Allowed

Kamlesh and Others v. State of Hp and Others

Himachal Pradesh HC16 Jul 2024LPA/6/2024

Case brief

AI extract

What is this about?

Landowners challenged acquisition for a railway line on the ground that the Section 19 declaration was made beyond 12 months from the Section 11(1) preliminary notification. The Division Bench held that under the 2013 Act the notification's date is its issue date, not publication date, so the declaration lapsed; allowed the LPA.

What did the court decide?

LPA allowed; Single Judge's order set aside; writ petition allowed qua appellants' notified land and houses; no costs.

Kamlesh and Others Vs State of Hp and Others — Land Acquisition | Himachal Pradesh HC (2024)

¶1

( 2024:HHC:5190 )

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

¶3

LPA no.6 of 2024 Reserved on: 10.07.2024 Decided on:16^th July, 2024

¶4

Smt. Kamlesh and others ....Appellants

¶5

Versus

¶6

State of Himachal Pradesh and others ...Respondents.

¶7

Coram Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice Hon'ble Mr. Justice Satyen Vaidya, Judge

¶8

Whether approved for reporting?¹

¶9

For the Appellants: Mr. T.S. Chauhan, Advocate. For the respondents: Mr. Rakesh Dhaulta, Mr. Sushant Kaprete, Mr. Pranay Pratap Singh, Additional Advocate Generals with Mr. Arsh Rattan, Mr. Sidharth Jalta and Ms. Priyanka Chauhan, Deputy Advocate Generals, for respondents no.1 to 4.

¶10

Mr. Yogesh Putney, Advocate, for respondent no.5.

¶11

¶12

M.S. Ramachandra Rao, Chief Justice

¶13

This LPA is preferred by the appellants challenging the

¶14

judgment dt.11.12.2023 of learned Single Judge in CWP no. 4829 of 2023

¶15

and connected matter.

¶16

1 Whether reporters of Local Papers may be allowed to see the judgment?

¶17

¶18

The case of the appellants

¶19

The said Writ petition had been filed by the appellants to quash Annexure P-1 preliminary notification dt.19.02.2022 issued u/s 11(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “2013 Act”), Annexure P-3 declaration u/s 19 of the said 2013 Act dt.01.03.2023 and Annexure P-4 Summary report of Social Impact Assessment Study for Land Acquisition for Bhanupalli-Bilaspur-Berri, New Broad Gauge Rail

¶20

Line (Km.0.20 to Km.52.0) District Bilaspur, Himachal Pradesh.

¶21

Essentially the plea of the appellants before the learned Single Judge was that they are Agriculturists and land holders whose lands and houses were being acquired by respondents no.1 to 4 for construction of a Broad Gauge Railway Line “Bhanupalli-Bilaspur-Berri” for the benefit of the 5^th respondent- Rail Vikas Nigam Limited.

¶22

1. It is contention of the appellants before the learned Single Judge

¶23

that declaration issued u/s 19 (7) of 2013 Act ought to be issued within 12 months from the date of preliminary notification under Section 11(1) thereof ; in the instant case the date of the preliminary notification u/s 11(1) was 19.02.2022, but the date of declaration under Section 19(1) of the 2013 Act was 01.03.2023; that the latter was issued beyond 12

¶24

¶25

months from the former; and therefore the said proceedings ought to be quashed.

¶26

They also contended that there is no stay or any injunction order passed by any Court and there was also no extension of time granted as per proviso to Section 19(7) of 2013 Act. Therefore the above proceedings ought to be set aside.

¶27

The case of the respondent no.s 1 to 4

¶28

The respondents disputed the said contention in the reply filed on behalf of respondents no.1 to 4.

¶29

According to them, the Project in question being construction of Bhanupalli-Bilaspur-Berri, New Broad Gauge Rail Line (Km.0.20 to Km.52.0), it is in the National Interest and is one of National importance. They state that the said Railway Line proposed would be extended to Leh to cater to the transport needs of the defence force to strengthen the security and integrity of the Country. It is contended that new Railway Line Project between Bhanupali in Punjab to Berri-Barmana in Himachal Pradesh is planned for early completion for the better connectivity between the two States as well as for connecting remote places in Himachal Pradesh with the rest of the Country.

