IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 505 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE KSHITIJ R.VYAS and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MANSINGHBHAI NAROTTAMBHAI VASAVA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 505 of 2003 MR R VENKATARAMANI, SR. COUNSEL with MR JOY MATHEW for Petitioner No. 1-12 MR AMIT KOTAK, AGP for Respondent No. 1, 3 and 4 MR KM PATEL for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 09/05/2003 CAV JUDGEMENT (Per : MR.JUSTICE AKSHAY H.MEHTA) 1. At the stage of admission hearing we have been informed by learned counsels appearing for the parties that the pleadings in this petition are complete and looking to the controversies that are involved in it, the petition is required to be finally decided. Hence, Rule. Mr. Amit Kotak, the Ld. AGP appearing for respondent no. 1 - State and Mr. K.M. Patel, the learned counsel appearing for respondent no. 2 - Gujarat Mineral Development Corporation (GMDC) waive service of the rule. The petition is heard fully and now it is being disposed of by this CAV judgment. 2. This petition is filed for claiming reliefs to declare that the acquisition of the petitioners' lands without prescribing for an adequate scheme for rehabilitation and resettlement is arbitrary, unreasonable and violative of Article 14, 19 (1) (d), (e) and 21 read with Articles 39, 39(b), 39A and 46 of the Constitution of India; and to direct the respondents by issuing appropriate writ, order or direction to take adequate measures to provide the petitioners appropriate site for resettlement and means to rehabilitate them; further that notifications issued u/S. 4 dated 20/11/2000 and u/S. 6 dated 7/1/2002 and notice issued u/S. 9(3) and (4) dated 10/4/2002 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the L.A. Act') be quashed and set aside, and other reliefs which are ancillary to these main reliefs including refixation of market price of the lands in question. 3. To determine the controversies arising in this petition, which is filed under Article 226 of the Constitution of India, certain facts are required to be stated and they are as under :- 3.1. According to the petitioners, they belong to Scheduled Tribes and are residents of village Amod in Jhagadia Taluka, District Bharuch. According to them, the population of this village consists of members of Scheduled Tribes like the petitioners. They do not have any particular means to maintain themselves. Some of them cultivate the lands or some of them do labour work in the fields and others do miscellaneous type of work. Village Amod has a Gram Panchayat comprising villages Amod, Maljipura and Bhuri. 3.2. It is further averred that lands of the petitioners and other residents of village Amod were sought to be acquired for mining purposes which may be carried out by respondent no. 2 for excavating lignite. The petitioners' grievance is that the acquisition is made without following the provisions of law and without taking any measures to resettle and rehabilitate the persons whose lands are sought to be acquired. Their further grievance is that even adequate market price of the land in question is not being offered to them towards compensation. In view of this, they have sought for the aforesaid reliefs. 3.3. It appears from the record of the petition that the land in question is already acquired for respondent no. 2. Respondent no. 2 is Government of Gujarat Undertaking which is incorporated under the provisions of the Companies Act, 1956. The share holding in respondent no. 2 of the Government of Gujarat is 100%. The main object for which it is incorporated is to carry out the projects of mining work of mineral. It is also engaged in other manufacturing activities. The major work which is normally undertaken by the respondent no. 2 is procuring lignite for the purpose of selling it to the industries. We are informed that lignite is catering to the needs of the industries as substitute to industrial coal. One such lignite project is in Rajpardi in Jhagadia Taluka, Bharuch District. 3.4. For this purpose the lands of village Amod were required to be acquired and hence the State Government through Special Land Acquisition Officer initiated proceedings under the L.A. Act and issued notification u/S. 4 of the L.A. Act dated 20th November, 2000. Subsequently on 7th January, 2002 notification u/S. 6 of the L.A. Act was issued and thereafter on 10th April, 2002 notices u/S. 9(3) and (4) of the L.A. Act were issued individually to the land owners. The award u/S. 11 of the L.A. Act is made in February 2003 and this petition has been filed some time prior to it i.e. on 23rd January, 2003. It also appears from the record that many of the land owners have accepted the award and received compensation, details of which will be referred to at appropriate place. The petitioners, however, have declined to do so and they have approached this Court. 4. We have heard Mr. R. Venkataramani, learned senior counsel appearing with Mr. Joy Methew for the petitioners, Mr. Amit Kotak, Ld. AGP for respondent no. 1 and Mr. K.M. Patel, learned counsel for respondent no. 2. 