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2016 DIGILAW 693 (GUJ)

Khatijaben Jivanbhai Sumra v. State of Gujarat

2016-03-30

AKIL ABDUL HAMID KURESHI, Z.K.SAIYED

body2016
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. In both these petitions, the petitioners have sought to invoke Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred to as the Act of 2013) concerning contagious lands situated in Village Chhela, Tal & District Jamnagar, which lands were acquired by the State Government for and on behalf of the Gujarat Industrial Development Corporation (GIDC for short). 2. Facts in brief are as under: In Special Civil Application No. 7152 of 2014, the petitioner was the owner of the land bearing Survey No. 709 admeasuring 94697 sq. mtrs of village Chela. Such land was to be acquired for GIDC. For such purpose, the Government issued notification under Section 4 of the Land Acquisition Act, 1894 (the Act of 1894 for short) on 05.01.1996. Declaration under Section 6 of the Act of 1894 was made on 05.07.1996. Special Land Acquisition Officer passed his award under Section 11 of the Act on 30.09.1999. 3. The petitioner had sold 66,370 sq. mtrs of such land to one Jamnagar Industrial Infrastructure Foundation under registered sale deed dated 03.09.1999. Further lands were sold to different parties under registered sale deeds dated 13.01.2010 and 22.03.2012. 4. According to the petitioner, at no point of time, despite passing of the award either the Collector had paid compensation as per such award or taken possession of the land under the said acquisition proceedings. The petitioner would reply on the notice dated 01.09.2012 issued by the Land Acquisition Officer for payment of compensation of Rs. 22,64,653/- and handing over possession, for which purpose. As per such notice, the petitioner should remain present on 21.09.2012 at Gram Panchayat Office, failing which, the compensation would be deposited with the Mamlatdar, Jamnagar. The petitioner would also draw our attention to another similar notice under Section 12(2) of the Act dated 06.03.2014, under which, the petitioner was called upon to receive compensation of Rs. 22,64,653/- by remaining present and handing over possession at the Panchayat Office on 24.03.2014 failing which, the amount of compensation would be deposited before the Mamlatdar, Jamnagar. 5. On the basis of these documents, the petitioner would contend that admittedly, neither the compensation was paid by GIDC nor was possession taken over though the award was passed way back in the year 1999. 6. 5. On the basis of these documents, the petitioner would contend that admittedly, neither the compensation was paid by GIDC nor was possession taken over though the award was passed way back in the year 1999. 6. It appears that on the strength of the sale deed of such acquired land, Jamnagar Industrial Infrastructure Foundation had earlier filed a writ petition before this Court being Special Civil Application No. 7105 of 2013 alongwith another petitioner and had prayed for a declaration that the land acquisition proceedings had vitiated. This petition came to be dismissed by Division Bench by judgment dated 22.01.2014 making strong observations against the petitioners and their intention to fraudulently acquire lands which were subject matter of acquisition proceedings. Against the judgment of the Division Bench, the petitioners therein approached the Supreme Court. The SLP was dismissed, however, leaving it open to the petitioners to file fresh petition for raising the issue of lapsing of acquisition under Section 24(2) of the Act of 2013. The Jamnagar Industrial Infrastructure Foundation, therefore, filed fresh petition being Special Civil Application No. 4530 of 2014 and prayed for a declaration of lapsing of the acquisition in terms of Section 24(2) of the Act of 2013. This petition was dismissed by the Division Bench by judgment dated 23.09.2015 refusing to recognize the locus standi of the said litigant to seek such a declaration. The Court heavily relied on the observations made by the Division Bench in the earlier judgment dated 22.01.2014. 7. In the meantime, the erstwhile owner of the land had already filed the present petition, in which, the main prayer is for a declaration of lapsing of the acquisition under Section 24(2) of the Act of 2013. 8. This petition is opposed by GIDC raising various contentions including that it is not open for the petitioner to raise his contention having sold the land. GIDC also contends that the petitioner and Jamnagar Industrial Infrastructure Foundation had created multiple hurdles in completion of the acquisition proceedings by approaching Civil Courts and filing various writ petitions. GIDC contends that the compensation was tendered to the petitioner, who refused to accept the same. The possession could not be taken on account of Court proceedings and stay by the Civil Courts. Only when the civil suit was dismissed and stay was lifted, further proceedings could be undertaken. GIDC contends that the compensation was tendered to the petitioner, who refused to accept the same. The possession could not be taken on account of Court proceedings and stay by the Civil Courts. Only when the civil suit was dismissed and stay was lifted, further proceedings could be undertaken. The petitioner, therefore, cannot take advantage of later development in law. 9. Case of the petitioner in Special Civil Application No. 13499 of 2015 is substantially similar. In this case, the petitioner was the owner of land bearing Survey No. 708 admeasuring 7 Hectors 19 Ares 33 sq.mtrs of the same village. This land also came under acquisition by GIDC under the same proceedings. In his case also, there are sale deeds stated to have been executed after initiation of the acquisition proceedings. This petitioner, however, disputes the validity of such sale deeds. Civil disputes are pending involving the petitioner and the so called purchasers. We are not concerned about such disputes. 