AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8458 OF 2008 1. Dr. Bhikaji Jagannath Waghdhare, Indian Citizen residing at A/3, Satya Vijay Co-operative Housing Society, SPS Marg, Bhandup (East), Mumbai – 400 078 and at P.O. Madban Taluka Rajapur, District Ratnagiri. ) ) ) ) ) ) ) 2. Yashwant Dharmoji Gawankar, Indian Citizen residing at Post Madban, Taluka Rajapur, District Ratnagiri. ) ) ) ) 3. Shyamsunder Mahadev Narvekar, Indian Citizen residing at Post Madban, Taluka Rajapur, District Ratnagiri. ) ) ) ) 4. Premanand Vijay Tiwrekar, Indian Citizen residing at Post Madban, Taluka Rajapur, District Ratnagiri. ) ) ) ) 5. Anubhav Narayan Waghdhare, Indian Citizen residing at Post Madban, Taluka Rajapur, District Ratnagiri. ) ) ) ) ... Petitioners Versus 1. Union of India through the Department of Atomic Energy. ) ) AJN 2 2. State of Maharashtra, through its office at Government Pleader, Bombay High Court. ) ) ) 3. District Collector, Ratnagiri, having his office at Collector Compound, Ratnagiri. ) ) ) 4. Nuclear Power Corporation of India Limited, having its office at Vikram Sarabhai Bhavan, Madhya Marg, Anushakti Nagar, Mumbai – 400 094. ) ) ) ) ) 5. Special Land Acquisition Officer, having his office at Collector Compound, Ratnagiri. ) ) ) ... Respondents Mr. Sunip Sen with Mr. Mahesh Londhe i/b M/s. Sanjay Udeshi & Co. for the petitioners. Ms. S.V. Bharucha for respondent 1. Mr. S.R. Nargolkar, A.G.P. for respondents 2, 3 and 5. Mr. S.U. Kamdar with Ms. L.A. Munim and Ms. Patel i/b Mr. Rajesh Kothari for respondent 4. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 31ST JULY, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 13TH AUGUST, 2009. AJN 3 JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. Rule. Rule made returnable forthwith. Respondents waive service. By consent of the parties, taken up for hearing and final disposal. 2. The petitioners own lands in or around villages of Madban, Mithgavane, Karel, Niveli, Taluka Rajapur, District Ratnagiri. In this petition filed under Article 226 of the Constitution of India, the petitioners have inter alia prayed for quashing of the proposed acquisition of their lands for establishing a nuclear power plant. 3. Respondent 1 is the Union of India. Respondent 2 is the State of Maharashtra. Respondent 3 is the District Collector, Ratnagiri. Respondent 4 is the Nuclear Power Corporation of India Limited (for short, “the NPCIL”), who is the acquiring body. Respondent 5 is the Special Land Acquisition Officer (for short, “the SLAO”), Ratnagiri. 4. The petitioners’ case is that from and around 1988, AJN 4 the Central Government has been considering establishing a nuclear power plant in or around the Ratnagiri region. Upon coming to know about the proposed nuclear power plant, petitioner 1 made enquiries with the District Collector, Ratnagiri. By letter dated 21/6/2005, the Industries, Energy and Labour Department of the Government of Maharashtra informed him that 700 hectares of land was required for the plant and 150 hectares of land was required for a housing colony. He was further informed that the project report was not yet prepared and that the project had received no clearances. 5. On 22/9/2005, the Union Cabinet gave in principle clearance. The District Collector sent letter dated 11/11/2005 to the SLAO informing him that a proposal for acquisition of land was submitted by the NPCIL for Jaitapur Nuclear Power Project and action has to be taken in accordance with Section 17 of the Land Acquisition Act, 1894 (for short, “the L.A. Act”). Necessary steps to be AJN 5 taken were set out in the letter. On 24/1/2006 measurement notices were issued to villagers and surveys were conducted prior to issuance of notification under Section 4 of the L.A. Act. It is the case of the petitioners that the surveys were conducted under purported exercise of powers conferred by the rules of the Booklet for Land Acquisition Rules for Maharashtra State (improved or modified version), 1973. Since the L. A. Act applied only after Section 4 notification, no power can be exercised under it prior to issuance of Section 4 notification and, therefore, these surveys are illegal. At this stage, we must mention that this contention was not pressed by learned counsel for the petitioners and, hence, it is not necessary for us to dwell on it. 6. Pursuant to a request for information from petitioner 1, the NPCIL vide letter dated 22/2/2006 informed him that publicity had been given to the proposed project by notification dated 12/1/2006; that the project had not been finalized; that for the details of villages and people AJN 6 affected, petitioner 1 should contact the district authorities, that there was no exclusion zone having width of 1.6 km., that the proposed site was not earthquake prone and that tremors of about 6.5 were felt in Koyna in 1967 and lesser in later years and that Koyna was about 80 to 90 kms. from Jaitapur. 