Tuesday 5 September 2017

Mrs. RAM DULARI GUPTA, Aged about __Years, W/o Mr. Suraj Prakash Gupta, R/o Raja Lodge, Utsav Vatika, Madhav Chowk, Bus Stand, Shivpuri District – Shivpuri (Madhya Pradesh)

Format No. 7
(Chapter X, Rule 23)

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.

WRIT PETITION NO.               OF 2017 (O)


PETITIONERS          :       1.     SUDAMA KRISHNA GUPTA, Aged

about __ years, S/o Mr. Suraj Prakash Gupta, R/o Madhav Chowk, Shivpuri District – Shivpuri (Madhya Pradesh)

                                       
2.     Mrs. RAM DULARI GUPTA, Aged
about __Years, W/o Mr. Suraj Prakash Gupta, R/o Raja Lodge, Utsav Vatika, Madhav Chowk, Bus Stand, Shivpuri District – Shivpuri (Madhya Pradesh)

Versus

                               
RESPONDENTS        :1.    UNION OF INDIA, Through the
Secretary, Ministry of Road Transport & Highways, Transport Bhawan
1, Parliament Street, New Delhi-110001

2.     National Highways Authority of India,

Through The Chairman, G 5 & 6, Sector-10, Dwarka, New Delhi - 110 075

Phone: 91-011-25074100 & 25074200

Fax : 91-011-25076507


3.     The State of Madhya Pradesh Through The Divisional Commissioner- cum- Arbitrator, Gwalior, (Madhya Pradesh).

4.     Competent Authority cum Sub- Divisional Officer, National Highway No. 3, Shivpuri -473551 (Madhya Pradesh)

5.     Project Director, Project Implementation
Unit –  National Highways Authority of India,  Narendra Nagar, Chhatri Road,
Near Wool House, Shivpuri -473551 (Madhya Pradesh) Phone : 07492-223902, Fax: 07492-223902, E-mail : shiv@nhai.org AND nhaishivpuri@gmail.com



 (Writ Petition under Article 226 of the Constitution of India).


1.  Particulars of the Cause/ Order against which the petition is submitted:



(1)        Date of Order / Notification/ Circular / Policy/ Decision Etc. : 03.04.2017


(2)        Passed in (Case Or File Number) : 181/15-16/Abhya & 170/ 15-16/ Abhya


(3)        Passed by (Name and Designation of the Court, Authority, Tribunal Etc.) : Mr. S. N. Rupala, Commissioner cum Arbitrator, Gwalior Divison, Gwalior (Madhya Pradesh).

(4)        Subject – matter in brief: By preferring this petition under Article 226 of the Constitution of India invoking the extraordinary writ jurisdiction of this Hon’ble High Court by calling in question the legality, validity, propriety and correctness of the impugned by which  A dispute has been turned with regard to the quantum of the same as the petitioners' are claiming assessment and quantification in terms of The Right to fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. The petitioners also urge that an alternative nearby land was available and, therefore, acquiring the roadside land of the petitioner has put them to considerable loss and they would also be deprived of any access to their remaining land from the roadside. From pillar to post petitioner, being the Law abiding national, knocked every door for the redressal of his grievances but at the end petitioner surrenders himself before this Hon’ble High Court to seek justice as litigation is the last resort when governments completely disregard the rule of law. The impugned Order is bad in Law. The impugned action of the respondent authorities is arbitrary, malafide, capricious, colourable exercise of power and voilative of principal of natural justice.

2.  A declaration that no proceeding on the same subject matter has been previously instituted in any Court, Authority or Tribunal, if instituted, the Status or result thereof, along with copy of the Order:

Petitioner declares that no proceeding on the same subject matter has been previously instituted in any Court, Authority or Tribunal.

3.  Details of the remedied exhausted :

The petitioner declares that he has availed all statutory and other remedies.

4.  Delay, if any, in filing the petition and explanation therefor

It is most humbly and respectfully submitted that there is no delay in filing of the instant writ petition.

5.  Facts of the Case :

1.   Petitioner is a peace loving national of India and entitled for the all the benefit and fundamental rights as enshrined in Part III of the Constitution of India. Respondents are the instrumentality of state within the meaning of Article 12 of the Constitution of India and therefore amenable to the writ jurisdiction of this Hon’ble High Court.

