HC sets aside executive order of 2011
SHILLONG: The High Court of Meghalaya has quashed the executive order of the State Government which had restricted transfer of land to non-tribal entities.
Under section 4 (1) (f) of the Meghalaya Transfer of Land (Regulation) Act, 1971, transfer of land is allowed for industrial and education purposes.
But the State Government had on March 30, 2011 passed an executive order to keep on hold all proposals for transfer of land to non-tribal entities like companies, societies, NGOs to streamline the administration of the Act and to restrict alienation of tribal land in the state pending consideration of the amendment to the Meghalaya Transfer of Land (Regulation) Act, 1971 and also pending the restructuring of the Industrial Investment Policy in the State.
However, the single bench of the High Court comprising Justice T Nandakumar Singh, while hearing a petition of Amrit Cement company, on Friday set aside the executive order.
The petitioner-company after fulfilling various criteria including clearance from single window agency had submitted three applications before the then Additional Deputy Commissioner, Khliehriat for sanction for transfer of land at Umlaper village which is the land of one Bhalang Singh Phanbuh in favour of the company for setting up of cement plant and captive power plant.
The applications filed since 2009 were duly received by the Additional Deputy Commissioner.
Section 4 (4) of Meghalaya Transfer of Land (Regulation) Act, 1971 states that if no order is passed by the competent authority on such applications within six months, it shall be deemed that sanction has been accorded.
The company had undertaken the industrial project for setting up a cement plant along with 10 Megawatt Captive Power Plant at Umlaper village with an initial project cost of Rs. 164.50 crore which was subsequently revised at Rs.420.26 crore.
As per the company, the project envisages to give employment to local tribals and also to contribute a substantial amount of revenue to the state and central exchequer by way of taxes. The company had also entered into agreements and Memorandum of Understanding with Elaka
Rymbai, Minkre and Moosiang Lamare village authorities committing corporate social responsibility initiatives for the welfare of local residents of Umlaper village by way of setting up of a higher secondary school, dispensary, drinking water facility, scholarship to deserving candidates, providing further education and production-based contribution to Elaka fund for carrying out development projects.
Earlier, the petitioner while challenging the executive order of the State Government had stated that the order is ultra vires and in clear violation of second proviso to Section 3(1) of the Land Transfer Act, 1971 inasmuch as, the second proviso to Section 3(1) of the Act, 1971 provides that no notification made under the first proviso shall apply to transfer of land for any of the purposes mentioned in clause (f) of Sub-Section (1) of Section 4 of Land Transfer Act .
According to the petitioner, the executive order of March 30, 2011 which is “neither the notification issued by the State Government under Section 2(c) nor under first proviso to Section 3(1) of the Act, 1971 cannot whittle down the statutory provisions i.e. second proviso to Sub Section of Section 3, Section 4(1)(f) and Section 4(4) of the Act”.
After hearing the submissions , the Court observed that it is clear in the writ petition that the transfer of land for which three applications dated 03.08.2009, 21.05.2010 and 27.05.2011 had been filed are for the purposes mentioned in Section 4(1)(f) of the Act, 1971. “In this context, this Court is of the considered view that the impugned order dated 30.03.2011 (executive order) is not sustainable in the eyes of law so far as the transfer of the said land is concerned”, Justice T Nandakumar Singh said in his order.
The Court also said that the applications of the petitioner “shall deem to have been granted by the competent authority; and also that any order, after deemed sanction, passed by the authority in correlation with the deemed sanction shall have no effect and also that the impugned order dated 30.03.2011 is illegal”.