10. This petitioner also relies on similar notice under Section 12(2) of the Act of 1894 issued by GIDC to contend that neither possession was taken over nor compensation was paid with respect to the acquired land. Here also, GIDC cites the reasons of pendency of civil proceedings and refusal on part of the petitioner to accept the compensation as a reason why neither the possession could be taken nor compensation could be paid. 11. We have heard learned counsel for the parties. At the outset, counsel for the GIDC raised the question of locus standi of these petitioners to seek any declaration under Section 24(2) of the Act of 2013. We would first deal with this contention. As noted, earlier, when Jamnagar Industrial Infrastructure Foundation and other purchasers had filed Special Civil Application No. 7105 of 2013 seeking declaration of invalidity of the acquisition proceedings, the Court held that they have no right to claim such a declaration. The Court was of the opinion that a clear fraudulent attempt was made to transfer lands after acquisition proceedings had started which was simply not permissible. Inter alia on such grounds, the writ petition was dismissed. Obviously, at that stage, the question of applicability of Section 24(2) of the Act of 2013 was never at issue. The Court was of the opinion that a clear fraudulent attempt was made to transfer lands after acquisition proceedings had started which was simply not permissible. Inter alia on such grounds, the writ petition was dismissed. Obviously, at that stage, the question of applicability of Section 24(2) of the Act of 2013 was never at issue. Such petitioners when approached the Supreme Court, the Supreme Court, while upholding the decision of the High Court, had given liberty to file fresh proceedings for declaration under Section 24(2) of the Act of 2013. Even when for such purpose Special Civil Application No. 4530 of 2014 was filed, the Court was still of the opinion that these petitioners would have no locus standi to seek such a declaration. 12. Thus, the transferees of the land were not recognized as the persons who could either seek invalidity of the acquisition under the original Act of 1894 or seek a declaration of lapsing under Section 24(2) of the Act of 2013. The simple question therefore arises is, if the transferees cannot seek such a declaration who else could? Would the transferors also be debarred from seeking such a declaration? Answering such a question in the affirmative would leave no person having sufficient interest to question the legality of an acquisition. In other words, even if the acquisition is tainted with illegality or has lapsed by virtue of the subsequent statutory developments, it would be a piquant situation where, neither the transferor nor the transferee would be in a position to raise such a legal contentions. Surely, we would not bring about any such situation when consistently this Court held that on account of attempt on part of the transferee to divert the land, which had already come under acquisition, they would not be recognized as the persons in whose favour the Court would issue a writ. As a necessary corollary to such conclusion, we must recognize locus standi of the original land owners. 13. Coming to the merits of the case few undisputed facts are that despite award under Section 11 being passed way back in the year 1999, till 01.01.2014, when the Act of 2013 was enacted, neither the possession of the land was taken over nor the compensation was paid to the land owners. This aspect emerge as virtually undisputed. 13. Coming to the merits of the case few undisputed facts are that despite award under Section 11 being passed way back in the year 1999, till 01.01.2014, when the Act of 2013 was enacted, neither the possession of the land was taken over nor the compensation was paid to the land owners. This aspect emerge as virtually undisputed. The GIDC of course cites reasons for not being able to complete these two formalities. Nevertheless, with respect to the petitioners' contention that these two essential requirements were not fulfilled, there is no dispute. This can be further culled out from the two notices under Section 12(2) of the Act of 1894 referred to earlier. Under such notices, GIDC urged the petitioners to remain present before the Panchayat Office on appointed date for receiving compensation and handing over possession failing which, the amount of compensation would be deposited before the Mamlatdar, Jamnagar. It is not even the case of the GIDC that pursuant to such notice, the petitioners appeared, accepted the compensation and handed over the possession. On the contrary, admitted position is that, none of the petitioners remained present despite issuance of such notices. It is not even the case of the GIDC that independent of these notices, in any legal manner the possession of the lands were taken over. Regarding the compensation, GIDC does not contend that the amount of compensation when the claimant refused to receive, were deposited before the Reference Court. We shall therefore, proceed on such basis. 