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2016 DIGILAW 390 (GUJ)

Tarsangji Manglaji Thakor v. State of Gujarat

2016-02-17

AKIL ABDUL HAMID KURESHI, Z.K.SAIYED

body2016
ORDER Akil Abdul Hamid Kureshi, J. 1. Petitioners have prayed for a declaration that the acquisition of their agriculture lands bearing revenue survey No. 85 of village Akhol Moti, Tal. Deesa, Dist. Banaskantha has lapsed by virtue of Sub-section (2) of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("the Act" for short). They have also prayed for a consequential direction to the State authorities to release such land from acquisition by setting aside communication dated 05.03.2015. 2. Brief facts are as under:-- "2.1 Petitioners are owners of the said land. The Government issued notification under Section 4 of the Land Acquisition Act, 1894 on 13.05.2000 for acquiring such land along with other neighbouring lands for setting up a check post for the Sales Tax Department of the State Government. Notification under Section 6 of the Land Acquisition Act, 1894 was issued on 18.08.2000. Award was passed by the Land Acquisition Officer under Section 11 of the Act on 19.02.2000. Compensation of Rs. 1,41,162/- was awarded to the petitioner. However, case of the petitioners is that such compensation was never paid. Petitioners further contend that subsequently, due to internal reasons, the Sales Tax Department took a decision not to set up check post at the acquired land site, but shifted it to another village-Gundari, Tal. Dantiwada, which would be a composite check post for the Sales Tax as well as RTO authorities. This new proposed site is at a distance of about 41 km. from the land in question. The Joint Commissioner of Commercial Tax under his letter dated 05.03.2015 to the Deputy Collector has conveyed that such land cannot be restored to the original land owners as the same is required for the purpose of construction of residential facility for the officials/employees serving at the check post of the Sales Tax Department. At that stage, the petitioners filed this petition and prayed for the reliefs noted above." 3. Case of the petitioners is simple. They point out that the land was acquired for the purpose of construction of sales tax check post. However, such proposal was abandoned. The check post has been shifted to a site which is 41 km away. At that stage, the petitioners filed this petition and prayed for the reliefs noted above." 3. Case of the petitioners is simple. They point out that the land was acquired for the purpose of construction of sales tax check post. However, such proposal was abandoned. The check post has been shifted to a site which is 41 km away. The Department wishes to use the same land for construction of residential quarters for the employees at such check post, which obviously would be at a distance of 41 km. from the residential site. 4. In legal terms, contentions of the petitioners are that compensation for the land in question was never paid to the petitioners. The say of the Government that the same was deposited in the Government Treasury, would not be sufficient compliance of legal requirements. Petitioners further contend that even the possession of the land was never taken. Mere revenue entries would not indicate taking over possession through lawful means. 5. On the other hand, the Government opposes the petition contending that the land, once acquired, can be used for any other public purpose and at any rate, cannot be returned to the land owner. Regarding applicability of Sub-section (2) of Section 24 of the Act, the Government contends that the compensation was deposited in the Government Treasury. When the petitioners did not come forward to claim such amount, this would be sufficient compliance of the term "paid" used in the said Section. Regarding compensation, the respondents, in addition to relying on the revenue entries, have produced the possession receipt dated 28.03.2003 which records handing over of the possession of the land by the Circle Officer, Deesa to the officer of the Sales Tax Department. 6. Having heard learned Counsel for the parties and having perused documents on record, we do not find any evidence showing actual physical possession of the lad being taken over by the Government authorities pursuant to the acquisition proceedings. Mere possession receipt issued by the Circle Officer in favour of the Sales Tax Department would not establish that the possession of the land was actually taken over by the acquiring authorities from the petitioners. Mere possession receipt issued by the Circle Officer in favour of the Sales Tax Department would not establish that the possession of the land was actually taken over by the acquiring authorities from the petitioners. Had this been the sole ground, we would have probe the issue further and try to ascertain whether there is any other material found with the Government to suggest actual taking over of the possession of the land, particularly in view of the revenue entries posted way back in the year 2004, under which the name of the Sales Tax Department had been entered as the occupant. 7. However, issue of far greater significance is that of payment of possession to the petitioners. Admitted facts are that after passing the award under Section 11 by the Land Acquisition Officer, the compensation was not actually paid over to the petitioners. Instead, claiming that the petitioners did not come forward to receive the same, the authorities have deposited the compensation with the Government Treasury. The Supreme Court in case of Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & Ors., reported in (2014) 3 SCC, page No. 183 has held that expression "paid" in Section 24(2) would include actual payment of compensation to the claimants or deposit thereof in Court. It is clarified that a literal construction of term "paid" would not be justified. In this context, the Court also observed that mere depositing the compensation in Government Treasury upon the land owners not receiving the compensation would not be sufficient compliance. It was observed as under:-- "17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word "paid" to "offered" or "tendered". But at the same time, we do not think that by use of the word "paid", Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression "paid" used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as "paid" if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been "paid" within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33. 18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. 19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs. 27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. 27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes, relying upon the earlier decision in Prem Nath Kapur, has held that the deposit of the amount of the compensation in the state's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court. 20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act." 8. This view has been followed by the Supreme Court in several later decisions. This Court has also, following such judgments of the Supreme Court, declared lapsing of land acquisition when it is found that instead of either paying the compensation or depositing before the Court when the claimants did not receive it, the compensation was deposited before the Government Treasury. 9. Under the circumstances, petition is allowed. It is declared that the acquisition proceedings with respect to the land in question have lapsed by virtue of Section 24(2) of the Act.