For an Indian farmer, deprivation of agricultural land is traumatic, more so, when compensation as per the Law of the land is not paid at the earliest and proper Resettlement and Rehabilitation, as per law, is not done", observed the Telangana High Court on Wednesday.
The State of Telangana had initiated the Kaleswaram Irrigation Project under which it proposed to construct many reservoirs down stream. The lands of the petitioners before the Court, who are small farmers owning small extents of land and eking out their livelihood doing agriculture, were acquired by the State/respondents for purpose of Ananthagiri Sagar reservoir, which is also a component of the Kaleswaram irrigation project. The issues raised relate to (a) payment of lawful compensation under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to the petitioners for depriving them of their agricultural lands and structures thereon and (b) also of compensation in lieu of Rehabilitation and Resettlement under Section 31-A introduced in the Act by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Telangana Amendment) Act, 2016.
The bench was alive to the fact that the water from these reservoirs (from the river Godavari) would be supplied and utilised in more than 10 districts for agriculture purpose, besides covering the supply of drinking water to the State Capital of Hyderabad. "It is a prestigious project undoubtedly conceived in public interest", the Court had stated.
However, it proceeded to observed that "Admittedly, there is unequal bargaining power between the State actors such as the respondents and the petitioners, who are small farmers". It noted that in the instant cases too, "the petitioners were given no choice or rather no meaningful choice, in view of their unequal bargaining power with the respondents, but to give their assent to a contract or to sign on the dotted line in a prescribed or standard form though it was unfair, unreasonable and unconscionable".
Accordingly, the bench declared that the agreements/consent awards entered into by the petitioners with the State are vitiated by coercion, that they are unconscionable and consequently unenforceable invoking Sec. 19 and 23 of the Contract Act, 1872. The Court also held that the action of the State is also violative of Art.14 and 300-A of the Constitution of India. Taking their respective dates of dispossession as the date of Sec.11 (1) notification (issued in July, 2015), the bench ruled that the petitioners would be entitled to compensation as if their lands had been acquired under the new LA Act of 2013. Requiring such compensation to be paid within 3 months, the bench also ordered the state to pay costs of Rs.2,000/- to each of the petitioners.
"We hold that the petitioners are entitled to not only (market value) compensation for their lands in accordance with the provisions of Act 30 of 2013 but also to the lump sum amounts towards Rehabilitation and Resettlement as per Sec.31A", the Court announced.
'Sec.31 A makes even land owners deprived of their lands by the State for irrigation projects (despite section 10A(1)(b) allowing exemption by the government in respect of such projects in public interest) entitled to a lump sum amount in lieu of Rehabilitation and Resettlement, which is not to be at variance to the disadvantage of the affected families', concluded the bench.
The Court opined that even after the deletion of the words "equivalent costs required for rehabilitation and resettlement of willing land owners and others" from the July, 2015 notification by a subsequent Government Order, the said GO would still be overridden by the non-obstante clause in Sec.31A, and make the petitioners entitled to the said amounts.
The Court further directed that amounts already paid to petitioners shall not be recovered by the respondents and shall be adjusted by the State towards the compensation found payable to the petitioners after such compensation for land is determined strictly in accordance with the procedure prescribed in Act of 2013.
"Not a single agreement or sale deed or other material said to have been signed by the petitioners with requisitioning department is filed by the respondents to support this plea as to how they gave their willingness to sell their land to the State and to accept what was offered to them by the respondents or how the compensation/price for petitioners' lands' was arrived at. The respondents have also not filed before the Court the minutes of the meetings of the District Level Land Procurement Committee to show how it had arrived at the price/consideration to be offered to the petitioners for purchasing their land. No record pertaining to the Registration department showing the market value as on the date of dispossession of the petitioners is filed by the respondents though the consideration is supposed to be fixed looking at valuation statement produced by the Land Procurement Officer", reads the judgment.
