IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.03.2008 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.36037 of 2007 M.Arularasan ... Petitioner .Vs. 1.The State of Tamil Nadu rep. by its Secretary Industry Department Fort St.George Chennai 600 009 2.The District Collector Cuddalore District Cuddalore 3.The Neyveli Lignite Corporation rep. by its Chairman Neyveli ... Respondents Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the respondents to provide alternative land and other rehabilitation measures as contemplated under the National policy on Resettlement and Rehabilitation of project affected Families, 2003 in respect of land comprised Survey No.35/4 in Keelpathi village, Virudhachalam taluk acquired in Notification at Page No.13-14 of Part 7 Section 2 of the Tamil Nadu Government Gazette No.159 dated 7.7.2006. For Petitioners : M/s.K.Sakthivel For Respondents : Mrs.D.Geetha Government Advocate (for R1 and R2) Mr.N.A.K.Sharma (for R3) https://hcservices.ecourts.gov.in/hcservices/ O R D E R 1.(i)The writ petitioner has purchased 0.40 cents of land in Survey No.35/4 in Keelpathi Village, Kammapuram Union, Cuddalore District in the year 2002 and according to him after purchase he has constructed a house measuring an extent of 300 sq.ft., in the same year after obtaining permission from the Village Panchayat. He has also got electricity service connection and living in the building from 2002 with his family. (ii)The second respondent by invoking powers under Section 3 of the Tamil Nadu Acquisition of Land for Industrial Purpose Act, 1997 (Act 10/99) sought the petitioner's reply for the proposed acquisition of the abovesaid property. It is admitted that the petitioner has consented for acquisition, however, on the basis that there will be a rehabilitation and resettlement along with the compensation. (iii)According to the petitioner, the second respondent has recorded the same and promised to provide suitable rehabilitation. Thereafter, a notification was published as per Section 3 of the Act in the Government Gazette dated 7.7.2006 acquiring the lands. The petitioner like other similarly situated persons has been under the impression that he will be entitled for the rehabilitation programme as per the National Policy for Resettlement and Rehabilitation Programme of 2003. When the award proceedings were pending as per Section 7 of the said Act, the petitioner again represented for rehabilitation. The Special Tahsildar (Land Acquisition), Neyveli issued a cheque in favour of the the petitioner for a sum of Rs.1,05,347/- in September 2006 for compensation and thereafter, notice was issued as per Rule 9 directing the petitioner to surrender and deliver possession. The petitioner has been under the impression that the possession will be directed to be surrendered only after rehabilitation is completed since he has no other place to go. The acquisition is for the benefit of the 3rd respondent, Neyveli Lignite Corporation who is engaged in mining lignite over 10,000 hectares which have been acquired since 1956. Therefore, according to the petitioner, in addition to the statutory compensation as promised by the respondents 2 and 3, he is entitled for the rehabilitatory measures as per the scheme framed by the Government of India which is a national policy. The national policy of the year 2003 which was published in the Gazette of India, Extraordinary Part-I, Section No.46 dated 17.2.2004 aims on minimising the large scale displacements to the extent possible. The policy also essentially addresses the need to provide succor to the rural poor and also downtrodden people like small and marginal https://hcservices.ecourts.gov.in/hcservices/ farmer, SCs/STs and women who have been displaced. As per the said national policy an administrator for resettlement and rehabilitation has to be appointed for every project who will identify the non- displacing or least displacing alternatives in consultation with the requiring body, hold consultation with the project affected families while preparing a resettlement and rehabilitation scheme, ensure interest of adversely affected families, prepare a draft plan/scheme of resettlement and rehabilitation, prepare a budget including estimated expenditure of various components of acquisition of land regarding resettlement, acquire adequate land for the project, allot land and sanction benefits and to perform any other incidental functions thereon. (iv)As per the scheme, the administrator has to survey within 90 days and should submit a report to the State Government which has to be published by the State Government within 45 days. (v)According to the petitioner, in spite of the National Policy of 2003, the respondents have not implemented the same. In the meantime, the third respondent proposed to have the second mining inspection and proposed to acquire land to an extent of 5407-34-00 hectares in some of villages in Chidambaram, Virdhachalam and Panruti Taluk and the second respondent has also