7. It is the further case of the petitioners that on 12/1/2007, the NPCIL gave seismic data to the petitioners. The data showed that the area was in Zone IV (High damage); that between 1985 and 2005 there were 91 instances of seismic activity at the site; that there were upto 20 seismic activities in a single year, that there were increasing instances of seismic activity with seismic activity every year from 1990 onwards and that the seismic activity was upto 6.3 on the richter scale. 8. On 11/1/2007, notification dated 10/1/2007 under Section 4(1) read with Section 17 of the L.A. Act was published in the local newspapers under the signature of AJN 7 the Additional Commissioner. It was published in the Official Gazette on 22/2/2007. The petitioners have sought quashing of the said notification. 9. We have heard at some length Mr. Sen, learned counsel appearing for the petitioners. Mr. Sen first drew our attention to the in principle approval of the Government of India conveyed to the NPCIL vide letter dated 1/7/2005. He pointed out that the in principle approval for Jaitapur project was for (2 x 1000 MWe LWRs). The in principle approval was based on site selection report in which it is stated that the site of Jaitapur project was being evaluated for setting up of three twin units modules of 1000 MWe LWRs (1000 x 3). Learned counsel drew our attention to the affidavit filed on behalf of the NPCIL where it is stated that the NPCIL has submitted the proposal for land acquisition to implement over all plan of 6000 to 8000 MWe (approx.). Mr. Sen submitted that though Site Selection Committee evaluated Jaitapur site for 1000 x 3 MWe LWRs, the AJN 8 cabinet granted in principle approval only for 2 x 1000 MWc LWRs. However, the NPCIL has gone overboard and has submitted a proposal for land acquisition to implement over all plan of 6000 x 8000 MWe (approx.). The NPCIL is, therefore, overambitious and has not cared to carry out proper evaluation. Undertaking nuclear power project without proper evaluation is hazardous, submitted Mr. Sen. 10. Mr. Sen then submitted that the impugned Notification dated 10/1/2007 suffers from the vice of vagueness. He pointed out that the notification does not mention which lands are going to be acquired. The lands are not identified. It only states that the particulars would be available in the office of the SLAO. Mr. Sen submitted that the petitioners have specifically raised this point but, the respondents have not given any reply to it. Mr. Sen submitted that the impugned notification will have to be set aside on the ground of vagueness. In this connection, he relied on Om Prakash Sharma & Ors. v. M.P. AJN 9 Audyogik Kendra Vikas Nigam & Ors. (2005) 10 SCC 306. 11. Mr. Sen then submitted that the notification under Section 4 is issued on 10/1/2007. Section 4(1) states that the notification has to be published in the official gazette and in two daily newspapers and the Collector has to cause public notice of the substance of such notification to be given at convenient places in the concerned locality and the last date of such publication and the giving of such public notice is to be referred to as the date of publication of the notification. Mr. Sen pointed out that under proviso (ii) to Section 6(i) of the L.A. Act, no declaration in respect of any particular land covered by a notification under Section 4(i) shall be made after the expiry of one year from the date of publication of the notification. Mr. Sen submitted that in this case, Notification dated 10/1/2007 issued under Section 4(i) was published in the Government Gazette on 22/2/2007. It was published in Ratnagiri Express on 10/2/2007 and in AJN 10 Nav Konkan on 9/2/2007. It was again published in Ratnagiri Express and Bhairav Times on 4/7/2008. It was published in Tarun Bharat on 5/7/2008. Declaration under Section 6 was published on 13/1/2007. Mr. Sen submitted that since in this case as per Section 4(1), 5/7/2008 is the last date of publication of Section 4(1) notification, Section 6 declaration should have been published before the expiry of one year from 5/7/2008. Since it is not made before expiry of one year from 5/7/2008, but has preceded Section 4(1) notification, it is illegal and must be struck down. In this connection, Mr. Sen relied on the judgment of the Supreme Court in State of Uttar Pradesh v. Radhey Shyam Nigam & Ors. (1989) 1 SCC 591. 