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2016 DIGILAW 752 (GUJ)

Haribhai Kalidas Rabari v. State of Gujarat

2016-04-06

AKIL ABDUL HAMID KURESHI, ALPESH Y.KOGJE

body2016
JUDGMENT Akil Abdul Hamid Kureshi, J. 1. These petitions involve identical issues of law. Facts are substantially similar. Whatever differences in facts, the same would be noted. Special Civil Application No. 11220/2014 to 11227/2014: 2. The petitioners were the owners of lands bearing block No. 209 admeasuring 6576 sq mtrs. of village Kotali, District Vadodara. The Vadodara Urban Development Authority ("VUDA" for short) required such lands along with neighbouring lands for the purpose of setting up Transport Nagar. In order to acquire such land, the State Government issued notification under section 4(1) of the Land Acquisition Act, 1894 ("the Act of 1894" for short) on 31.10.1991. This was followed by declaration under section 6 of the Act on 2.1.1993. Award was passed under section 11 of the Act on 25.11.1999. Some of the landowners filed Special Civil Application No. 4184/1995 and connected petitions challenging the acquisition proceedings. These petitions and further SLPs however, came to be dismissed. Insofar as acquisition under the Act of 1894 is concerned, therefore, all issues rested there. As is well known, the parliament enacted the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("the Act of 2013") repealing the Act of 1894 and making new provisions for acquisition of lands for public purpose. 3. The petitioners contend that by virtue of section 24(2) of the Act of 2013, the acquisition proceedings in the present case had lapsed. They have therefore, prayed for such a declaration. 4. The petitioners contend that the respondent authorities have neither taken the possession of the land in question nor paid the compensation as per the award by Special Land Acquisition Officer. In the context of taking over possession, the petitioners would rely on their averments made in the petition and 7/12 forms which show the names of the petitioners as owners/occupiers. With respect to compensation, the petitioners heavily rely on an affidavit dated 1.12.2014 filed by the Deputy Collector, Vadodara and one dated 3.12.2014 filed by the Special Land Acquisition Officer, Vadodara, from which it emerges that upon the petitioners not accepting the compensation, the amount of compensation was deposited in the Government treasury. With respect to compensation, the petitioners heavily rely on an affidavit dated 1.12.2014 filed by the Deputy Collector, Vadodara and one dated 3.12.2014 filed by the Special Land Acquisition Officer, Vadodara, from which it emerges that upon the petitioners not accepting the compensation, the amount of compensation was deposited in the Government treasury. The petitioners would thus contend that the compensation not having been deposited before the Reference Court, requirement of sub-section (2) of section 24 of the Act of 2013 of having paid the compensation would not be satisfied and accordingly, on this count also, the acquisition should be treated to have lapsed. 5. The respondents oppose the petition on multiple grounds. They contend that the possession of the acquired land was taken over at the relevant time. They point out that in the year 2005 in 7/12 records, name of the acquiring body was entered. They also rely on a possession receipt dated 31.12.2003, showing that since the landowners refused to handover the possession voluntarily, possession was taken over by the Land Acquisition Officer and handed over to the acquiring body. Regarding the payment of compensation, the respondents though agreed that at the relevant time the amount of compensation was deposited before the Government treasury on 7.12.1999 and not before the Reference Court, the same has been deposited with interest on 22nd and 23rd March, 2016 before the Reference Court. 6. As noted, the central facts are identical in all the petitions, in other petitions also, lands were acquired for the same purpose of construction of Transport Nagar. However, since the dates of relevant notifications and awards are different, we may notice such dates and other details as under: Special Civil Application No. 11846/2014 to 11849/2014 and Special Civil Application No. 9261/2014 to 9280/2014: Notification under section 4(1) of Act of 1894 was issued on 16.1.1992. Declaration under section 6 of the Act was made on 23.3.1993. Award under section 11 of the Act was passed on 25.11.1999. The amount of compensation was deposited in the Government treasury on 2.12.1999 and the same was deposited with interest in District Court on 28.3.2016. Special Civil Application No. 12534 of 2014: Notification under section 4(1) of Act of 1894 was issued on 4.5.1995. Declaration under section 6 of the Act was made on 23.11.1995. Award under section 11 of the Act was passed on 31.12.1997. Special Civil Application No. 12534 of 2014: Notification under section 4(1) of Act of 1894 was issued on 4.5.1995. Declaration under section 6 of the Act was made on 23.11.1995. Award under section 11 of the Act was passed on 31.12.1997. The amount of compensation was deposited in the Government treasury on 9.1.1998 and the same was deposited with interest in District Court on 28.3.2016. 