submitted a proposal on 9.1.2005. (vi)It is the case of the petitioner that on the recommendation of the District Collector, the first respondent has issued G.O.Ms.No.66, Industries (M.A.) Department dated 17.05.2005 according revised administrative sanction for acquisition of 1929.28.83 hectares of land under the provisions of Tamil Nadu Acquisition of lands for Industrial Purpose Act, 1997 and the order of the 1st respondent directed the third respondent to follow the National Policy for resettlement and rehabilitation. The conduct of the 3rd respondent in proposing to acquire more land for its benefit without maintaining rehabilitation scheme affects the interest of many persons like the petitioner and therefore the petitioner filed the writ petition for a direction against the respondents to provide alternative land and other rehabilitation measures as contemplated under the National Policy of Resettlement and Rehabilitation of projects affected families of 2003 in respect of the land comprising Survey Number 35/4 acquired in Keelpathi Village, Virudhachalam taluk acquired in Notification at Page No.13-14 of Part 7 Section 2 of the Tamilnadu Government Gazette No.159 dated 7.7.2006. 2. (i)The Deputy General Manager, Land Acquisition Department of the 3rd respondent, National Lignite Corporation has filed counter. According to the 3rd respondent the National Project of https://hcservices.ecourts.gov.in/hcservices/ resettlement and rehabilitation 2003 is a policy document of the Government of India giving broad guidelines which addresses the need to provide succor to the assetless rural poor and resource poor sections, namely, small and marginal farmers, SC/STs and women who have been displaced. (ii) According to the third respondent the National Policy is an overall policy and the same cannot be implemented half-way through unless and until after the completion of the entire work. As per the National Policy, the administrator has to be appointed by the State Government and in respect of the 3rd respondent such administrator shall be appointed in consultation with the Central Government and after the appointment of such administrator the affected zone is to be ascertained after taking survey to identify the details of the project affected families and other procedures. The States have not implemented the said National Policy of 2003 and the Government of Tamil Nadu has not appointed any Administrator so far. The third respondent itself is having a duly approved Resettlement and Rehabilitation Policy in 1998 which is in force. According to the 3rd respondent, the petitioner's property has been acquired in the manner known to law as per Act 10 of 1999 and award has been passed on 11.6.2007 and the petitioner has not objected about the acquisition at any point of time and after the award was passed the award amount of Rs.1,05,347/- has been disbursed to the petitioner on 14.8.2007 as per section 4 of the Tamil Nadu Act 10 of 1999. (iii) According to the 3rd respondent after publication of notice under Section 3(1) the acquired land vest with the Government free from all encumbrances from 7.7.2006. Thereafter, Form-E as per rule 9 read with section 4(2) was issued and served on the petitioner. Therefore, the petitioner is under legal obligation to surrender possession of the property within 30 days from the receipt of the said notice. In case of failure of surrender of possession under Section 4(3) of the Act, the Collector is entitled to take possession. The presence of National Policy by which rehabilitation is provided for does not enable the petitioner to continue to be in possession since the land acquisition process has been completed under Act Tamil Nadu Act 10 of 1999. It is also denied by the 3rd respondent that the 3rd respondent has given any promise to provide alternate accommodation at the time of acquisition. The policy itself is on compassionate ground. Therefore, there is no question of third respondent going back from any promise. The resettlement and rehabilitation Policy is aimed at providing relief to genuinely displaced persons who are compelled to lose their livelihood owing to acquisition of their lands or house which is also the scheme of the national policy of 2003. The resettlement and rehabilitation benefits are not forming part of the Land Acquisition Act or Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Act 10/99 at all. It is the case of the third respondent that the petitioner if he is really entitled as per the scheme he will be provided alternate accommodation. It is further submitted that as far as the petitioner's property is concerned even as per the sale deed by which he has purchased the property it is described as an agricultural land and therefore it is not a dwelling home and in these circumstances providing of alternate accommodation immediately does not arise and other documents provided by the petitioner including ration card have been obtained after the acquisition proceeding have been completed