12. Mr. Sen further submitted that before Section 17 of the L.A. Act is invoked, the appropriate Government has to be satisfied about the urgency. It must apply its mind to the question whether there is urgency or not. Mr. Sen submitted that letter dated 11/11/2005 issued by the AJN 11 District Collector, Ratnagiri to the SLAO indicates that urgency clause was invoked only because the acquiring body, the NPCIL has directed it to do so. There is no application of mind of the appropriate Government. Mr. Sen submitted that urgency clause cannot be invoked because the State is unable to follow the procedure laid down under the L.A. Act expeditiously. It’s inefficiency must not prompt it to invoke urgency clause. Mr. Sen submitted that Section 5-A of the L.A. Act provides for hearing of objections. A person interested in the notified land has to be heard. It is a provision which incorporates rules of natural justice. Under Section 17(4), Section 5-A can be dispensed with. Very strong and compelling reasons are necessary for dispensing with Section 5-A. Mr. Sen submitted that only in a case where if you do not dispense with Section 5-A, the project itself will be lost, urgency clause can be invoked. Such is not the case here. In this case, there is no project. Mr. Sen pointed out that Section 17 was invoked in 2005 but acquisition was not even commenced till 2007. No reasonable man AJN 12 could have concluded that there was a need to invoke urgency provision. Mr. Sen submitted that the petitioners have squarely raised this point, but the NPCIL has not replied to it which indicates that they have no answer for it. Mr. Sen submitted that in fact in his affidavit Mr. Deshmukh, SLAO has accepted that at the request of the acquiring body – the NPCIL the lands are being acquired. Mr. Sen submitted that development of a particular region by supplying it water, power, etc. is a laudable object. But it is a part of the continuing process of development. On that ground, land owners cannot be deprived of their right under Section 5-A of the L.A. Act. Mr. Sen submitted that inasmuch as there is no urgency, the entire procedure adopted by the respondents is vitiated. This is a case where the proposed acquisition must be set aside. In this connection, Mr. Sen relied on Union of India & Ors. v. Deepak Bhardwaj & Ors. (2004) 13 SCC 85 and Union of India & Ors. v. Krishan Lal Arneja & Ors. (2004) 8 SCC 453. AJN 13 13. Mr. Sen further submitted that as of today, no project report is prepared. He submitted that there is no clearance from the Ministry of Environment and Forests, which is mandatory. Preparation of an Environment Impact Assessment Report and public hearings is mandatory. As of today, terms of reference for the Environment Impact Assessment Report have not been applied for and cannot be applied for because project report is not prepared. The exact siting of the plant is required to be finalised since the area of the exclusion zone has to be acquired. Mr. Sen drew our attention to the affidavit of Mr. Arora, Chief Engineer of the NPCIL, where it is stated that the NPCIL is in the process of technical evaluation of many proposals on Environment Impact Assessment and final decision will be taken at the Government level depending on the outcome of technical and economic suitability of the proposals. The affidavit further states that the NPCIL has entrusted the job of Environment Impact Assessment study to National Environment and Engineering Research Institute (for AJN 14 short, “the NEERI”). Mr. Sen submitted that the affidavit indicates that the NEERI has not submitted its final report as yet. Mr. Sen submitted that since the required clearances are not available there is, as of today, no legally implementable project. Hence, the entire action is vitiated. 14. Mr. Sen submitted that there is no proper scheme for acquisition and rehabilitation of the landowners. The safety and security of the villagers residing in the nearby area is being compromised by the respondents. The NPCIL has taken care of its employees. It proposes to establish a residential colony for its employees away from the sterilized zone. However, it has not bothered to take care of the villagers residing in the nearby area. Mr. Sen submitted that the lands of the petitioners are situated in the exclusion zone. However, their houses are situated in the sterilized zone which is subject to controlled population growth. He submitted that the petitioners are not challenging the acquisition on the ground that they AJN 15 are mala fide excluded from acquisition. They do not want their lands to be acquired. The petitioners want the entire acquisition to be set aside because it is undertaken in colourable exercise of power. Mr. Sen submitted that in the circumstances, this is a fit case where the proposed acquisition should be quashed and set aside. 