7. On the basis of such evidence on record, learned counsel for the petitioners submitted that the petitioners are entitled to declaration in terms of section 24(2) of the Act of 2013 of the acquisition having lapsed. They heavily relied on the judgment of the Supreme Court in case of Pune Municipal Corporation and anr. v. Harakchand Misirimal Solanki and others reported in 2014(1) SCALE 618. In the context of the State Government depositing the amount of compensation before the Reference Court after promulgation of the Act of 2013, they relied on decision of the Supreme Court in case of (The) Working Friends Co-Operative House Building Society Ltd. v. (The) State of Punjab & ors. reported in 2015 (3) G.L.H. 323. They submitted that even the possession of the land was never taken over. 8. On the other hand, learned counsel for the respondents hotly contested the claim of the petitioners of they having retained the possession. They placed heavy reliance on the documents on record in this context. Regarding the payment of compensation, they pointed out that at-least now the amount of compensation with interest has been deposited before the Reference Court. 9. Insofar as question of taking over the possession is concerned, we notice that in the possession receipt dated 31.12.2003, it was recorded that since the landowners were not willing to handover the possession, the same was taken over ex-parte and handed over to the acquiring body. It is perhaps because of this reason that in 7/12 records, name of the acquiring body appears in the year 2004-2005 and onwards. We are therefore, prepared to proceed on the basis that the possession of the land was actually taken over by the Government and handed over to the acquiring body sometime in the year 2003. 10. Far more important question is one of payment of compensation. We are therefore, prepared to proceed on the basis that the possession of the land was actually taken over by the Government and handed over to the acquiring body sometime in the year 2003. 10. Far more important question is one of payment of compensation. This question arises in the background of section 24(2) of the Act of 2013 which read as under: "(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act." 11. In terms of the said provision, therefore, in case of the acquisition of land where the award under section 11 of the Act of 1894 was passed five years before the commencement of the Act of 2013, if either physical possession of the land has not been taken or compensation has not been paid, the proceedings would be deemed to have lapsed. It would however, be open for the appropriate Government to initiate proceedings for acquiring such lands in accordance with the Act of 2013. In this context, the question of payment of compensation assumes significance. 12. Admitted facts are that despite passing of the award when the petitioners failed or refused to accept the compensation awarded by the Special Land Acquisition Officer, the same was not deposited before the Reference Court but with the Government treasury. These facts have emerged from the affidavits filed by the respondents. In the affidavit filed on behalf of VUDA on 1.12.2014, it was stated as under: "3. These facts have emerged from the affidavits filed by the respondents. In the affidavit filed on behalf of VUDA on 1.12.2014, it was stated as under: "3. The respondent No. 3 submits that subsequently the respondent No. 2 issued a notification under section 4 of Land Acquisition Act on 2/5/1995 and thereafter a notification under section 6 of the Act on 14/11/1995. It is submitted that the award was published on 31/12/1997 under section 11 of the Act. The respondent No. 3 submits that accordingly the land in question of the petitioners was acquired by the Acquiring Body ie VUDA. The respondent No. 3 submits that an amount of Rs. 55,88,920/- towards compensation as awarded by the respondent No. 2 was deposited by VUDA in the said office on 18-12-1997 and copies of forwarding letter as well as receipt are annexed herewith and marked as Annexure-B collectively. The respondent No. 3 submits that against the said land acquisition proceedings initiated by VUDA for the above referred public purpose, number of Special Civil Applications were preferred before the Hon'ble High Court of Gujarat challenging the land acquisition proceedings. It is submitted that such Special Civil Applications bearing No. 9349 of 1997, No. 4184 of 1995, No. 2097 of 2000, No. 3125 of 2003 came to be rejected by the Hon'ble High Court of Gujarat. It is submitted that as admitted by the petitioners, even Hon'ble Supreme Court of India dismissed the Special Leave Petition. It is submitted that ultimately the respondent No. 2 took over the possession of the land unilaterally and handed over to respondent No. 3 on 31/12/2003 and copies of letter and possession receipt are annexed herewith and marked as Annexure-C collectively. It is submitted that thereafter the name of VUDA is mutated in the revenue record of three villages i.e. Harni, Kotali, and Amaliara and copies of Village Form No. 6 and 8A are annexed herewith and marked as Annexure-D collectively." 13. In the affidavit in reply filed by the Special Land Acquisition Officer, following has been stated: "8. I say that after passing of award under section 11 of the Act, the notice is under section 12(2) of the Act was issued to the claimants however, the petitioner herein did not accept the amount of compensation voluntarily and therefore the amount was deposited under the revenue head on 7.12.1999. I say that after passing of award under section 11 of the Act, the notice is under section 12(2) of the Act was issued to the claimants however, the petitioner herein did not accept the amount of compensation voluntarily and therefore the amount was deposited under the revenue head on 7.12.1999. Annexed hereto and marked as Annexure-R-IV is the copy of receipt depositing the amount." 