotment of houses to weaker sections is constitutional strategy. The Supreme Court further observed that so long as the
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unhygienic conditions and deplorable housing needs of Dalits are not solved, the urgency continues to exist. Referring to the pre-notification and post-notification delay on the part of the officers to finalize and publish the notification, the Supreme Court observed that these facts were present before the Government when it invoked urgency clause and dispensed with inquiry under Section 5-A. The Supreme Court further observed that larger the delay greater be the urgency and delay by itself accelerates the urgency. The Supreme Court clarified that lethargy on the part of the officers for pre and post notification delay would not render the exercise of the power to invoke urgency clause invalid on that account.
31. In Balmokand Khatri Educational & Industrial
Trust’s case (supra) , the exercise of power under Section 17(4) of the L.A. Act and dispensing with inquiry under Section 5-A was challenged on the ground that housing the poor is not such an urgency which cannot wait for conducting inquiry under Section 5-A. Following
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Chameli Singh’s case , the Supreme Court negatived the
contention.
32. In First Land Acquisition Collector’s case
(supra) , the premises in question were requisitioned by the State Government for accommodating students of a medical college. The same premises were subsequently sought to be acquired by issuing notifications under Sections 4 and 6 of the L.A. Act. The High Court quashed the notifications. Fresh notifications were then issued which also came to be quashed. On 29/11/1994 a fresh notification was issued under Sections 4(1) and 17(4) for the same purpose. It was argued before the Supreme Court that in respect of a land which was under possession of the State Government, the emergency power under Section 17 of the L.A. Act cannot be invoked. Negativing this contention, the Supreme Court observed that urgency is a matter of subjective satisfaction of the Government and ordinarily it is not open to the court to make a scrutiny of the propriety of that satisfaction on an
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objective appraisal of facts. Unless non application of mind and mala fides are present, subjective satisfaction cannot be challenged. Urgency is a matter of discretion and decision of the concerned authorities and the courts have to only see whether the appropriate Government had all the relevant materials before it. The Supreme Court clarified that the satisfaction has to be of the appropriate Government and the conclusion of the Government that there is urgency is entitled to great weight. The Supreme Court further clarified that the burden of establishing mala fides is on the person who alleges it. The Supreme Court observed that the premises were badly needed for occupation of students and the urgency was writ large on the facts of the case. The Supreme Court held that any post-notification delay subsequent to the decision of the State Government dispensing with an inquiry under Section 5-A by invoking powers under Section 17(1) would not invalidate the decision itself specially when no mala fides are alleged against the officers of the Government. The High Court’s
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view that the urgency did not exist was held to be unsustainable.
33. In Mahadevappa Lachappa Kinagi’s case
(supra) , there was extra-ordinary delay. In 1994, sanction was accorded to commissioning of river barrage project and final sanction was given in 2003-04. Notification under Section 4(1) was issued on 10/8/2006 for acquiring lands of the appellant to rehabilitate 145 families, who would be displaced by Bhima Lift Irregation Project resulting in submergence of their village when the barrage is commissioned. When invocation of emergency clause was challenged, the Supreme Court held that pursuant to acquisition of lands, the respondents had awarded contract for construction of Rehabilitation Centre at huge cost. If this contract is not permitted to be executed, contract amount will be wasted and 145 families cannot be shifted. Invocation of urgency clause was held to be proper.
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34. In Darshan’s case (supra) , the land was to be
acquired for establishing information technology park. Urgency provisions of Section 17 were invoked. It was urged that there was no urgency. The Supreme Court rejected the argument.
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judgments underlying the exercise of urgency provisions under Sections 17(1) and (4) of the L.A. Act need to be stated because they will guide us to decide whether the invocation of urgency provisions is justified in this case or not and what is the extent of judicial review in respect thereof. The principles may be summarized as under:
b) The opinion formed by the appropriate Government to take immediate possession is a subjective satisfaction based on materials placed before it and it is entitled to great weight unless it is vitiated by mala fides, colourable exercise of power or by non-application of mind
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f) The Court can take judicial notice of the fact that a particular project is of great public importance and there was urgency to acquire the land for that purpose. In a given case, urgency may be writ large on the facts of the case. Whether a project is in public interest or not is a socio economic question which can be decided by the Government and the Courts cannot go into it so long as acquisition is not made for collateral purpose.
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h) Lethargy on the part of the officers resulting in pre and post notification delay would not render the exercise of power to invoke urgency clause invalid on that count. The delay by itself accelerates the urgency. Larger the
delay, greater be the urgency.