15. Mr. Kamdar learned senior counsel appearing for respondent 4 – the NPCIL submitted that the petitioners have not made out any case for quashing of the acquisition proceedings. He submitted that interpretation put on Section 4(1) and Section 17(4) by the petitioners is erroneous. He submitted that the petitioners’ case that Section 6 declaration is bad in law because it is issued prior to publication of Section 4(1) notification is, in the circumstances of the case, erroneous. He submitted that it is true that Section 4(1) states that last of the dates of publication and giving of public notice is to be referred to as the date of the publication of the notification and Section 6 states that declaration contemplated thereunder AJN 16 has to be made after the expiry of one year from the date of the publication of the notification under Section 4. However, Section 17(4) states that in the situation contemplated thereunder a declaration may be made under Section 6 in respect of the land any time after the date of the publication of the notification under Section 4(1). Mr. Kamdar submitted that it is the publication of the notification in the Gazette which is important. Mr. Kamdar submitted that reliance placed by Mr. Sen on Radhey Shyam’s case is misplaced, because in that case notification under Section 6 was made on the same day on which notification under Section 4(1) was made. In support of his submission Mr. Kamdar relied on the judgment of the Supreme Court in Mohan Singh & Ors. v. International Airport Authority of India & Ors. (1997) 9 SCC 132. 16. Mr. Kamdar submitted that under Section 6(1), it is only a declaration which is required to be made, the time limit being within one year of the publication of Section 4 AJN 17 notification. He submitted that sub-section (2) of Section 6 does not prescribe any time-limit within which the declaration made under Section 6(1) is to be published. He submitted that it is not the requirement of law that all other steps like publication in the daily newspaper, public notice at convenient places in the locality are to be taken within one year of publication of Section 4 notification. In this connection, he relied on S.H. Rangapa v. State of Karnataka & Anr., (2002) 1 SCC 538. 17. As regards the contention that the notification under Section 4 is bad because it suffers from the vice of vagueness, Mr. Kamdar submitted that notification under Section 4 published in Government Gazette contains the necessary data of the lands which are to be acquired. He submitted that the publication of the notification in the newspapers is only to inform the people about the proposed acquisition. Mr. Kamdar submitted that that is why Section 4 requires that the Collector has to cause public notice of the substance of the notification to be AJN 18 given at convenient places in the concerned locality. Mr. Kamdar submitted that Om Prakash’s case is not applicable to this case because in that case the Supreme Court was dealing with a Gazette notification and if Gazette notification is vague, it is a defect which goes to the root of the matter. Mr. Kamdar submitted that even in Narendrajit Singh & Anr. v. State of Uttar Pradesh, (1970) 1 SCC 125, to which the Supreme Court has made reference in Om Prakash’s case, the Supreme Court was dealing with a Gazette notification. Mr. Kamdar referred to the Supreme Court’s judgment in Indrajit C. Parekh & Anr. v. State of Gujarat & Ors. (1975) 1 SCC 824 where it was argued that description of the land in declaration under Section 6 of the L.A. Act was vague. The Supreme Court rejected this submission by observing that the declaration stated that a plan of the land was open for inspection at the office of the SLAO and in the plan, the area proposed to be acquired must have been clearly demarcated. Mr. Kamdar submitted that in this case also similar averment is made in the impugned AJN 19 notification. Mr. Kamdar urged that in the circumstances, this submission deserves to be rejected. 