o^^ w AS-'i? M r s\ HI6H COURT OF CHHATTIS6ARH AT BILAS WRIT PETITION (C) N0.5924/07 PETITIONER RESPONDENTS Vs. Gaukaran Singh State of Chhattisgarh & others WRIT PETITION (C) N0.5925/07 PETITIONER Sarju Prasad. Vs. RESPONDENTS State of Chhattisgarh & others WRIT PETITION fC) N0.6711/07 PETITIONERS Ramkishun and otherse V?. RESPONDENTS Sta+e of Chhattisgarh & others WRIT PETITION (0 N0.6787/07 PETITIONER Arvind Kumar Agarwal. Vs. RESPONDENTS State of Chhattisgarh <& others WRIT PETITION (0 N0.6603/07 PETITIONER Tulsi Ram Vs. ^- RESPONDENTS State of Chhattisgarh <& others <s WRIT PETITION (C) N0.6597/07 PETITIONER Vishambhar Vs. RESPONOENTS State of Chhattisgarh <& others POST FORORDER ON 11-6-2008 .(1. . .2£a^stoa lud6e 2-^ £ HIGH COURT^OF^HHATTISSARH AT BILASPUR PETITIONER RESPONbENTS '•\ ^ PETITIONER WRIT PETITION fCl N0.5924/07 Gaukaran Singh, S/o Shri Sitaram Gond, aged about 42 years, occupation- Agriculturist, R/o Village Saloni, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. Vs. 1. State of Chhattisgarh, Through the Secretary (Revenue), Department of Revenue, Mantralaya, D.K.S. Bhawan, Raipur Chhattisgarh. 2. Collector, Raipur, District Raipur, Chhattisgarh. 3. Sub Divisional Officer (Revenue), Baloda Bazar, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. 4. Officer-in-charge, Land Acquisition Branch, Baloda Bazar, Distt. Raipur Chattisgarh. 5. M/s Lafarge India Private Limited, through its General Manager, Village: Sonadih, P.0. Rasedi, Tehsil Baloda Bazar, District; Raipur, Chhattisgarh. 6. The Seneral Manager, District Trade and Industries Centre, Raipur District Raipur, Chhattisgarh. 7. Chhattisgarh State Infrastructure Development Corporation, CSI&C, Raipur, District Raipur, Chhattisgarh WRIT PETITION (C) N0.5925/07 Sarju Prasad, S/o Shri Ramji Dhruw, aged about 34 years, occupation-Agriculturist, R/o Village Dhabadih, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. Vs. ^ESPONDENTS 1. State of Chhattisgarh, Through the Secretary (Revenue), Oepartment of Revenue, Mantralaya, D.K.S. Bhawan, Raipur Chhattisgarh. 2. Collector, Raipur, District Raipur, Chhattisgarh. 3. Sub Divisional Officer (Revenue), Baloda Bazar, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. 4. Officer-in-charge, Land Acquisition Branch, Baloda Bazar, Distt. Raipur PETITIONERS Chattisgarh. 5. M/s Lafarge India Private Limited, through its General Manager, Village: Sonadih, P.0. Rasedi, Tehsil Baloda Bazar, District: Raipur, Chhattisgarh. 6. The General Manager, District Trade and Industries Centre, Raipur District Raipur, Chhattisgarh. 7. Chhattisgarh State Infrastructure Development Corporation, CSIDC, Raipur, District Raipur, Chhattisgarh WRIT PETITION (C) N0.6711/07 1. Ramkishun, S/o Shri Sudharam, aged about 70 years, occupation- Agriculturist, Resident of Village Dhabadih, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. 2. Sewaram, S/o Shri Ramkishun, aged about 35 years, occupation- Agriculturist, Resident of Village Dhabadih, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. 3. Smt. Rukhmani, w/o Shri Sewaram, aged about 30 years, occupation- Agriculturist, Resident of Village Dhabadih, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. 4. Nandlal, S/o Shri Chheduram, aged about 30 years, occupation- Agriculturist, Resident of Village Dhabadih, Tehsil Baloda Bazar, District Raipur, Chhattis9arh. Vs. RESPONDENTS 1. State of Chhattisgarh, Through the Secretary (Revenue), Department of Revenue, Mantralaya, D.K.S. Bhawan, Raipur Chhattisgarh. 2. Collector, Raipur, Oistrict Raipur, Chhattisgarh. 3. Sub Divisional Officer (Revenue), Baloda Bazar, Tehsil Baloda Bazar, District Raipur, Chhattisgarh. 4. Officer-in-charge, Land Acquisition Branch, Baloda Bazar, Distt. Raipur Chattisgarh. 5. M/s Lafarge India Private Limited, through its 6eneral Manager, Village; Sonadih, P.0. Rasedi, Tehsil Baloda z>^ PETITIONER Bazar, District: Raipur, Chhattisgarh. 6. The General Manager, District Trade and Industries Centre, Raipur District Raipur, Chhattisgarh. 