¶30

1. It is stated that the preliminary notification u/s 11 of 2013 Act was

¶31

¶32

published on 02.03.2022 in Hindi and English Language in two daily news papers i.e “Amar Ujala” and “The Tribune” which were in circulation in the area and the acquiring authority had 12 months from the date of publication of preliminary notification i.e. w.e.f. 02.03.2022 till 02.03.2023 in terms of the provisions of sub Section (7) of Section 19 of the 2013 Act to publish the declaration under Section 19.

¶33

It is contended that declaration u/s 19 of 2013 Act had been made on 01.03.2023 within 12 months from the date of publication of the preliminary notification on 2.3.2023. Therefore, there was no illegality in the process adopted by the respondents.

¶34

The stand of the respondent no.5

¶35

1. The 5^th respondent, who is beneficiary of the acquisition, also took a similar stand.

¶36

The order of the learned single Judge

¶37

1. The learned Single Judge in the impugned order agreed with the contention of the respondents.

¶38

1. He held that the provisions of Section 11 and 19 of 2013 Act are

¶39

quite in pari materia to Sections 4 and 6 of the Land Acquisition Act, 1894( for short “the 1894 Act”).

¶40

1. He proceeded on the basis that while the declaration in terms of

¶41

¶42

Section 19 of the 2013 Act has to be made within 12 months of the issuance of preliminary notification under section 11 (1) of the 2013 Act, its publication need not be within 12 months from the date of publication of the notification u/s 11 (1) of the 2013 Act.

¶43

He held that though the declaration has to be made within 12 months from the date of publication of notification u/s 11(1) of the 2013 Act, the same need not be published within 12 months in the Official Gazette to make it effective.

¶44

According to him, if such a declaration under section 19 of the 2013 Act is made within 12 months from the date of issuance of notification under Section 11(1) thereof, then there is compliance of Section 19 of the 2013 Act and the said declaration would not be bad simply because it had

¶45

not been published within 12 months from the date of publication of notification issued u/s 11 of the 2013 Act.

¶46

The LPA

¶47

1. Assailing the same, this Appeal is filed.

¶48

1. Counsel for the appellant contended that the approach of the learned Single Judge is not correct.

¶49

1. According to him, in sub section (1) of the Section 4 of Land Acquisition Act, 1894former, the legislature, while taking note of the

¶50

¶51

various modes of publication of the notification u/s 4 (1), specifically stated that last of the dates of such publication and the giving of such public notice should be taken/treated as the date of the publication of the notification .

¶52

But a similar determination of the date of the preliminary notification is not provided in Section 11 (1) of the 2013 Act. He stated that though preliminary notification is required to be published, if there is a difference between the date of the preliminary notification and date of it’s publication, the statute does not permit the last of such dates to be taken into account as the date of preliminary notification.

¶53

According to him, the 11(1) notification in the instant case bears the date 19.02.2022 and it was published on 02.03.2022 in the Official Gazette, but notwithstanding such publication on 02.03.2022, as per the language of section 11(1), its date can only be taken as 19.02.2022and not as 2.3.2022.

¶54

His contention is that Section 19 declaration issued under Annexure P-3 bears the date 01.03.2023 and is published on 18.03.2023 in the Gazette and both these dates are beyond the period of 12 months permitted u/s 19(7) of the Act.

¶55

¶56

The stand of the respondents

¶57

The counsel for the respondents supported the judgment of the learned single Judge and contended that there is no merit in the plea of the appellants.

¶58

Consideration by the Court

¶59

That the 2013 Act was enacted by the Parliament to make a clear change in some aspects of the law relating to land acquisition from what was contained in the 1894 Act, is clear from the “Statement of Object and

¶60

Reasons” to it. It states:

¶61

“Statement of Objects and Reasons .—

¶62

The Land Acquisition Act, 1894 is the general law relating to acquisition of land for public purposes and also for companies and for determining the amount of compensation to be made on account of such acquisition. The provisions of the said Act have been found to be inadequate in addressing certain issues related to the exercise of the statutory powers of the State for involuntary acquisition of private land and property. The Act does not address the issues of rehabilitation and resettlement to the affected persons and their families.