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country. The present project is, therefore, of great public importance of which we can take judicial notice. Urgency is writ large on the facts of this case. Pre and post notification delay would not render the invocation of urgency provision invalid in this case. The nature of the project is such that delay has accelerated the urgency. Lethargy, if any, of the officers cannot vitiate a project of this nature which is going to benefit a large number of people.
power by the respondents but have failed to prove it. According to the petitioners, the Government of Maharashtra has not applied its mind to the question whether there was need to invoke the urgency provisions of the L.A. Act. In this connection, it is necessary to refer to the affidavit filed by Mr. T.R. Arora, Chief Engineer, Jaitapur Nuclear Power Project, NPCIL, which gives the background of the present project, various steps taken by the Government of India and the NPCIL and the particulars
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of their interaction with the Government of Maharashtra. The affidavit states that in exercise of powers vested with it under Article 246 of the Constitution of India, the Parliament enacted the Atomic Energy Act, 1962. Under the Atomic Energy Act, the Department of Atomic Energy, Government of India, has been vested with the exclusive power to produce, develop use and dispose of Atomic Energy and also utilize energy source for the purpose of production and supply of electricity. In the year 1987, the Atomic Energy Act, 1962 was amended to incorporate enabling provisions therein whereby the Government of India acquired power to produce, develop, use and dispose of the “Atomic Energy” including the production and supply of electricity through it either by itself or through any authority or corporation established by it or through a Government company. The Government of India decided to carry out the “generation of electricity” through a Government company. Accordingly, the Nuclear Power Board, a constituent unit of the Department of Atomic Energy, Government of India was
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converted into a Government Company i.e. the NPCIL. Thus, the NPCIL was incorporated in the year 1987 under the Companies Act, 1956 as a Government company wholly owned by the Government of India. It is under the administrative control of the Department of Atomic Energy. The NPCIL is assigned the activities to design, construct, operate and maintain the Nuclear Power Plants (for short, “the NPPs”) within the country. Being a Government company, the NPCIL is performing a sovereign function to generate electricity through Atomic Energy. The Atomic Energy Commission is the apex decision making body. It is responsible for all policy decisions. It has been created through a resolution passed by the Government of India whereby its functions and responsibilities have been fixed.
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Committee has reviewed, examined and assessed different sites considered suitable for setting up of future NPPs in the country and submitted its recommendation in three reports. The assessment of sites for locating a NPP is an on going process and from time to time the Government of India for setting up of NPPs carries out such assessments to identify suitable locations for establishing NPPs. In its report No.3, entitled “Assessment of Sites” for locating NPPs, the Site Selection Committee had recommended four sites viz. Kakrapur in Gujarat, Bargi in Madhya Pradesh and Jaitapur and Tarapur in Maharashtra. The sites have been recommended after carrying out evaluation / analysis of diverse nature of data collected from various Government and Non-Government Agencies. The recommendations of the Site Selection Committee were considered appropriately by the Government of India. The Jaitapur Site was evaluated for setting up of three twin unit modules of 1000 MWe LWRs. Finally, the Government of India conveyed its approval to the Department of Atomic
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Energy in September, 2005, which was formally issued to the NPCIL vide letter dated 17/10/2005.
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colony. An application for acquisition of land was submitted by the NPCIL vide its letter dated 26/10/2005 to the District Collector, Ratnagiri proposing to acquire 970.82 Ha of total land i.e. 701.92 Ha for Plant Site and 268.9 Ha for residential colony. Pursuant to this, lands in Jaitapur are proposed to be acquired for the NPP by taking recourse to the provisions of Section 17 of the L.A. Act by dispensing with inquiry contemplated under Section 5-A of the said Act.
we have quoted hereinabove and annexures thereto clearly show that the Government of India, the NPCIL and the State of Maharashtra have worked in sync. All decisions are taken after due deliberation and consultation. The Site Selection Committee constituted by the Department of Atomic Energy has reviewed, examined and assessed sites for setting up NPPs. Jaitapur site was identified and recommended by the Committee after scientific evaluation and analysis. After considering this
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report, Department of Atomic Energy issued approval. On 26/9/2005, a meeting was held under the Chairmanship of Chief Secretary, Government of Maharashtra to discuss the proposal regarding setting up of NPP at Jaitapur. The meeting was attended by the Principal Secretary, Revenue Department, Principal Secretary (Energy), Chairman NPCIL and Executive Director, NPCIL. Minutes of the said meeting annexed to the affidavit indicate that the Chairman, NPCIL brought to the notice of the Chief Secretary, Government of Maharashtra, the proposal to set up NPP of capacity of about 6000 to 8000 MW at Jaitapur. He also mentioned the extent of land which is required to be acquired. The Government of Maharashtra was requested to identify Nodal State Government Official with whom NPCIL could co-ordinate on the relevant issues. After discussion, vital decisions mentioned below were taken:
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captive port by NPCIL is required to be examined by the Home Department.