4.1. According to Mr. Venkataramani, the present lands are of the ownership of members of the scheduled tribes and, therefore, voters of the Gram Sabha of Amod Group Gram Panchayat were required to be consulted in view of the provisions of section 4 of the Panchayat (Extension to the Scheduled Areas) Act, 1996 (hereinafter referred to as 'the Extension Act'). He has further submitted that the Extension Act has been enacted by the Parliament by virtue of the powers conferred on it vide Article 243M clause (b) as it empowers the Parliament to enact law, making provisions of Chapter IX of the Constitution applicable to the scheduled area. He has drawn our attention to clause (i) of section 4 of the Extension Act, which envisages that the Gram Sabha or the Panchayat at the appropriate level shall be consulted before making the acquisition of land in scheduled area and has submitted that the consultation required under that clause before initiating the acquisition proceedings in the present case is not made. He has further submitted that in view of the provisions of section 4 of the Extension Act, the State Government has brought about amendment in the Panchayat Act by enacting the Gujarat Panchayats (Amendment) Act, 1998. He has drawn our attention to section 13 of the Amendment Act whereby section 132-A is sought to be introduced in the Gujarat Panchayats Act, 1993 (hereinafter referred to as 'the Act'). Section 132 A of the Act states that Taluka Panchayat be consulted before acquisition of land and rehabilitation of persons affected. According to him, since section 132-A of the Act does not provide for consultation with Gram Sabha, it is not in full compliance with the requirement of clause (i) of section 4 and there is a deficiency in the said provision. According to him, any acquisition of land in scheduled area at the village level made without prior consultation of the Gram Sabha is against the object of provisions of section 4 of the Extension Act and such acquisition cannot stand. The second limb of his contention is that the consultation which is envisaged in clause (i) of section 4 of the Extension Act and section 132-A of the Act has to be fruitful, meaningful and after complete exchange of views and anything falling short of it cannot be considered to be a consultation in the eye of law. In support of this contention, he has placed reliance on several decisions, reference to which will be made in the course of this judgment. His third submission is that the lands are situated in the scheduled area and they belong to the members of scheduled tribe and, therefore, they cannot be alienated or transferred to any person including a Government Corporation. In support of this contention, he has placed heavy reliance on the decision rendered by the Apex Court in the case of Samatha v/s. State of Andhra Pradesh reported in AIR 1997 S.C. p. 3297. Lastly he has submitted that the provisions of Extension Act require that the persons affected by the acquisition are to be resettled and rehabilitated. However, in the present case no measures in that direction have been taken and, therefore, the respondents have failed to comply with the mandatory provisions of the Act which may vitiate the acquisition proceedings. 4.2. So far the respondent no. 1 is concerned, no submissions have been made by the Ld. AGP except drawing our attention to the two short affidavits that have been filed on behalf of it. 4.3. Mr. K.M. Patel, learned counsel appearing for the respondent no. 2 - GMDC, however, has vehemently contested this petition. He has submitted that in view of provisions of section 132-A i.e. the amended provision of the Act, consultation with Gram Sabha is not at all required. According to him, the law requires that the acquiring authority should have consultation with the Taluka Panchayat and in the instant case Jhagadia Taluka Panchayat has been consulted, which has granted its consent for acquisition. He has further submitted that the new provision of law enacted by the State Government, namely u/S. 132-A of the Act is purely in accordance with clause (i) of section 4 of the Extension Act which prescribes that Gram Sabha or Panchayat at the appropriate level be consulted before acquiring any lands situated in scheduled area. He has submitted that the said clause only requires that either Gram Sabha or Panchayat at appropriate level is required to be consulted and, therefore, the State Government was fully justified in providing consultation with Taluka Panchayat alone and there is no deficiency or shortfall in that provision. He has further contended that most of the land owners have accepted the award which is made u/S. 11 of the L.A. Act and they have also received the compensation. According to him, the petitioners have vested interest in the lands and, therefore, they have approached this Court for collateral purpose. He has also contended that so far the rehabilitation and resettlement is concerned, no such question arises in this case. The lands which are acquired are agricultural lands and most of the land owners have their houses in the village Amod, from where they are not disturbed and for the agricultural lands they have been awarded compensation which is on much higher side, which also takes care of the deprivation of their livelihood. He has further contended that the ratio laid down by the Apex Court in Samatha's case (supra) will not be applicable to the present case as the provisions of law here are different and no such absolute prohibition is in the Gujarat enactment. He has further submitted that the petitioners have approached this Court at much belated stage. By now the award is already made. The respondents are in possession of major portion of the lands, but they are not able to begin the mining operations because of the hindrance created by the unavailability of the petitioners' lands. He has further submitted that because of the delay the Corporation is incurring heavy expenditure without any fruitful results and further that the lignite which was available in other parts of this area has got almost exhausted requiring mining operations in the lands in question. The industries are also suffering from the shortage of lignite. He has further submitted that the present petition be dismissed. 