and therefore the authority contemplated has to verify the correctness of the same. It is also the further case of the 3rd respondent that the Government of India in October 2007 has published in the Official Gazette National Rehabilitation and Resettlement Policy 2007. It is an improved version of the 2003 national policy. It is pursuant to the said 2007 national policy of the Central Government, the Tamil Nadu Government has appointed District Collector, Cuddalore as Administrator for Resettlement and Rehabilitation policy and the formal notification is awaited. It is also specifically stated by the third respondent that it is the intention of the Corporation to implement NRRP 2007 not only in respect of future land acquisition but also in cases where possession is yet to be taken. It is made clear that in the event of the petitioner becomes eligible to the benefits under the National Policy he will be given the same. 3. Mr.K.Sakthivel, learned counsel for the petitioner would vehemently submit that the very purpose of the NRRS Policy of 2003 is to provide rehabilitatory measures to the project affected families and the petitioner is one of the project affected families. As per the national policy he is entitled to remain in possession of the property till the alternate accommodation is given to him or in short the basic contention is that the Tamil Nadu Act 10/1999 is to be read along with the National Rehabilitation and Resettlement policy of 2003. 4. On the other hand it is the contention of Mr.N.A.K.Sharma, learned counsel for the 3rd respondent that the acquisition of the properties have been for the benefit of the 3rd respondent and the entire procedure as contemplated under Tamil Nadu Act 10 of 1999 have been followed and in fact the petitioner himself has consented for acquisition and received the compensation amount after award passed. In such circumstances, as per Act 10 of 1999 it is the legal duty on the part of the petitioner to hand over possession. The rehabilitation policy of the Government has nothing to do with the acquisition. He also made it clear that by handing over possession of the property as per the Tamil Nadu Act 10 of 1999 the petitioner does not loose his right if he is eligible as per the https://hcservices.ecourts.gov.in/hcservices/ resettlement policy whether it is of the year 2003 or 2007. The learned counsel would further contend that the mere fact that the petitioner may be entitled for a rehabilitatory measure does not mean that he could be allowed to retain possession of the property for which adequate compensation has been paid. The learned counsel would also submit that it has never been the case of the petitioner that till alternate accommodation is given he will not handover possession. 5. I have heard the learned counsel for the petitioner and the respondents and perused the entire records. 6. (i)It is not in dispute that the property in question belonging to the petitioner was acquired under the provisions of Tamil Nadu Acquisition of land for Industrial Purpose Act 1997. Under Section 4(1) of the Act 10 of 1999 when once the notice under Section 3(1) is published in the Tamil Nadu Gazette the land to which the notice relates vest with the Government absolutely free from all encumbrances. However, the owner and other persons interested shall be entitled to the payment of amount determined in accordance with Section 7 of the Act if any damages have been caused. (ii)Section 4(2) empowers the Government to direct any person who is in possession after the order passed under Section 4(1) to surrender and deliver possession to the Collector within 30 days from the service of the order. "Section 4 reads as follows: 4.Land acquired to vest in Government free from all encumbrances.-(1)When a notice under sub-section (1) of section 3 is published in the Tamil Nadu Government Gazette, the land to which the said notice relates shall, on and from the date of such publication, vest absolutely in the Government free from all encumbrances: Provided that if before actual possession of such land is taken by, or on behalf of, the Government, it appears for the Government, that the land is no more required for the purpose of this Act, the Government may, by notice published in the Tamil Nadu Government Gazette, withdraw the land from acquisition. On the publication of such notice, the land shall revest with retrospective effect in the person from whom it was divested on the issue of order under sub-section (1) of section 3, subject to such encumbrances, if any, as may be subsisting at that time: Provided further that the owner and other persons interested shall be entitled to payment of an amount as https://hcservices.ecourts.gov.in/hcservices/ determined in accordance with the provisions of section 7 for the damage, if any, suffered by them in consequence of the acquisition proceedings. (2) Where any land is vested in the Government under sub-section(1), the Government may, by order, direct any person who may be