7. Chhattisgarh State Industrial Development Corporation, CSIDC, Raipur, bistrict Raipur, Chhattisgarh WRIT PETITION (0 N0.6787/07 Arvind Kumar Agarwal, son of Late Biresh Narayan Agarwal, aged about 67 years, resident of Village Mopka, Tehsil Bhatapara, District Raipur, (C6). Vs. •-( -> -* RESPONbENTS •'-' PETITIONER RESPONDENTS 1 PETITIONER 1. State of Chhattisgarh, Through the Secretary, Revenue Department, &.K.S. Bhawan, 6.E. Road, Raipur (C.6.) 2. Land Acquisition Officer, Bhatapara, District Raipur (Chhattisgarh). 3. Collector, Raipur District Raipur, (Chhattisgarh). WRIT PETITION fC) N0.6603/07 Tulsi Ram, S/o Shri Bharosa Ram, Aged about 33 years, R/o Village-Mopka, Tah.- Bhatapara, Distt. Raipur (C.6.) Vs. 1. State of Chhattisgarh, Through- Secretary (Revenue), D.K.S. Bhawan, Raipur (C.6.) 2. Collector, Raipur District Raipur (C.6.) 3. Sub Divisional Officer (Revenue), Bhatapara, Distt. Raipur, (C.G.). 4. Officer-in-charge, Land Acquisition Branch, Bhatapara, Distt. Raipur (C.G.). 5. M/s Lafarge India Pvt. Ltd., through its General Manager, Village: Sonadih, P.0. Rasedi, Tehsil Baloda Bazar, Distt. Raipur, (C.6.). 6. The General Manager, District Trade and Industries Centre, Raipur District Raipur, (,€.&.). & WRIT PETITION fC) N0.6597/07 Vishambhar, S/o Late Sakha Ram, Aged about45 years, R/o Village-Sudeliya, Tah.- Bhatapara, Distt. Raipur (C.6.) Vs. ^ ^ RESPONDENTS 1. State of Chhattisgarh, Through- Secretary (Revenue), D.K.S. Bhawan, Raipur (C.G.) 2. Collector, Raipur District Raipur (.C.G.) 3. Sub Divisional Officer (Revenue), Bhatapara, Distt. Raipur, (C.G.). 4. Officer-in-charge, Land Acquisition Branch, Bhatapara, Distt. Raipur (C.6.). 5. M/s Lafarge India Pvt. Ltd., through its General Manager, Village: Sonadih, P.0. Rasedi, Tehsil Baloda Bazar, Distt. Raipur, (C.6.). 6. The Seneral Manager, District Trade and Industries Centre, Raipur District Raipur, (C.6.). i IIWesent: Mr. P. Diwakar, Sr. Advocate with Mr. Sanjay K Agarwal, Mr. S. Sharma & Mr. S. Agarwal, Advocates. Mr. H.B. Agarwal, Sr. Advocate with Mr. Pankaj Agarwal, Advocate Mrs. Meena Shashtri, Advocate Mr. Prashant Mishra, Advocate General with Mr. Sumesh Bajaj, Sovernment- Advocate. Mr. Ravishankar Prasad, Sr. Advocate with Ms. Suparana Shrivastava <& Mr. Bhaskar Pyasi, Advocates. •^Mr. Ayaz Naved, Advocate For the petitioners in W.P. (c) Nos.5942/07, 5925/07 & 6711/07. For the petitioner in W.P. [c] No.6787/07. For petitioners in W.P. (c) Nos. 6603/07 & 6597/07 For the State of Chhattisgarh. For the respondent-Lafarge India Private Limited. For the respondent CSIDC. O R D ER (Passed on |^June. 2008) ^hirendra Mishra. J 1. The above petitions are being disposed of by this common order as the point involved in all these petitions is same. 2. The petitioners in these writ petitions are the owners of agricultural lands situated at Village Sonadih, Gudeliya, Dhabadih <& Mopka. ^3 & -t >.-<• •^' r 3. Respondent-Lafarge India Pvt. Limited, a company registered under the Indian Companies Act, 1956, (for short 'the respondent company') has a cement plant at Village Sonadih, Tehsil Baloda Bazar. The company submitted an application dated 16.5.2006 to the Additional Chief Secretary cum Convener, State Industrial Promotion Board, Government of Chhattisgarh statin9 therein that they have taken a decision to establish a rail link between their Sonadih ptant <& Nipaniya railway station at their own expenses. The land required by the company consists of private land and government land and therefore, immediate step for acquiring the entire land falling in the alignment of proposed rail link was requested. In all approximately 74 hectares of private land of nine villages situated at Bhatapara & Baloda Bazara tehsil were required by the company. 4. The Collector sent a memo to the Sub Divisional Officer (Revenue) cum Land Acquisition Officer of Bhatapara & Baloda Bazar for the purpose of above acquisition. The Sub Divisional Officer, Baloda Bazar vide his memo dated 26th/27th April, 2007 addressed to the respondent-General Manager, bistrict Industries <& Trade Centre, Raipur apprised about the cost of acquisition of the lands of Bhatapara <& Baloda Bazar and directed to deposit cheque for the necessary amount for acquisition so that further land acquisition proceedings may be commenced. Respondent-Chhattisgarh State Infrastructure Development Corporation, Raipur (for short "CSI&C") in turn requested the respondent company vide its memo dated 30.5.2007 to deposit the entire cost of acquisition in nine villages, which was assessed to Rs.2,55,72,7537- approximately. 