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
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
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).
6. The Metro Railways (Construction of Works) Act,
1978 (33 of 1978).
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
No comments:
Post a Comment