in possession of the land to surrender or deliver possession thereof to the Collector or any person duly authorised by him in this behalf within thirty days of the service of the order. (3) If any person refuses or fails to comply with an order made under sub-section(2), the Collector may take possession of the land, and may, for that purpose, use such force as may be necessary." (iii) Under Section 7 of the Act the Collector determines the amount of compensation which is as per the powers given under the Land Acquisition Act 1894 (Central Act of 1894)and the further procedure for the purpose of decision of compensation in detail is explained under the said provision and thereafter Section 8 provides for reference to Court. Section 10(i) contemplates a duty on the part of the Government to pay the amount so fixed by the Collector as compensation to the land owner. The Act also enables the Officers of Government to enter into property and if any body obstructs, Section 17 provides for penalty for such obstruction and the Civil court jurisdiction has been barred under Section 18 of the Act. (iv) In view of the admitted position that the acquisition of the properties belonging to the petitioner have been completed as per Act 10 of 1999 and therefore there is obligation on the part of the petitioner to surrender possession of the property to the respondents. The question to be considered as contended by the learned counsel for the petitioner is as to whether the petitioner is entitled to remain in possession on the ground that the Government of India has framed the National policy of Rehabilitation and Resettlement scheme in 2003 and subsequently in 2007. (v) On a reading of the National policy of 2003 and 2007 it is clear that there is obligation on the part of the respondents to follow the same in identifying the persons who are eligible for the benefits under the said National Policy and provide for reliefs as stated therein. (vi) A reference to the National Policy of 2007 shows that there has been some impediment in implementing the earlier policy of 2003 and on review of the earlier policy, the 2007 policy came into existence. In fact the policy states that in case of acquisition for public purpose minimum large scale displacement as far as https://hcservices.ecourts.gov.in/hcservices/ possible has to be implemented, with the result the minimum area of land necessary for the purpose of the project has to be acquired. (vii)Clause No.2 of the said policy which speaks about the objectives of National Rehabilitation and Resettlement Policy which is as follows: "2. Objectives of the National Rehabilitation and Resettlement Policy 2.1 The objectives of the National Rehabilitation and Resettlement Policy are as follows:- (a) to minimise displacement and to promote, as far as possible, non-displacing or least-displacing alternatives; (b)to ensure adequate rehabilitation package and expeditious implementation of the rehabilitation process with the active participation of the affected families; (c)to ensure that special care is taken for protecting the rights of the weaker sections of society, especially members of the Scheduled Castes and Schedules Tribes, and to create obligations on the State for their treatment with concern and sensitivity; (d) to provide a better standard of living, making concerted efforts for providing sustainable income to the affected families; (e)to integrate rehabilitation concerns into the development planning and implementation process; and (f) where displacement is on account of land acquisition, to facilitate harmonious relationship between the requiring body and affected families through mutual cooperation. A reference to the said objectives clearly shows that it applies in case of future acquisition by minimising duty on the part of the acquiring authorities to see that minimum displacement is effected. But in respect of the lands already acquired by way of beneficiary project in the form of package, the affected families are given rehabilitation. However, taking special care about the plight of the worker section of the society, especially, members of the Scheduled Caste and Scheduled Tribe and to provide a better standard of living, the policy also provides for appointment of an Administrator who will have to make survey and also identify the persons who are entitled for rehabilitation. https://hcservices.ecourts.gov.in/hcservices/ (viii)In the present case as it is submitted by the learned counsel for the third respondent, the Collector of Cuddalore has been appointed as an Administrator and the same has to be notified. Therefore, it is clear that after notification, the Collector identifies the persons who are eligible beneficiaries as per the scheme. (ix) Clause 6.17 of the National Policy states that the administrator has to draft a scheme by which the appropriate Government must obtain consent from the requiring body who shall bear the expenses for rehabilitation and settlement of the affected families. The