5. In response to the above request, the respondent company addressed a memo dated 31.5.2007 mentioning therein that cheque for the above sum in favour of the CSIDC against the^ <--< »^> ^ ^ payment for land acquisition of private lands for railway line under Bhatapara & Baloda Bazar is being forwarded and it was further requested to release necessary payment to the Sub Divisional Officer, Bhatapara A Baloda Bazar for taking further action in the matter. Respondent-CSI&C vide memo dated 7.6.2007 sent the entire sum deposited by the respondent company to the General Manager, District Industries & Trade Centre for transferring the same to the Sub C)ivisional Officer, Bhatapara & Baloda Bazar. Thereafter, the impugned notification dated 17.8.2007 was issued by the respondent Collector mentioning therein that the land in dispute is required for the public purpose i.e. for construction of railway line for industrial purposes. 6. The petitioners have impugned the above notification on the grounds that;- • the acquisition proceeding is for construction of private railway line for the respondent company at their own cost; • the acquisition proceeding has been initiated without following the Land Acquisition (Companies) Rules, 1963 (for short 'Rules, 1963'); -^- t • the purpose for which the land is proposed to be acquired is not a public purpose within the meaning of Section 3 (f) of the Land Acquisition Act, 1894 (for short 'Act, 1894'), as it is for the construction of rail siding of a private company; • the impugned notification has been issued by the Collector, who is not a competent authority to issue notification under Section 4 of the Act, 1894; • notification under Section 4 (1) of the Act, 1894 is also illegal and bad in law for want of particulars of the land - -«"'l: ' • ,•/'-?. ^»- -^- i^ ••^s^^ Yv^ ••:^-2^-< ^3 ^ ^ , > .A •« to be acquired and also for not mentioning the public purpose for which the acquisition is proposed; 7. Respondent No.l to 4 & 6 in their reply and additional return have taken the objections that the petition is premature, as the same has been filed without filing any objection under Section 5-A of the Act, 1894. The State Sovernment has issued a notification dated 3.9.2003 (Annexure R-l) specifically authorizing the Collector of the District, in his capacity of ex-officiating Deputy Secretary to the Sovernment of Chhattisgarh, to deal with the cases of land acquisition and to exercise powers under Sections 4 & 6 of the Act, 1894. Description of lands proposed to be acquired is mentioned in the impugned notification and the proposal for acquisition was duly notified in two prominent newspapers (Annexure R-2 A R- 3) in which details of lands have also been clearly mentioned. Thus, the provision has been substantially complied with and it does not cause any prejudice to the petitioners. Section 3 (f) of the Act, 1894 wherein "public purpose" has been defined stands amended in the State of Chhattisgarh and it includes the provisions of land for business or industrial purposes or for any purpose incidental to it apart from other p^irposes. The proposal of the respondent company was in the public interest as heavy traffic in the concerned road would get lessened and it would further increase revenue of the railway and also promote industrial activities in the State. The State has entered into a Memo of Understanding (for short 'MoU') with the respondent company and it is obligatory upon the State to extend all necessary assistance in procuring optimum land in favour of the respondent company. The land in question shall be given to the respondent company on lease after acquisition. Whether public moneyis to be invested in the instant acquisition is a question that would arise at the time of actual acquisition. Clause 3.1 of the Industrial Policy ^3 I > .i (Annexure R-9) stipulates that the State Government would take all serious endeavors to ensure that upcoming industries in the State are provided with the rail facilities. Provisions of Part-VII of the Act, 1894 comes into play only at the time of issuance of declaration under Section 6 of the Act, 1894. In view of MoU of Annexure R-7, the State is bound to provide necessary land for construction of railway siding to the respondent company. Section 43 of the Act, 1894 clearly stipulates that Sections 39 to 42 of the Act, 1894 shall not apply where the State Government under the agreement is or was bound to provide land to a company. •'* 8. The respondent company in its separate reply has also opposed the petition by raising the similar grounds. 