¶63

2. The definition of the expression “public purpose” as given in the Act is very wide. It has, therefore, become necessary to re-define it so as to restrict its scope for acquisition of land for strategic purposes vital to the State, and for infrastructure projects where the benefits accrue to the general public. The provisions of the Act are also used for acquiring private lands for companies. This frequently raises a question mark on

¶64

¶65

the desirability of such State intervention when land could be arranged by the company through private negotiations on a “willing seller-willing buyer” basis, which could be seen to be a more fair arrangement from the point of view of the land owner. In order to streamline the provisions of the Act causing less hardships to the owners of the land and other persons dependent upon such land, it is proposed repeal the Land Acquisition Act, 1894 and to replace it with adequate provisions for rehabilitation and resettlement for the affected persons and their families.

¶66

3. There have been multiple amendments to the Land Acquisition Act, 1894 not only by the Central Government but by the State Governments as well. Further, there has been heightened public concern on land acquisition, especially multi-cropped irrigated land and there is no central law to adequately deal with the issues of rehabilitation and resettlement of displaced persons. As land acquisition and rehabilitation and resettlement need to be seen as two sides of the same coin, a single integrated law to deal with the issues of land acquisition and rehabilitation and resettlement has become necessary. Hence the proposed legislation proposes to address concerns of farmers and those whose livelihoods are dependent on the land being acquired, while at the same time facilitating land acquisition for industrialization, infrastructure and urbanization projects in a timely and transparent manner.

¶67

4. Earlier, the Land Acquisition (Amendment) Bill, 2007 and Rehabilitation and Resettlement Bill, 2007 were introduced in the Lok Sabha on 6th December, 2007 and were referred to the Parliamentary Standing Committee on Rural Development for Examination and Report. The Standing Committee presented its reports (the 39th and 40th Reports) to the Lok Sabha on 21st October, 2008 and laid the same in

¶68

¶69

the Rajya Sabha on the same day. Based on the recommendations of the Standing Committee and as a consequence thereof, official amendments to the Bills were proposed. The Bills, along with the official amendments, were passed by the Lok Sabha on 25th February, 2009, but the same lapsed with the dissolution of the 14th Lok Sabha.

¶70

5. It is now proposed to have a unified legislation dealing with acquisition of land, provide for just and fair compensation and make adequate provisions for rehabilitation and resettlement mechanism for the affected persons and their families. The Bill thus provides for repealing and replacing the Land Acquisition Act, 1894 with broad provisions for adequate rehabilitation and resettlement mechanism for the project affected persons and their families.

¶71

6. Provision of public facilities or infrastructure often requires the exercise of powers by the State for acquisition of private property leading to displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment. These have traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, particularly in case of the weaker sections of the society including members of the Scheduled Castes (SCs), the Scheduled Tribes (STs), marginal farmers and their families.

¶72

7. There is an imperative need to recognise rehabilitation and resettlement issues as intrinsic to the development process formulated with the active participation of affected persons and families. Additional benefits beyond monetary compensation have to be provided to families affected adversely by involuntary displacement. The plight of those who do not have rights over the land on which they are critically dependent

¶73

¶74

for their subsistence is even worse. This calls for a broader concerted effort on the part of the planners to include in the displacement, rehabilitation and resettlement process framework, not only for those who directly lose their land and other assets but also for all those who are affected by such acquisition. The displacement process often poses problems that make it difficult for the affected persons to continue their traditional livelihood activities after resettlement. This requires a careful assessment of the economic disadvantages and the social impact arising out of displacement. There must also be holistic effort aimed at improving the all-round living standards of the affected persons and families.

¶75

… … …”

¶76

The 2013 Act, though akin to the 1894 Act as it deals with the same subject of land acquisition, there are substantial changes made in the 2013 Act for protection of the land holders whose land is being acquired, such as provision for social impact study (Section 4), provision for revision and updation of market value of the land before staring the acquisition process (third proviso to Section 26(3)), method of computation of compensation ( Section 26), Resettlement and rehabilitation not only for land losers but also to those who have no right over the land but are dependent for their subsistence on the land etc.

¶77

While it is true that issuance of preliminary notification is contemplated by both under the Land Acquisition Act, 1894 in Section 4(1) and also in Section 11 (1) of the 2013 Act, there is clear difference in

¶78

¶79

language used in the said statutes for determining the actual date of the preliminary notification.