Generating Company Limited.
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Chairman of the NPCIL brought the proposal to the notice of the Chief Secretary. If the urgency clause is invoked thereafter, it is difficult to hold that the State of Maharashtra did not apply its mind to it. In fact, Mr. Arora has stated in his affidavit that urgency clause was invoked as per discussions held with the Chief Secretary, Government of Maharashtra. We have no reason to disbelieve this statement.
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and the Government of Maharashtra on vital issues concerning acquisitions. It contains the terms of agreement between the two as regards baseline survey of the families affected by the process of land acquisition, assessment of loss which may be suffered by the affected families and preparation of Resettlement and Rehabilitation plan of affected families. We are, therefore, of the opinion that the Government of Maharashtra has applied its mind to the material placed before it. It has considered whether there is a need to invoke urgency clause. It has also applied its mind to the consequences which may flow from the acquisitions. The submission that there is non-application must therefore fail. We have already expressed that the petitioners have not been able to establish mala fides or colourable exercise of power by the respondents.
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vitiated by mala fides, colourable exercise of power or by non-application of mind, it’s judicial scrutiny on an objective appraisal of facts is not permissible in law. It is entitled to great weight and cannot be tinkered with.
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observed by the Supreme Court in First Land
Acquisition Collector’s case , urgency is a matter of subjective satisfaction of the Government and is not open to judicial scrutiny. The only relevant consideration is whether the State Government had the relevant material before it. Applying this principle, we reject the argument that delay if any, in initiating and processing the proposal has vitiated the acquisition.
The declaration under Section 6(1) was published on 24/12/1986 and notice of substance thereof was given in
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the locality thereafter. It was urged that the exercise of power under Section 17(4) is conditional upon the publication of the notification under Section 4(1). Thereafter, the Government has the power to invoke Section 17(4). Section 4(1) contemplates three mandatory conditions to be complied with i.e. (1) publication of the notification under Section 4(1) in the Official Gazette, (2) publication of the notification in two daily newspapers having circulation in that locality of which at least one shall be in the regional language; and (3) the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The last of the dates of such publication and the giving of such public notice has reference to the date of the publication of the notification. Unless all the three steps are complied with and after compliance of last of it or any of them which will be the last of it, the L.A. Act gives power to the appropriate Government to exercise the power under Section 17(1) and empowers it to dispense with enquiry under Section 5-A and declaration
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under Section 6(1) may be made in respect of any land at any time “after the publication of the notification under Section 4(1)”. Reliance was placed on the judgment of the Supreme Court in Radhey Shaym’s case on which Mr. Sen has also placed reliance.
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within a gap of one day to make the declarations under Section 6 and have the same published under Section 6(1). Thus, what is mandatory is publication of the notification under Section 4(1) in the Gazette. Thereafter within a gap of a day publication of the declaration under Section 6(1) is mandatory. The Supreme Court further observed that thereby the public purpose becomes conclusive, as envisaged under sub-Section (3) of Section 6 and the Collector is empowered to take immediate possession of the land for public purpose. The Supreme Court clarified that though the compliance of three steps required under Section 4(1) is mandatory, for the exercise of the power under Section 17(4), it is not necessary that all the three steps should be completed before making the declaration under Section 6(1) and have it published for directing the Collector to take possession under Section 17(1) or Section 17(2). What is needed is that there should be a gap of time of at least a day between the publication of the notification under Section 4(1) and the declaration under Section 6(1). The Supreme Court made
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it clear that the date of notification and declaration published in the Gazette is conclusive. While explaining the reason for taking such a view the Supreme Court stated that if the publication in the newspapers and in the locality is also insisted upon as preliminary to the exercise of power under Section 17(4) until last of them occurs the immediate or urgent necessity to take possession of the land under Section 17(1) or Section 17(2) before making the award would be easily defeated by dereliction of duty by subordinate officers or by skillful manoeuvre. The Supreme Court further observed that the publication in the newspapers and giving of notice of substance of the notification at convenient places of the locality are required to be done by the Collector, authorized by the Government under Section 7 and his subordinate staff. What the Supreme Court in effect stated was that if the court waits till last of the dates that will give primacy to dereliction of duty and the Government would be unable to act swiftly for the public purpose to take immediate possession under Section 17(1) and Section 17(2) and the
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purpose of these provisions would be defeated.