said clause is as follows: "6.17 The Administrator for Rehabilitation and Resettlement shall submit the draft scheme or plan for rehabilitation and resettlement to the appropriate Government for its approval. In case of a project involving land acquisition on behalf of a requiring body, it shall be the responsibility of the appropriate Government to obtain the consent of the requiring body, to ensure that the necessary approvals as required under this policy have been obtained, and to make sure that the requiring body has agreed to bear the entire cost of rehabilitation and resettlement benefits and other expenditure for rehabilitation and resettlement of the affected families as communicated by the Administrator for Rehabilitation and Resettlement, before approving it." The policy also empowers the persons who have acquired any right prior to the date of issue of notification under the Land Acquisition Act as per the updated records shall be also eligible for a proportionate compensation along with the original land owners whose names are mentioned in the notification. (x) Clause 7.2 also mandates that the affected family owning a house which was acquired is entitled for a free house site as stated hereunder: "7.2.Any affected family owning house and whose house has been acquired or lost, may be allotted free of cost house site to the extent of actual loss of area of the acquired house but not more than two hundred and fifty square metre of land in rural areas, or one hundred and fifty square metre of land in urban areas, as the case may be, for each nuclear family:' https://hcservices.ecourts.gov.in/hcservices/ (xi) Clause 7.16 also enables the affected family displaced involuntarily to have certain allowance and the said clause is extracted hereunder: "7.16 In case of a project involving land acquisition on behalf of a requiring body, each affected family which is involuntarily displaced shall get a monthly subsistence allowance equivalent to twenty-five days minimum agricultural wages per month for a period of one year from the date of displacement." (xii)The National Policy in Chapter VII also provides grievance redressal mechanism in cases where really deserving families are not able to be rehabilitated and ombudsman have also been appointed for the purpose of redressal of grievance. That apart, the scheme contained a monitoring mechanism with the national merit committee. (xiii)Therefore, an overall reading of the National Rehabilitation and Resettlement Policy of 2003 and 2007 makes it very clear that the carefulness with which the land acquisition is made from the date of the said National Policy must be to the extent of minimum requirement while acquiring. However, in respect of the properties already acquired a scheme has to be necessarily formulated by the administrator and only thereafter a proposal for acquisition of fresh lands in order to provide house sites to those owners whose properties have been acquired for the benefit of the third respondent-Neyveli Lignite Corporation has to be worked out in the form of a scheme and after the cost is arrived at it has to be borne by the third respondent which is the requiring body. Therefore, it requires a procedure to be followed and therefore, there is no difficulty to come to the conclusion that the T.N.Act 10 of 1999 is different and distinct from the national policy under which the petitioner claims the benefit. (xiv) The judgment relied upon by the learned counsel for the petitioner in RAI SAHIB RAM JAWAYA KAPUR AND OTHERS V. THE STATE OF PUNJAB (1955 (2) SCR 225) arose in the context where the petitioner who has invoked the jurisdiction of the Hon'ble Supreme Court under Article 32 of the Constitution of India for withdrawal of the notifications issued by the State Government in the year 1950 and 1952. That was relating to the Government charging royalty on the sale price of all approved textbooks given in the notification. The term "publishers" was omitted while "authors and others" have been directed to submit books for the approval by the Government. Since by virtue of the said restriction authors publishers were included it deprived the publishers of getting royalty of 5%, the same was questioned as violative of article 19(1)(g) of the Constitution of https://hcservices.ecourts.gov.in/hcservices/ India. It was in that context the Supreme Court has held that such notification can be treated as executive instruction under Article 73 in respect of the Central Government and under Article 163 in respect of State Government and therefore, it was while deciding the competency of the Government under the abovesaid provisions of the Constitution of India, the Supreme Court has upheld the notifications which is as follows: "Articles 73 and 162 of the Constitution do not contain any definition as to what the executive function is and what activities would legitimately come within tis scope. they are concerned primarily with the distribution of executive power between the Union on