¶80

As rightly contended by counsel for the appellants, under the 1894 Act if the publication in different methods has been done, the statute permitted the last of dates of such publication to be taken as the date of publication of notification, but similar provision is missing in Section 11(1) of the 2013 Act.

¶81

The said provisions are both set out side by side to appreciate

¶82

difference in language.

¶83

*Section 4(1) of Land*	*Section 11(1) of Right to Fair*
*Acquisition Act, 1894*	*Compensation* *and*
	*Transparency* in *Land* *Acquisition,* *Rehabilitation* *and Resettlement Act, 2013*
Whenever it appears to	Whenever, it appears to the
the [appropriate	appropriate Government that
Government]	land in any area is required or
[Substituted by	likely to be required for any
A.O.1950.] that land in	public purpose, a notification
any locality [is needed	(hereinafter referred to as
or] [Inserted by Act 38	preliminary notification) to
of 1923, Section 2.] is	that effect along with details of
likely to be needed for	the land to be acquired in rural
any public purpose [or	and urban areas shall be
for a	published in the following

¶84

¶85

company] [Inserted by Act 38 of 1923, Section 2.], a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] [Inserted by Act 68 of 1984, Section 4 (w.e.f. 24.9.1984).], and 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, being hereinafter referred to as the date of the

¶86

manner, namely:—

¶87

(a) in the Official Gazette;

¶88

(b) in two daily newspapers circulating in the locality of such area of which one shall be in the regional language; (c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be and in the offices of the District Collector, the Sub-divisional Magistrate and the Tehsil;

¶89

(d) uploaded on the website of the appropriate Government; (e) in the affected areas, in such manner as may be prescribed. (2) … etc

¶90

¶91

publication	of the
notification )]	[Inserted
by Act 68	of 1984,
Section 4	(w.e.f.
24.9.1984).].
(2)… etc

¶92

( emphasis supplied )

¶93

Therefore to the said extent the learned Single Judge observed that that both statutes are in pari materia, i.e., that they deal with the same subject matter, though may be correct, but due to the clear difference in language between the two provisions as set out above, the decisions interpreting Section 4 (1) of the 1894 Act cannot be applied to interpreting Section 11(1) of the 2013 Act as regards determination of the “date of preliminary notification”.

¶94

Section 19 of the 2013 Act states:

¶95

“Section 19. Publication of declaration and summary of Rehabilitation and Resettlement

¶96

19. Publication of declaration and summary of Rehabilitation and Resettlement .—(1) When the appropriate Government is satisfied, after considering the report, if any, made under subsection (2) of Section 15, that any particular land is needed for a public purpose, a declaration shall be made to that effect, along with a declaration of an area identified as the “resettlement

¶97

¶98

area” for the purposes of rehabilitation and resettlement of the affected families, under the hand and seal of a Secretary to such Government or of any other officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same preliminary notification irrespective of whether one report or different reports has or have been made (wherever required).

¶99

(2) …

¶100

(3)…

¶101

(4) Every declaration referred to in sub-section (1) shall be published in the following manner, namely:—

¶102

(a) in the Official Gazette;

¶103

(b) in two daily newspapers being circulated in the locality, of such area of which one shall be in the regional language;

¶104

(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil;

¶105

(d) uploaded on the website of the appropriate Government;

¶106

(e) in the affected areas, in such manner as may be prescribed.

¶107

(5) Every declaration referred to in sub-section (1) shall indicate,—

¶108

(a) the district or other territorial division in which the land is situated;

¶109

(b) the purpose for which it is needed, its approximate area; and (c) where a plan shall have been made for the land, the place at which such plan may be inspected without any cost.

¶110

¶111

(6) The declaration referred to in sub-section (1) shall be conclusive evidence that the land is required for a public purpose and, after making such declaration, the appropriate Government may acquire the land in such manner as specified under this Act. (7) Where no declaration is made under sub-section (1) within twelve months from the date of preliminary notification, then such notification shall be deemed to have been rescinded:

¶112

Provided that in computing the period referred to in this subsection, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded:

¶113

Provided further that the appropriate Government shall have the power to extend the period of twelve months, if in its opinion circumstances exist justifying the same:

¶114

Provided also that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned.”