14. The law of applicability of Section 24(2) of the Act of 2013 is now sufficiently well settled by series of judgments of Supreme Court. In case of Pune Municipal Corporation and Another vs. Harakchand Misirimal Solanki and Others, 2014 (1) SCALE 618 in the context of payment of compensation when the person interested refuses to receive the same, Supreme Court held that the same should be deposited before the Reference Court, as provided under Section 31(1) of the Act of 1894. In the said judgment, the Court held and observed as under: "12. To find out the meaning of the expression, "compensation has not been paid", it is necessary to have a look at Section 31 of the 1894 Act. The said Section, to the extent it is relevant, reads as follows: "31. In the said judgment, the Court held and observed as under: "12. To find out the meaning of the expression, "compensation has not been paid", it is necessary to have a look at Section 31 of the 1894 Act. The said Section, to the extent it is relevant, reads as follows: "31. Payment of compensation or deposit of same in Court:– (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted: 13. There is amendment in Maharashtra--Nagpur (City) in Section 31 whereby in sub-section (1), after the words "compensation" and in sub-section (2), after the words, "the amount of compensation" the words "and costs if any" have been inserted. 14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not consent to receive it (ii) there is no person competent to alienate the land and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made. 15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. 15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18. 16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33 and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be. 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." 15. In case of Rajiv Chowdhrie HUF vs. Union of India and Others, 2014 (13) SCALE 710 the Supreme Court, in the context of Section 24(2) of the Act of 2013 and the effect of order of status quo passed by the Court, observed as under: "13. Further, it is contended that the appellant had filed writ petition in this Court when this Court was pleased to grant "status quo" in respect of the land in question. Although the High Court has dismissed the Writ Petition on 26.03.2010 but extended the interim order of "status quo" regarding the possession of the land till the representation filed by the appellant for release of the land under Section 48 of the L.A. Act was decided by the Competent Authority of NCT. When the appellant challenged the said order before this Court by way of Special Leave Petition, this Court directed the parties to maintain "status quo" in respect of the land in question resultantly on the strength of the interim order passed by the High Court as well as by this Court the possession of the land could not be taken by the respondents and the same remained with the appellant. In the teeth of the aforesaid fact that the appellant continued to be in possession of the land in question only due to interim order of "status quo" passed in their favour is not proper for the appellant to turn around and contend now at this stage that physical possession of the land has not been taken by the respondents and therefore, the acquisition proceedings of the land are lapsed." 16. We may notice an ordinance was promulgated for amending Section 24(2) of the Act of 2013 by adding further proviso in order to exclude any period, during which, proceedings for acquisition were held up on account of stay or injunction issued by a Court or Tribunal in computing a period of five years referred to in sub-section (2) of Section 24. In case of Karnail Kaur and Others vs. State of Punjab and Others, 2015 (1) SCALE 598 the Supreme Court held that such provision would not have retrospective effect and would therefore, not apply to cases arising prior to introduction of the amendment. In any case, we may record that such ordinance has since lapsed with passage of time. 17. It would thus emerge that that compensation of the land in question was never paid to the petitioners as interpreted by the Supreme Court in case of Pune Municipal Corporation and Another vs. Harakchand Misirimal Solanki and Others (supra). Even the possession of the land was never taken over. The assertion of the GIDC, that the possession could not be taken over because of pendency of legal dispute would not change the situation in view of the provision contained under Section 24(2) of the Act of 2013 as interpreted by the Supreme Court in above noted judgments. 18. Under the circumstances, the petitions are allowed. It is declared that by virtue of Section 24(2) of the Act of 2013 acquisition of the petitioners' land covered under the award of the Collector dated 30.09.1999 has lapsed. Both the petitions are disposed of accordingly.