2.   The Ministry of Road Transport and Highways, a ministry of the Government of India, is the apex body for formulation and administration of the rules, regulations and laws relating to road transport, and transport research, in order to increase the mobility and efficiency of the road transport system in India. Road transport is a critical infrastructure for economic development of the country. It influences the pace, structure and pattern of development. In India, roads are used to transport over 60% of the total goods and 85% of the passenger traffic. Hence, development of this sector is of paramount importance for the India and accounts for a significant part in the budget.

3.   The National Highways Authority of India (NHAI) is an autonomous agency of the Government of India, responsible for management of a network of over 70,000 km of National Highways in India. It is a nodal agency of the Ministry of Road Transport and Highways. NHAI has signed a memorandum of understanding (MoU) with the Indian Space Research Organisation for satellite mapping of highways.

4.   Vide Award dated 22.03.2013 passed by respondent No. 4 under the provisions of National Highway Act, 1956, petitioners were awarded a sum as compensation which is too much on lower side. Copy of the Award dated 22.03.2013 is filed herewith and marked as Annexure P-1. Being dissatisfied with the same petitioners raised their grievances before the resident No.3 on filling a statement of claim under the provisions of the Section 3 (G) (5) of the National Highway Act, 1956. Copy of the statement of claim in respect of Petitioner No. 1 is filed herewith and marked as Annexure P-2.   Copy of the statement of claim in respect of Petitioner No. 2 is filed herewith and marked as Annexure P-3. 

5.   A dispute has been turned with regard to the quantum of the same as the petitioners' are claiming assessment and quantification in terms of The Right to fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. Copy of the written argument dated 20.02. 2017 in respect of petitioner No. 1 is filed herewith and marked as Annexure P-4. Copy of the written argument dated 20.02. 2017 in respect of petitioner No. 2 is filed herewith and marked as Annexure P-5.

6.   Vide order dated 03.04.2017 passed by the respondent No. 3 on a claim under the provisions of the Section 3 (G) (5) of the National Highway Act, 1956. Copy of the Order dated 03. 04. 2017 passed in respect of Petitioner No. 1 by the respondent No. 3 is filed herewith and marked as Annexure P-6. Copy of the Order dated 03. 04. 2017 passed in respect of Petitioner No. 2 by the respondent No. 3 is filed herewith and marked as Annexure P-7

7.   A writ petition challenging the similar matter in identical situation was filed before the Hon’ble High Court of Madhya Pradesh Bench at Gwalior which was registered as Writ Petition No. 2801 of 2016 titled as Smt. Kavita Gupta & Anor. V/s Union of India & Ors. This petitioner was subsequently been to Principal Seat At Jabalpur and re-numbered as Writ Petition No. 9376 of 2016. Therefore the instant writ petition is being filed before Principal Seat at Jabalpur. Hence this petition on following grounds amongst the others


6.  Grounds urged :

A.   For that, the right of the petitioners to claim compensation and its quantum. This claim is subject to the applicability of the provisions of the 1956 Act which has to be read along with the Land Acquisition Rehabilitation and Resettlement Act,2013. Section 105 of the Act which is as follows :
"105.Provisions of this Act not to apply in certain cases or to apply with certain modifications.-
(1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of Section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.
(3) The Central Government shall, by notification, within one year from the ate of commencement of this Act, direct that any of the provisions of this act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be , shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament."


B.   For that, the attention of the Hon’ble High Court is prayed towards the Fourth Schedule appended to the 2013 Act indicating the list of enactments as mentioned in Section 105(3) aforesaid. The Fourth Schedule is extracted here under:
"THE FOURTH SCHEDULE (See Section 105) LIST OF ENACTMENTS REGULATING LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT
1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958).
2. The Atomic Energy Act, 1962 (33 of 1962).
3. The Damodar Valley Corporation Act, 1948 (14 of 1948).
4. The Indian Tramways Act, 1886 (11 of 1886).
5. The Land Acquisition(Mines) Act, 1885 (18 of 1885).
7. The National Highways Act, 1956 (48 of 1956).
8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land ) Act, 1962 (50 of 1962).
9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952).
10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948).
11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957).
12. The Electricity Act, 2003 (36 of 2003).
13. The Railways Act, 1989 (24 of 1989)."

C.   For that, attention of the Hon’ble High Court is prayed towards Ordinance No. 9 of 2014 and clause 10 thereof which is extracted herein under:
"The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 [No. 9 of 2014]
10. Amendment of Section 105.- In the principal Act, in Section 105,-
(i) for sub-section (3), the following sub-section shall be substituted, namely-
"(3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the 'Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015.";
(ii) sub-section (4) shall be omitted."