9. Learned Senior Counsel Mr. Oiwakar with Mr. Sanjay K Agarwal, Advocate for the petitioners in W.P. (c) Nos.5942/07, 5925/07 <& 6711/07 vehemently argued that from bare perusal of the undisputed documents available on record it would be evident that the acquisition proceeding was commenced on the basis of application by a private company for extending construction of railway siding. The petitioners are bonafide agriculturists and their agricultural lands are proposed to be acquired for a private company. It was obligatory and imperative for the appropriate Government to conduct enquiry through the Collector concerned and to obtain a report whether the company has made its endeavor to find out suitable land for acquisition; whether the company has made reasonable efforts to get such land by negotiation with the persons interested therein on payment of reasonable price and said efforts have failed and that the land proposed to be acquired is suitable for the purpose; the proposed land to be acquired is not excessive; the company is in a position to utilize the land expeditiously and lastly, whether the land proposed to be acquired is agricultural land and no alternative ^- z^ suitable site can be found so as to avoid acquisition. However, in the instant case, no such enquiry was ever made, as the same is to be made after affording opportunity of hearing to the land owners also. Thus, issuance of notification under Section 4 of the Act, 1894 without any enquiry under Rule 4 of the Rules, 1963 is bad and unsustainabte in law. It was further argued that the acquisition for the private company has been commenced without following Part-VII of the Act, 1894, as the compensation to be awarded for the acquisition has been entirely borne and paid by the company and no part of compensation has been paid fully or partly out of public revenue and therefore, the acquisition proceeding and notification under Section 4 of the Act, 1894 is bad in law because the same has been commenced without following the procedure prescribed in Part VII of the Act, 1894 as well as the Rules, 1963. The 'public purpose' as mentioned in the notification under Section 4 of the Act, 1894 is not the public purpose within its meaning under Section 3 (f) of the Act, 1894 and so far as the argument advanced by the respondents that Section 3 (f) of the Act,1894 was amended by CP <& Berar Act No.20 of 1949, called as Central Province <& Berar Resettlement & Rehabilitation of Displaced Persons (Land Acquisition) Act, is concerned, the same was enacted to make provisions for speedy acquisition of land and for resettlement and rehabilitation of the displaced persons. Definition of Section 3(f) of the Act, 1894 was amended as under:- "the expression "public purpose" includes the provision of land for agriculture or for residential, business or industrial purpose, or for any purpose incidental to any of these with a view to resettlement and rehabilitation of displaced persons" 10 The M.P. Extension of Laws Act, 1958 was enacted for providing extension to certain laws in force in some of the regions of Madhya Pradesh to other regions thereof as an Act 23 of 1958 and it came into force w.e.f. 12.9.1958. Act No.20 of 1949 was also made applicable to the State of M.P. by virtue of Act No.23 of 1958, however, the amended definition under Section 3 (f) of the Act, 1894 in the State of M.P. and now in the State of C.G. would not be applicable in the instant case, as the present is not a case of acquisition by the State Government for resettlement and rehabilitation of displaced persons. It was further argued that argument based on Section 43 of the Act, 1894 is not applicable in the present case because MoU entered into between the State and the respondent company is unenforceable under the law and therefore, Section 43 of the Act, 1894 has no application in the present case. MoU is a broad outline of the understanding between the Sovernment and the respondent company. Object of MoU is to reduce into wn'ting the broad understanding arrived at between the signatories; there was no legal & enforceable obligation on the part of the State to provide land' to the respondent company. 