18. Mr. Kamdar further submitted that the subjective satisfaction of the Government of India can be challenged only on two grounds i.e. non-application of mind and mala fides. He submitted that in this case neither is present. He submitted that there is proper application of mind of the Government of India and the State Government and conscious decision is taken after considering all vital aspects. In this connection, he drew our attention to relevant portions of the Site Selection Committee Report, the minutes of the meeting held on 26/11/2005 under the Chairmanship of the Chief Secretary and letter dated 16/10/2008 issued by the Deputy Secretary, Department of Atomic Energy to the Chairman and Managing Director, NPCIL. We shall advert to these documents at the appropriate time. 19. Mr. Kamdar submitted that a Memorandum of AJN 20 Understanding (MOU) dated 25/9/2006 was entered into between NPCIL and the Government of Maharashtra in which details of rehabilitation procedure to be followed are given. In tune with the MOU, the work of survey of the affected families is entrusted to Yashwantrao Chavan Academy of Development Administration (YASHADA), Pune. Mr. Kamdar submitted that NPCIL is committed to give same facilities or benefits which are given to its employees to those who are staying in sterilized zone. 20. So far as clearances are concerned, Mr. Kamdar submitted that till such time as the land is not made available to the NPCIL, it will not be possible for it to get all clearances. He submitted that the process of applying for clearances is on. He submitted that CRZ clearance has been received. He submitted that so far as environmental clearance is concerned, NEERI has submitted draft report which is about to be put up for public objections. He submitted that pollution control clearance is awaited. Mr. Kamdar submitted that the project will not be AJN 21 commissioned till all clearances are received. 21. Mr. Kamdar further submitted that the fear expressed by the petitioners that the project is located in an earthquake prone zone is misplaced. Mr. Kamdar pointed out that this issue has been reviewed and assessed in detail by the Site Selection Committee in their Site Selection Committee Report. Studies are also carried out by other expert bodies and the project has been cleared. We shall advert to the relevant portions of the report at the appropriate time. 22. Mr. Kamdar submitted that in this case, invocation of urgency clause is perfectly justified. The nature of the project and its relevance to the development of the country is a relevant factor. Judicial notice can be taken of the acute power shortage in the country while deciding whether there is any urgency or not. Mr. Kamdar submitted that subjective satisfaction of the Government is not open to judicial review unless there are malafides or AJN 22 non-application of mind, which is not the case here. The court will only consider whether satisfaction is borne out by the material on record. Mr. Kamdar submitted that post notification delay does not vitiate the acquisition in cases of urgency and more the delay, more the urgency. In this connection, Mr. Kamdar relied on State of U.P. v. Smt. Pista Devi & Ors. With Meerut Development Authority v. Smt. Pista Devi & Ors. (1986) 4 SCC 251; Chameli Singh & Ors. v. State of U.P. & Anr., (1996) 2 SCC 549; Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab & Ors. (1996) 4 SCC 212; First Land Acquisition Collector & Ors. v. Nirodhi Prakash Gangoli & Anr. (2002) 4 SCC 160 and Mahadevappa Lachappa Kinagi & Ors. v. State of Karnataka & Ors. (2008) 12 SCC 418. 23. Mr. Kamdar submitted that there is a serious power crisis in the country. It is necessary to have a eco- friendly, hygienic project. The present project is therefore AJN 23 of great national importance. Mr. Kamdar submitted that advance negotiations are on with foreign countries for acquiring Nuclear Reactor and for that land must be available. Mr. Kamdar submitted that in national interest this project cannot be stalled. He submitted that this is an infrastructure project having great relevance to the development of the country and, hence, needs to be commissioned at the earliest. Mr. Kamdar submitted that in the circumstances, the petition be dismissed. 24. Ms. Bharucha, learned counsel for the Union of India adopted all submissions of Mr. Kamdar. 25. Mr. Nargolkar, learned A.G.P. appearing for the State adopted the arguments of Mr. Kamdar. He submitted that the petitioners have sought quashing of the notification which involves lands of others. However, no leave of the court under Order 1 Rule 8 of the Code of Civil Procedure is taken. If the petitioners wanted to challenge the impugned notification qua their lands, they should have AJN 24 given necessary particulars of their lands. The petition does not contain those details and, therefore, on that ground alone, the petition should be dismissed. Mr. Nargolkar submitted that invocation of urgency clause depends on facts and circumstances of each case. He submitted that subjective satisfaction of the Government cannot be questioned unless it is vitiated by malafides or there is non-application of mind. He submitted that nuclear power project is of great importance to the country