¶115

( emphasis supplied )

¶116

Admittedly, in the instant case, the preliminary notification u/s 11(1) of the 2013 Act bears the date 19.02.2022 and it was published on 02.03.2022. But the date of such preliminary notification cannot be taken to be 02.03.2022 in view of the language of section 11(1) of the 2013 Act and it has to be taken to be 19.02.2022 only having regard to the language used in Section 11 (1) of 2013 Act.

¶117

1. Since the declaration u/s 19 bears the date 01.03.2023 and was

¶118

¶119

published on 18.03.2023, irrespective of whichever of these dates is taken into account, it is clear that the declaration is not issued within 12 months from the date of preliminary notification, which is 19.02.2022.

¶120

The learned Single Judge unfortunately does not appear to have noticed the difference in language between the provisions dealing with preliminary notification in the Land Acquisition Act, 1894 and in Section 11 (1) of the 2013 Act and instead proceeded on the question whether the declaration made u/s 19 is required to be published within 12 months from the date of preliminary notification or not.

¶121

While it may be true that the declaration u/s 19 is not required to be published within the period of 12 months from the date of preliminary notification, it is still required to be issued within 12 months from the date of the preliminary notification.

¶122

If the date of the preliminary notification is 19.02.2022, then a declaration issued u/s 19 on 01.03.2023 ( though published later) would not be valid in view of Section 19(7) which automatically rescinds the preliminary notification u/Section 11. In the result the preliminary notification dated 19.02.2022 issued u/s 11 becomes invalid qua the appellants. As regards them the preliminary notification would have to be deemed to be rescinded.

¶123

¶124

The 2013 Act is piece of expropriatory legislation and it is settled law that such legation has to be strictly construed.

¶125

In Dev Sharan v. State of U.P.² , the Supreme Court referred to it’s earlier decisions and held that statutes providing for acquisition of land have to be strictly construed in view of their expropriatory nature. It held that where provisions of Section 17 of the 1894 Act were invoked without justification by an executive fiat denying personal hearing under Section 5-A, both the notification under Section 4 and declaration under Section 6

¶126

have to be quashed and in that case, it quashed both of them.

¶127

“23. In DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana³ , this Court construed the statute on Town Planning Law and held: (SCC p. 635, para 41)

¶128

“41. Expropriatory statute, as is well known, must be strictly construed.”

¶129

The same principle has been reiterated subsequently by a three-Judge Bench of this Court in State of Maharashtra v. B.E. Billimoria⁴ in the context of ceiling law. (See SCC para 22 at p. 347 of the Report.)

¶130

24. These principles again found support in the decision of this Court in Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd .⁵ wherein this Court construed the status of a person’s right to property after deletion of Article 19(1)(f) from Part III. By

¶131

2 (2011) 4 SCC 769

¶132

3 (2003) 5 SCC 622

¶133

4 (2003) 7 SCC 336

¶134

5 (2007) 8 SCC 705

¶135

¶136

referring to various international covenants, namely, the Declaration of Human and Civic Rights, this Court held that even though right to property has ceased to be a fundamental right but it would however be given an express recognition as a legal right and also as a human right. While discussing the ambit and extent of property right, this Court reiterated that expropriatory legislation must be given strict construction. (See SCC paras 53-57 at pp. 731-32 of the Report.)”

¶137

Therefore, in the light of the fact that the declaration under Section 19 of the 2013 Act was issued beyond the period of 12 months from the date of issuance of Section 11 preliminary notification dt.19.2.2022, this Court has no choice but to allow the LPA and grant relief to the appellants.

¶138

For the aforesaid reasons, the LPA is allowed; and the order of learned Single Judge dismissing the Writ petition is set aside; and the said Writ petition is allowed only as regards the land and houses of the petitioners, if any, notified for acquisition by the respondents. No costs.

¶139

All pending applications stand disposed of accordingly.

¶140

( M.S. Ramachandra Rao ) Chief Justice

¶141

( Satyen Vaidya ) Judge

¶142

July 16, 2024 (priti)

Kamlesh and Others v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

Kamlesh and Others v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ulink Agritech Pvt. Ltd. Vs Sml Ltd. and Others

Ominder Singh Vs Ajay Dabra

Kewal Ram Lothta Vs State of Hp and Ors.

Sunil Kumar Vs Anjana Devi

Balbir Masih Vs Union of India and Others

Kanchan Kumari Vs Vikas Bhuria