D.  For that, This was followed by Ordinance No. 4 of 2015 wherein clause 12 provides as under :
"The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015 [No. 4 of 2015]
12. Amendment of Section 105.- In the principal Act, in Section 105,-
(i) for sub-section (3), the following sub-section shall be substituted, namely-
(3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015.";
(ii) sub-section (4) shall be omitted."


E.   For that, This was again followed by Ordinance No. 5 of 2015 dated 30. 05.2015 Vide Anneuxure P-8 wherein clause 12 reads as under :
"The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Second Ordinance, 2015 [No. 5 of 2015]
12. Amendment of Section 105.- In the principal Act, in Section 105, -
(i) for sub-section (3), the following sub-section shall be substantiated, namely-
"(3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015.";
(ii) sub-section (4) shall be omitted."


F.   For that, The aforesaid ordinances have been followed by a notification dated 28.8.2015 of the Central Government through the Ministry of Rural Development that is extracted hereunder :
"MINISTRY OF RURAL DEVELOPMENT ORDER
New Delhi, the 28th August, 2015
Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:-
1. (1) This order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.
(2) It shall come into force with effect from the 1st day of September, 2015.
2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act.


G.  For that, The petitioners, therefore, have a full right to contest their claim with regard to their entitlement of a free and fair compensation in accordance with the provisions of 2013 Act keeping in view the ordinances and the notifications referred to herein above. It is open to the petitioners, therefore, to raise their plea with regard to any such claim which may be admissible and permissible under the aforesaid provisions before the competent authority or the Court where any such issue of enhancement of compensation or claim of fair compensation has been raised or is pending consideration in relation to the acquisition of the land of the petitioners.

7.  Relief Prayed for :

(a)        That the Hon’ble High court shall be pleased to call for the entire original record of lis for its kind perusal.

(b)        That the Hon’ble High Court shall be pleased to issue suitable writ or direction to the respondent authorities to quash impugned Order No. 181/15-16/Abhya dated 03.04.2017 passed by respondent No. 3 - Mr. S. N. Rupala, Commissioner cum Arbitrator, Gwalior Divison, Gwalior (Madhya Pradesh).



(c)        That the Hon’ble High Court shall be pleased to issue suitable writ or direction to the respondent authorities to quash impugned Order No. 170/ 15-16/ Abhya dated 03.04.2017 passed by respondent No. 3 - Mr. S. N. Rupala, Commissioner cum Arbitrator, Gwalior Divison, Gwalior (Madhya Pradesh).

(d)    Cost of this petition be also awarded in favour of the petitioner.



Any other relief deemed fit and proper looking to the facts and circumstances of the case may also be granted.



8.  Interim Order / Writ, if prayed for :


In view of the facts and circumstance of the case during pendency of instant writ petition the operation, impact and effect of the impugned No. 181/15-16/Abhya AND No. 170/ 15-16/ Abhya dated 03.04.2017 passed by respondent No. 3, may kindly be kept in abeyance, in the larger interest of justice.

9.  Documents relied on but not in possession of the petitioner :

All the relevant material and original records in relation to subject matter in dispute is lying with respondent authorities which my kindly be requisitioned by the Hon’ble High Court for its kind perusal.

10.              Caveat :

That, no notice of lodging a caveat by the opposite party is received.

PLACE : JABALPUR

DATED:                       ADVOCATE FOR THE PETITIONER












































IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO.               OF 2017 (O)

PETITIONER            :               SUDAMA KRISHNA GUPTA


Versus

                               

RESPONDENTS        :       UNION OF INDIA & Ors.

 AFFIDAVIT

I, SUDAMA KRISHNA GUPTA, Aged about __ years, S/o Mr. Suraj Prakash Gupta, R/o Madhav Chowk, Shivpuri District – Shivpuri (Madhya Pradesh) do hereby state on oath as under :


1.    That I am the Petitioner No. 1 in the above mentioned writ petition and am fully conversant with the facts deposed to in the Writ Petition.

2.    That the contents of paragraphs 1 to 10 of the accompanying writ petition are true to my personal knowledge and the contents of paragraphs are based on legal advice, which I believe to be true. No material has been concealed and no part is false.

3.    That the Annexure No(s). P-1 to P-11 to the accompanying writ petition are true copies of the originals and I have compared the said Annexures with their respective originals and certify them to be true copies thereof.

PLACE : JABALPUR                                         

DATED :                                                           DEPONENT

                                    VERIFICATION

I, SUDAMA KRISHNA GUPTA, the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated. Verified at ______this______day of _______


DEPONENT

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