The bench expressed that such record is critical to ascertain whether petitioners agreed to part with their lands voluntarily and whether price was arrived at objectively keeping in view the market value/ registration value of neighbouring lands, and as to what the petitioners were made to agree was more beneficial than what they would have got for the land under the Act of 2013. "This is because under Section 26(1) of the Act, the Collector has to adopt the higher rate among (a) market value specified in the Indian Stamp Act, 1899 for registration of sale deeds or agreements to sell in the area where the land is situated or (b) the average sale price for similar type of land situated in the nearest village or vicinity", the Judges write. "Why this record of market value fixed under the Indian Stamp Act, 1899 by the Registration department of the State in regard to the lands in the villages of Allipur and Ananthagiri is suppressed from the Court is not explained by the State", wondered the bench.
The Court Dispelled the State Government's Argument of Lack of Urgency in Posting the Matter for Final Hearing Via Video Conferencing Amidst the Lockdown
"If the Writ Petitions were to be posted for final hearing in the normal course, as is suggested by the learned Advocate-General, such final hearing, keeping in mind the present pendency of more than two lakh cases and the Bench strength of the High Court of a mere 14 Judges as against a sanctioned strength of 24, would happen probably only after 10 years from now, by which time the petitioners' lives would be destroyed", said the division bench.
In the same breath, the court proceeded to observe, "Also, it is now not clear when the pandemic will end and so he cannot say that unless the pandemic ends, the matters can't be heard".
Further, in its opinion, issues relating to adequate payment of compensation to land losers and their Rehabilitation and Resettlement cannot be postponed in the manner suggested by the Advocate-General-
(a) the very purpose of the Act 30 of 2013 is to lessen the hardship of owners of land;
(b) Section 38 in fact mandates that the land owner can only be dispossessed by the Collector after ensuring full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensation and a period of six months for the monetary part of rehabilitation and resettlement entitlements listed in the 2nd Schedule to the Act;
(c) the 2nd proviso to Section 38 states that in case of acquisition of land for irrigation or hydel project, the rehabilitation and resettlement shall be completed six months prior to submergence of the lands acquired; and
(d) it is admitted in that the previous Bench presided over by the Hon'ble Chief Justice had permitted the State to release water into the subject lands which were acquired for the purpose of Kaleswaram Lift Irrigation Project (Order dt.01.05.2020) (the Anatagirisagar reservoir was inaugurated on 24.4.2020 itself) , and consequently the lands of the petitioners would be submerged and result in their dispossession,
the Advocate-General cannot contend that this bench should ignore the mandate of the statute contained in the 2nd proviso to Section 38, that it should also ignore the timelines specified in it including the timeline for rehabilitation and resettlement mentioned in the 2nd proviso to ensure Rehabilitation and resettlement 6 months before submergence of the lands acquired and simply adjourn the matter to an unknown future date'
In as much as it was argued that it is difficult for the Advocate General to present arguments through Video Conferencing mode, for final hearing because of disruption of audio/logging problems, the bench insisted that all the High Courts in the country including the Supreme Court have been doing hearing of matters mostly through Video Conferencing only since 24.03.2020 and it is not as if only this High Court is adopting that mode.
"Though occasionally there were disruptions of audio and logging problems, from 12.05.2020 till 15.05.2020 when the learned Advocate General made submissions before this Bench not only in these matters and also other matters including PILs, we did not find any difficulty in hearing arguments of the petitioners' counsel or the learned Advocate General or other Government Pleaders or counsel for respondents. In fact, the learned Advocate General himself appeared and finally argued for the State on 12.5.2020, W.P. (PIL) No.75 of 2020 [where the action of the State Government in prohibiting testing for suspected COVID-19 persons in private ICMR laboratories and treatment in private hospitals was challenged by the petitioner Ganta Jai Kumar] and final orders allowing the said WP were pronounced by this Bench on 20.05.2020. So he cannot say that hearing of the instant matters would take considerable time and therefore he would not address arguments in these matters", said the bench.