14. In Pune Municipal Corporation and anr.(supra), the Supreme Court interpreted the expression "compensation has not been paid" occurring in sub-section (2) of section 24 of the Act of 2013. In the context, while refusing to give literal interpretation to the term 'paid', it was held that as long as amount of compensation is deposited before the Reference Court, the same would be sufficient compliance. The Supreme Court referred to the provisions of sections 18 and 31 of the Act of 1894 in order to adopt such an interpretation. However, while doing so, the contention that mere deposit with the Government treasury would be sufficient compliance was rejected. We may reproduce the relevant portion of the judgment of the Supreme Court 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. 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 32and 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[AIR 1836 Privy Council 253(2)]) 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. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes, (2011) 11 SCC 506 , relying upon the earlier decision in Prem Nath Kapur, (1996) 2 SCC 71 ], 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." 15. The issue is thus squarely covered by the judgment of the Supreme Court in case of Pune Municipal Corporation and anr.(supra). 16. Added element of the compensation having been deposited before the Reference Court after 1.1.2014 i.e. date on which the Act of 2013 was brought into effect, also need not detain us for long. The statute created a new right under section 24(2) of the Act under which upon the essential requirements being fulfilled, necessary consequence of deeming fiction of acquisition having lapsed would arise. The statute created a new right under section 24(2) of the Act under which upon the essential requirements being fulfilled, necessary consequence of deeming fiction of acquisition having lapsed would arise. If the conditions are satisfied, this deeming fiction would take effect on the date the statute was enacted. Consequently, if on 1.1.2014, the requirements of section 24(2) of the Act were fulfilled, the acquisition proceedings would automatically be deemed to have lapsed. Any later inquiry by the Court and a formal declaration through the judgment would only be declaratory in nature and would relate to the date of 1.1.2014, when the event took place. The later deposit of the compensation before the Reference Court would not cure this defect nor the mere fact that such deposit was made before the declaration could be made by the Court, change this position. 17. Perhaps this discussion was not quite necessary since a very similar issue came up before the Supreme Court in case of (The) Working Friends Co-Operative House Building Society Ltd (supra). Necessary facts were recorded in the following manner: "12. With regard to the payment of compensation, it was stated in the additional affidavit that the compensation due to the appellant was deposited in the Government Treasury on 7th July, 1995 and the enhanced compensation was deposited in the Reference Court first on 3rd September, 2004 and thereafter on 24th February, 2012. It was further stated that the original compensation awarded to the appellant, that is, Rs. 35,52,528/- was subsequently deposited in the Reference Court by the Land Acquisition Collector on 26th June, 2014 after the Act came into force." This issue was dealt with by the Supreme Court in considerable detail and it was concluded as under: "19. Applying the law laid down by the Constitution Bench, it must be held that the appellant had an accrued right which must be recognized by Section 24(2) of the Act. The Ordinance which purported to take away such an accrued right would have to be treated as prospective unless the legislative intent was clearly to give it retrospective effect. As mentioned above, this issue does not arise in the present case but is being mentioned only to buttress the conclusion arrived at by this Court in Karnail Kaur and subsequent decisions. 20. As mentioned above, this issue does not arise in the present case but is being mentioned only to buttress the conclusion arrived at by this Court in Karnail Kaur and subsequent decisions. 20. In so far as the facts of the present appeal are concerned, there is considerable doubt whether the appellant is in possession of the acquired land or whether the respondents are in possession of the acquired land. It is not necessary for us to go into this issue at all. This is for the reason that one of the requirements mentioned in Section 24(2) of the Act is that the compensation should have either been paid to the land owner or should have been deposited in the Reference Court. The admitted position is that the compensation of Rs. 35,52,528/- was neither paid to the appellant nor was it deposited in the Reference Court. It was admittedly deposited in the Government Treasury of the State. The deposit was, apart from anything else, made only after the Act came into force and was perhaps with a view to get over the provisions of Section 24(2) of the Act and the prayer made in I.A. No. 4. Unfortunately, even the deposit of the compensation amount in the Reference Court on 26th June, 2014 does not come to the aid of the appellant under any circumstances and cannot be taken as "deemed payment". 18. Under the circumstances, all the petitions are allowed. It is declared that in terms of section 24(2) of the Act of 2013, acquisition proceedings with respect to the lands of all the petitioners have lapsed. The petitions are disposed of accordingly.