10. Ar. H.B. Agarwal, Sr. Advocate with Mr. Pankaj Agarwal, Advocate for the petitioner in W.P. (c) No.6787/07 and Mrs. Meena Shastri, Advocate for the petitioners in W.P. [c] No.6603/07 <& 6597/07 also adopted the arguments advanced by Mr. Diwakar and made similar submissions, 11. On the other hand, Mr. Ravishankar Prasad, Senior Advocate with Mrs. Suparna Shrivastava & Mr. Bhaskar Pyasi, Advocates for the respondent-Lafarge India Pvt. Ltd., vehemently argued that the respondent company has contributed to the State to a great extent by investing huge 11 z^ -( » -i i amount in establishing two cement plants in Raipur <& Janjgir- Champa districts. The present dispute pertains to their plant located at Raipur District. Industry of the respondent company does not have any rail link to a railway siding and manufactured products are being transported by road movements to the siding situated at a distance of 32 kilometers from the plant. Considering this problem, proposal for rail link was submitted, which was duly accepted by the other respondents keeping in view the public purpose involved in it. Paragraph No.3.1 of the Industrial Policy of the State (Annexure R-9) clearly envisages that the State shall take necessary. steps to ensure availability of infrastructure such as railway-road etc. Apart from the above policy of the State, the State Government has also executed a MoU with the respondent company (Annexure R-7) which also contemplates that necessary assistance to facilitate in procuring optimum land, free from all encumbrances, as required for implementation of the projects of the respondent company including land required to build railway line and railway sidings for present and future plant sites would be provided. Thus, it is obligatory on the part of the State Sovernment to provide land for rail link to rail siding. Since the State stands committed under the policy and MoU, it was obligatory on the part of the State to acquire the necessary land for the purposes of railway siding of the respondent company. Even otherwise definition of 'public purpose' as given in Section 3(f) of the Act, 1894 is an inclusive definition and it is settled law that the concept of public purpose keeps on changing with the needs and demands of time and it is better left to the State Sovernment to decide as to what is public purpose, Amended definition of Section 3(f) of the Act, 1894 applicable in the erstwhile State of M.P., which has been duly saved under Sections 79 & 12 23^ -( {• 80 of the M.P. Reorganization Act, 2000 and clearly shows that industrial purpose is also a 'public purpose'. Placing reliance on the various judgments of the Hon'ble Supreme Court it was argued that it is settled law that the Government has sole discretion to lay down the policy. Where the State Government has framed the industrial policy and according to which the land is to be provided for industrial growth of the State, then any action, on the part of the State for acquisition of land for the above purpose would be a public purpose. The respondent company has submitted a rehabilitation policy for the* persons affected by the proposed acquisition according to which ex- gratia amount of Rs.10.000/- per family and employment in the cement plant of the respondent company to one member of such family, which has been rendered landless, is to be provided. This rehabilitation is in addition to the land acquisition compensation to the project affected families. It was further vehemently argued that the present petitions are premature. Impugned notification under