48. The Supreme Court distinguished Radhey Shyam’s
case . The Supreme Court observed that in that case several notifications under Section 4(1) and declarations under Section 6 were published simultaneously. In that context, the Supreme Court held that the words “after the publication of the notification” under sub-Section (4) of Section 17 read simplicitor, clearly indicate that the declaration under Section 6 had to be made after the publication of the notification, meaning thereby subsequent to the date of the publication of the notification. The question at what gap of time declaration can be published did not arise for consideration in that case. The Supreme Court observed that what is material is that the declaration under Section 6 should be published in the Gazette after the notification under Section 4(1) is published i.e. after a gap at least of one day. Therefore, declaration is required to be published though signed earlier, after publication of notification
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under Section 4(1) in the Gazette. In the present case, notification under Section 4 was published in Government Gazette on 22/2/2007 and declaration under Section 6 was published in Government Gazette on 31/1/2008. Examined in the light of Mohan Singh’s case , we find no illegality in the issuance of declaration under Section 6 of the L.A. Act.
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4(1) and declaration under Section 6 and have them published in the Gazette that the land acquired under Section 4(1) is needed for public purpose; they become conclusive under Section 6 and to give direction to the Collector to take its possession. The Supreme Court has further observed that the publication in the newspapers and giving notice of the substance of the notification at the convenient places in the locality are required to be done by the Collector authorised by the Government under Section 7 and his subordinate staff. Thus, the publication in the newspapers is only to inform the people about acquisition. On the same lines, Section 4(1) requires the Collector to cause public notice of the substance of such notification to be given at convenient places in the said locality. What is of vital importance is the Gazette notification which must contain all the details of the land to be acquired. Since in this case the Gazette notification contains all the details of the land, the requirement of law is complete. In Om Prakash’s case , the Supreme Court was dealing with a Gazette
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notification. In the Gazette notification, the State cannot say that particulars of the land are available at the SLAO’s office as stated in the notification, which was before the Supreme Court in Om Prakash’s case . It is in these circumstances, that the Supreme Court held in Om Prakash’s case that the notification was not sustainable. We may also mention that in Indrajit’s case , the Supreme Court approved the statement made in declaration under Section 6 that a plan of the land was open for inspection at the office of the SLAO. Having examined this submission in the light of the Supreme Court judgments mentioned above, we have no hesitation in rejecting it.
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organizations i.e. Bhabha Atomic Research Centre, Atomic Minerals Directorate for Exploration and Research, Central Electricity Authority, Union Ministry of Environment and Forests and units of NPCIL have participated in collection scrutiny and review of the site related characteristics and in making recommendations. It is a report prepared by experts in respective fields and is entitled to great weight. So far as Jaitapur site is concerned, the report states that the site is suitable, initially for setting up first module of 2 x 1000 MWe LWRs. Based on land and water availability an additional second module of 2 x 1000 MWe LWRs can also be set up. The recommendation discusses the availability of water and states that subsequently, supplementing the water supply with desalination plant, the site in the ultimate stage can be considered for third module of 2 x 1000 MWe LWRs. It is true that the in principle approval dated 17/10/2005 is for 2 x 1000 MWe LWRs. But letter dated 16/10/2008 addressed by the Deputy Secretary, Department of Atomic Energy to the Chairman of the NPCIL which is annexed to the affidavit of
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Mr. Arora states that considering the proposed expansion of the nuclear power programme as envisioned in Vision 2020 of the Department, capacity addition is proposed through a mixed basket of indigenous PHWRs, Fast Breeder Reactors and imported LWRs. The letter further states that with a view to achieving the above goal, nuclear parks consisting 6-8 nuclear reactors of 1000 MWe capacity and above are planned. The minutes of meeting dated 26/9/2005 which was held under the Chairmanship of Chief Secretary, to which we have made a reference hereinabove will have to be read against the above background. It is in the above backdrop of facts that the NPCIL has proposed setting up of NPP of capacity of about 6000 to 8000 MWe at Jaitapur. We would not interfere with a policy decision of this nature based on expert advise. We, therefore, reject the submission of Mr. Sen that there is no proper evaluation of the capacity of the proposed NPP.