5. To appreciate the rival contentions, we have carefully gone through the record of the petition and also the provisions of relevant law. We may first direct our attention to Chapter IX of the Constitution. This Chapter contains different provisions relating to the Panchayats. Article 243 defines certain expressions appearing in this Chapter. Clause (b) of Article 243 defines 'Gram Sabha'. It states - "Gram Sabha" means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level" Clause (d) defines 'Panchayat' as under :- "panchayat" means an institution (by whatever name called) of self-government constituted under article 243B, for the rural areas." Article 243A provides that Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may by law provide. Article 243B provides for constitution of Panchayats. Sub-article (1) thereof prescribes that there shall be constituted in every State, Panchayats at the village, intermediate and district levels. Article 243C provides for powers, authority and responsibilities of panchayat. Article 243M states that this part of the Constitution shall not apply to scheduled areas referred to in clause (1) and the tribal areas referred to in clause (2), of Article 244. However, clause (b) of sub-article (4) of Article 243M provides as under :- "(4) Notwithstanding anything in this Constitution,- (a) xxx xxx xxx (b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368." 5.1. Thus the Parliament has been vested with the powers to enact law to make the provisions of Chapter IX of the Constitution applicable to the scheduled areas. Pursuant to these powers, the Parliament has enacted Extension Act which has come into force with effect from 24th December, 1996. Section 4 of the Extension Act, which is relevant for the purpose of decision of this petition, is reproduced as under :- "4. Exceptions and modifications to Part IX of the Constitution : Notwithstanding anything contained under Part IX of the Constitution, the Legislature of a State shall not make any law under that Part which is inconsistent with any of the following features, namely : (a) a State Legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources; (b) a village shall ordinarily consist of a habitation or a group of habitations or a hamlets or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs; (c) every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level; (d) every Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution; (e) every Gram Sabha shall (i) approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level; (ii) be responsible for the identification or selection of persons as beneficiaries under the poverty alleviation and other programmes; (f) every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds by that Panchayat for the Plans, programmes and projects referred to in clause (e) (g) the reservation of seats in the communities in that Panchayat for whom reservation to the population of the communities in that Panchayat for whom reservation is sought to be given under Part IX of the Constitution Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats; (h) The State Government may nominate persons belonging to such Scheduled Tribes as have no representation in the Panchayat at the intermediate level or the Panchayat at the district level Provided that such nomination shall not exceed one tenth of the total members to be elected in that Panchayat; (i) the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before setting or rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the state level; (j) planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate level; (k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas; (l) the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of concession for the exploitation of minor minerals by auction; (m) while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with - (i) the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant; (ii) the ownership of minor forest produce; (iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe; (iv) the power to manage village markets by whatever name called; (v) the power to exercise control over money lending to the Scheduled Tribes; (vi) the power to exercise control over institutions and functionaries in all social sectors; (vii) the power to control over local plans and resources for such plans including tribal sub plans; (n) the State legislations that may endow Panchayats with powers and authority as may be necessary to enable them to function as institutions of self-government shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level of the Gram Sabha; (o) the State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas." The statement of objects and reasons of the Extension Act, which has been published in the Gazette of India, Extraordinary Part-II dated 11th December, 1996, shows that the said Act was being introduced in view of the persistent demands of the prominent leaders of the scheduled areas for extending the provisions of Part IX of the Constitution to these areas so that Panchayati Raj institution may be established there. It states as under: "Accordingly, it is proposed to introduce a Bill to provide for the extension of the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas with certain modifications providing that, among other things, the State legislations that may be made shall be inconsonance with the customary law, social and religious practices and traditional management practices of community resources; every village shall have a Gram Sabha which shall be competent to safeguard and preserve the traditions and customs of the people and shall be vested with the powers to approve the programmes and projects for social and economic development as also identification of beneficiaries under such programmes; Panchayats at the appropriate levels shall be endowed with ownership of minor forest produce; recommendations of the Gram Sabha or the Panchayat at the appropriate level shall be made mandatory prior to grant of prospecting licenses or mining lease of minor minerals and shall be consulted before making acquisition of land in the Scheduled Areas for development projects or for resettlement of project affected members of the Scheduled Tribes; Panchayats at the appropriate level and the Gram Sabha shall have the power to prevent alienation of tribal lands and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe, have powers to regulate money lending to the members of the Scheduled Tribes, to manage village markets and to enforce prohibition or to regulate or restrict sale and consumption of any intoxicant; State legislations shall endow the Panchayats at the appropriate levels with specific powers and provide safeguards to prevent Panchayats at the higher level from assuming the powers and authority or Panchayats at the lower level or the Gram Sabha ; the Offices of the Chairpersons in the Panchayats at all levels shall be reserved for the Scheduled Tribes ; the reservation of seats at every Panchayat for the Scheduled Tribes shall not be less than one-half of the total number of seats." The statement of objects and reasons is self-explanatory, however, if it is perused vis-a-vis clause (i) of section 4 of the Extension Act, it appears that it was in contemplation of the legislature to provide for suitable provisions of law which may not only safeguard the lands situated in Scheduled Area but which may also ensure the settlement and rehabilitation of people of Scheduled Area in case they are likely to lose their land by or under any process of law. It, therefore, proposed to make two fold consultation with gram sabha or Panchayats at appropriate level compulsory i.e. before acquisition of land in Scheduled Area for the development project and before settling or rehabilitating the persons affected by such projects in Scheduled Area. Thus, even the acquisition of such lands under the provisions of the L.A. Act was proposed to be brought under the gaze of gram sabha or Panchayats at appropriate level so also the issue regarding settling or rehabilitating the persons likely to be deprived of their lands on account of such acquisition. The provision regarding the consultation has been duly incorporated in clause (i) of section 4. As stated above, in view of clause (i) of section 4 of the Extension Act, the State Government has amended the Act by the Amendment Act of 1998 and has introduced section 132-A, which is as under :- "132-A. Taluka panchayat to be consulted before acquisition of land and rehabilitation of persons affected.- Taluka panchayat shall be consulted,- (a) before acquiring under the Land Acquisition Act, 1894 (1 of 1894) any land situate in the taluka for any development project; (b) before resettling or rehabilitating persons affected by such project." The question before us is whether the provisions of section 132-A are as per the requirement of clause (i) of sec. 4 of the Extension Act or it is wanting in some respects. In other words, the consultation as required under that section with the Taluka Panchayat alone is adequate and as per the mandate of clause (i) of section 4 or there is some deficiency in it i.e. to the extent it dispenses with consultation with gram sabha. We may, therefore, again turn our attention to the statement of objects and reasons to find out legislative intent in this behalf. Statement shows that proposal with regard to the consultation before acquisition and proposal to make recommendations of gram sabha or panchayats at appropriate level mandatory prior to grant of prospecting licenses or mining lease or minor minerals, have been clubbed together, most probably because these subjects pertain to land in Scheduled Area. In the Central enactment i.e. the Extension Act this object or proposal has been divided into two clauses of section 4 viz. (i) and (k). Over and above this, clause (l) of section 4