Section 4 of the Act, 1894 covers approximately 74 hectares of private land of 212 land owners. Outof 212 land owners only 8 have approached this Court with respect to their lands holding of 7.314 and out of 8 land owners, two have already withdrawn their petitions and the present petitions covers an area of 3.83 hectares only. Objections of the petitioners mainly is for enhancement of the compensation and not against the land acquisition proceeding. Since the petitioners have not taken recourse to Section 5A of the Act, 1894, the instant petitions are not maintainable being premature. Details of land such as Khasra number, area etc are required to be given at the stage of issuance of declaration under Section 6 of the Act, 1894 and notification under 13 z^% -{ » < ^' ^ Section 4 of the Act, 1894 cannot be faulted only because of absence of above details. Even otherwise the details of land along with area have already been mentioned in Annexure R-2 & R-3. So far as the competency of the Collector to issue notification under Section 4 of the Act, 1894 is concerned, the State Government has already issued notification dated 3.9.2003 authorizing the Collector of a district in his, capacity as ex-officio Deputy Secretary to the Sovernment of C.6. to deal with the cases of land acquisition and to exercise powers under Sections 4 & 6 of the Act, 1894. Adverting to Section 43 of the Act, 1894 it was argued that where the Central Sovernment or any State Sovernment under any agreement with such company is or was bound to provide land, Sections 39 to 42, both inclusive, shall not apply to the acquisition proceeding. Since the State has entered into MoU with the respondent Company and industrial policy of the State also envisages that the Government shall provide optimum land for construction of railway siding, it is obligatory on the part of the Government to provide land for implementation of the projects. It is not in dispute that the respondent Company deposited the required amount with the CSI&C, designated nodal agency, for the present land acquisition and this money has been forwarded by the CSIDC to the Ministry of Industries vide Annexure P-6. Referring to Explanation-2 of Section 6 of the Act, 1894 it was argued that the compensation to be awarded for such property is to be paid out of the funds of the CSIDC, ownedand controlled by the State, and thus the compensation is to be deemed to be compensation paid out of public revenue. IL 14 -( * x »-' ^3^ i r With respect to the ground of the petitioners that no enquiry under Rule 4 (1) of the Rules, 1963 has been conducted by the Collector, it was argued that in the instant case the acquisition is for the public purpose and therefore, question of application of Rule 4 read with Section 40 of the Act, 1894 does not arise. Distinguishing the judgment of the Hon'ble Supreme Court in the matter of Devinder Singh & others Versus State of Punjab and others it was argued that in the above matter the State Sovernment made categoric admission that project would come under Section 40 of the Act, 1894 and therefore, it was held that it was mandatory to follow Chapter VII procedure including compliance of Rule 4 of the Rules, 1963. However, in the instant case it is the stand of the State in their return that acquisition is for public purpose. In any case, enquiry under Rule 4 need not precede Section 4 notification. Relying upon the judgment in the matter of Fomento Resorts & Hotels Vs. 6ustavo Runato de Cruz Pinto & others it was argued that enquiry under Rule 4 need not precede Section 4 notification and it is not mandatory to conduct Rule 4 enquiry before Section 4 notification. 12. Mr. Mishra, learned Advocate Seneral with Mr. Bajaj, learned Government Advocate for the State o.pposing the petitions advanced similar arguments as advanced on behalf of the respondent Company. 13. The petitioners have impugned the constitutionality of the land acquisition proceeding with particular references to the impugned notification under Section 4 of the Act, 1894. The petitioners have raised number of questions of law to impugn the impugned notification for acquisition. Firstly, it has been urged that the