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is earthquake prone and there is no proper evaluation of that aspect. As per Site Selection Committee report, Jaitapur site is located in zone III as per Seismic Zoning Map of India IS:1893:1984. The Seismic Zoning Map is annexed to the affidavit of the NPCIL. The report contains evaluation of the relevant aspect under the caption `Seismotectonis’. The analysis concludes by saying that the site is engineerable on seismicity considerations. The meticulous study of the relevant data made by an expert body cannot be debated upon. Mr. Arora has stated on oath that as per the studies carried out by Geological Survey of India, Nagpur, National Geographic Research Institute, Hyderabad and Oil and Natural Gas Commission, there are no active faults in the radius upto 39 KMs as laid down by Atomic Energy Regulatory Board. Mr. Arora has further stated that reply of CPIO of the NPCIL to petitioner 1 under the Right to Information Act contains seismic recordings pertaining to earthquake events in the entire region for 20 years between 1985 to 2005 and there is no event recorded at the proposed site. Mr. Arora has further
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stated that there was only one tremor of 6.5 magnitude at Koyna on 10/12/1967 which is 90 KMs away from Jaitapur site. In view of the above, we reject Mr. Sen’s submission that there is no proper evaluation of seismicity.
that there is no implementable project because necessary clearances have not been received. We have already noted that NEERI has submitted a draft report after conducting comprehensive study. Mr. Arora has gone on record to say that the NPCIL has made an application for environmental clearance on 18-20/2/2009 to the Ministry of Environment and Forests, Government of India (MoEF) along with NEERIs draft report. The MoEF has suggested upgradation of the said report. The NPCIL is in process of conducting public hearings under the guidance of the Maharashtra Pollution Control Board. The Maharashtra Coastal Zone Management Authority has issued a certificate dated 17/3/2009 recommending the proposed NPP for CRZ clearance from the MoEF. The said certificate
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is on record at Exh.19 to Mr. Arora’s affidavit. Unless the
land is made available to the NPCIL, all clearances cannot be obtained. The project cannot be said to be nonimplementable because some clearances are awaited. Mr. Kamdar learned counsel for the NPCIL has stated that the pollution control clearance is awaited. He assured the court that until all the clearances are received the project will not be commissioned. We, therefore, reject this submission of Mr. Sen.
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whether they have authorized the petitioners to agitate their grievance. The necessary leave to file the petition is not obtained. In any case, in the interest of justice, we propose to examine this grievance.
with the guidelines of Atomic Energy Board, an Exclusion Zone encompassing the area within 1.6 KMs radius from the centre of the first and last reactor to be set up is to be maintained free from any inhabitants. It is categorically stated in the affidavit that in the present mapping of the plant area, not a single residential house is falling in the `Exclusion Zone’ and therefore no rehabilitation is required of any such person. The affidavit further states that area of 5 KMs from the centre of the plant is considered as Sterilized Zone. It is an area with controlled population density. The residential colony of the employees of the NPCIL is planned outside the Sterilized Zone of the plant. We have already referred to the MOU entered into by the NPCIL with the State
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Government. In that MOU detailed rehabilitation
procedure is incorporated. The MOU brings out various steps involved in the process of formulation of the Rehabilitation plan, its approval by the State Rehabilitation Authority and implementation by the Authorities and Departments responsible for executing each step. It appears that in line with the requirements laid down under the MOU, the process of baseline survey of the families affected by the process of land acquisition in the five villages has been entrusted by the State Government to YASHADA, which is functioning under the direct supervision of the District Collector, Ratnagiri. In the affidavit of the NPCIL, it is stated that the NPCIL has already deposited the entire compensation amount with SLAO, Ratnagiri. Mr. Kamdar learned counsel for the NPCIL assured the court that all facilities which are made available to the employees of the NPCIL will be made available to the persons staying in Sterilized Zone. Mr. Deshmukh, SLAO, Ratnagiri has stated in his affidavit that the provisions of the Maharashtra Project Affected Persons
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(Rehabilitation) Act, 1986 have been made applicable to the present project. In our opinion, in view of the categorical statements made in the affidavits by the NPCIL and the State Government and in view of the statement made by Mr. Kamdar that the project affected persons will not be discriminated, we are of the opinion that fears expressed by Mr. Sen are baseless.
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brooks no further delay. In the view that we have taken, we dismiss the petition. Needless to say that the interim order stands vacated.
[SMT. RANJANA DESAI, J.]
[A.A. SAYED, J.]
2 issues framed by the court
Whether the Jaitapur Nuclear Power Project can be stalled on the grounds raised in the petition challenging the rehabilitation and compensation measures.
Whether the Supreme Court is justified in dismissing the public interest litigation concerning the Jaitapur Nuclear Power Project.
Dr. Bhikaji Jagannath Waghdhare
Yashwant Dharmoji Gawankar
Shyamsunder Mahadev Narvekar
Premanand Vijay Tiwrekar
Anubhav Narayan Waghdhare
Union of India
Smt. Ranjana Desai
A. A. Sayed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
