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2017 DIGILAW 31 (MEG)

State of Meghalaya v. Pawan Bawri

2017-05-17

DINESH MAHESHWARI, VED PRAKASH VAISH

body2017
JUDGMENT : Dinesh Maheshwari, J. By way of this application, the applicants seek review of the order dated 16.12.2015 as passed in WP (C) No.155 of 2015 whereby, this Court held that the proceedings for acquisition of the land in question had lapsed by virtue of Section 11-A of the Land Acquisition Act, 1894 ['the Act of 1894'] way back in the year 2008. 2. Put in brief, the relevant background aspects of the matter are as follows: The respondent herein (writ petitioner), son of Late Shri JN Bawri, filed the writ petition aforesaid while questioning the land acquisition proceedings in relation to the property known as "Maxwelton Estate" situated at Kench's Trace, Shillong. It was alleged that the said property comprising of two plots were purchased by Late Shri B. Borooah under a registered Sale Deed dated 05.07.1920 and the same was mutated in his name by virtue of the order dated 26.08.1985 as passed by the Deputy Commissioner, East Khasi Hills District, Shillong in Mutation Case No.1 of 1985 and the order dated 09.06.1988 as passed by the Meghalaya Board of Revenue in MBR/RA No.2 of 1985. It was also pointed out that the writ petitions filed by the State Government challenging the said mutation orders were dismissed by the Gauhati High Court on 06.08.1999. It was further submitted that Shri Chittaranjan Borooah, son of the said Late Shri B. Borooah, inherited the said Maxwelton Estate and entered into a registered loan agreement dated 24.08.1993 with the father of the writ petitioner (the respondent herein) whereby, a right was conferred in favour of the latter to recover the loan by selling the property in question. 3. At this juncture, the relevant aspects relating to the proceedings for acquisition of the land in question may be noticed. The said acquisition proceedings commenced with issuance of a notification under Section 4 of the Act of 1894 by the State Government on 05.01.2001; and while invoking urgency, another notification under Section 17 (4) of the Act of 1894 was also issued. Ultimately, the State Government issued the declaration under Section 6 of the Act of 1894 on 19.01.2001. 4. It is noticed that assailing the aforesaid acquisition notifications, Smti. Ultimately, the State Government issued the declaration under Section 6 of the Act of 1894 on 19.01.2001. 4. It is noticed that assailing the aforesaid acquisition notifications, Smti. Krishna Baruah, wife of the said Shri Chittaranjan Borooah, filed a writ petition bearing No.505 of 2001 [re-numbered as WP(C) No. 44 (SH) of 2003] wherein, an interim order was passed on 24.01.2001 that 'the respondent Government shall not give effect' to the said notifications dated 05.01.2001 and 19.01.2001. The said writ petition bearing No.44 (SH) of 2003 was dismissed in default on 06.12.2006 but was restored on 23.02.2007. However, finally, the said writ petition was dismissed on merits on 13.04.2007. It is noticed further that assailing this order dated 13.04.2007, an intra-court appeal bearing No.168 of 2007 [re-numbered as WA No.9 of 2013] was filed wherein, an interim order was passed on 27.04.2007 to the effect that 'possession of the appellant shall not be disturbed'. The said intra-court appeal was, however, finally dismissed on 10.02.2014. The respondent of this review application, though not a party to the said writ petition and to the said intra-court appeal, attempted to question the order dated 10.02.2014 by way of a Petition for Special Leave to Appeal before the Hon'ble Supreme Court but the same was also dismissed on 02.05.2014. 5. With reference to the aforesaid facts and while asserting his direct interest in the property in question as heir and successor of his father, the present respondent preferred the writ petition [WP (C) No.155 of 2015] in this Court with the assertion that he was the "person interested" within the meaning of Land Acquisition Act, 1894 as also within the meaning of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ['the Act of 2013']. The respondent submitted that the issue of determination of fair compensation and his right to receive such compensation were not involved in the earlier writ petition filed by Smti. Krishna Baruah; and that by virtue of the provisions contained in the Act of 2013, it was obligatory for the State Government to issue a proper notification under Section 11 thereof so as to determine the just and proper compensation for the land in question. Krishna Baruah; and that by virtue of the provisions contained in the Act of 2013, it was obligatory for the State Government to issue a proper notification under Section 11 thereof so as to determine the just and proper compensation for the land in question. With these submissions, the respondent prayed for the following relief’s :- "In the premises aforesaid, it is prayed that your Lordships may be pleased to call for records, issue a Rule calling upon the respondents to show cause as to why a writ in the nature of mandamus should not issue directing the respondents to issue a proper Notification under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, to determine the compensation for acquisition of 7.879 Acres (3,43,209.20 Sq.Ft.) of land out of the "Maxwelton Estate" living aside the residential house of the petitioner as on the date of issuance of such Notification under Section 11 of the new LA Act, 2013 and to pay the compensation to the petitioner for acquisition of the said land in respect of land acquisition proceedings of portion of Maxwelton Estate, Shillong initiated vide Notification No. RDA 1/2001/39 dated 05 January 2001 under Section 4 of the Land Acquisition Act, 1894 and on cause or causes being shown and after hearing the parties be pleased to make the Rule absolute and/or may pass such further or other order or orders as Your Lordships may deem fit and proper." 6. While dealing with the said writ petition in the impugned order dated 16.12.2015, a Division Bench of this Court referred to the past proceedings, including those in the writ petition and writ appeal filed by the said Smti. Krishna Baruah, and then, with reference to Section 11-A of the Act of 1894 held that the proceedings for land acquisition had lapsed in the year 2008. The considerations in the order impugned dated 16.12.2015, as occurring in paragraph 8 thereof, read as under:- "8. Under the provisions of Section 11-A of the LA Act of 1894, the Collector shall make an award under Section 11 of the LA Act of 1894 within a period of two years from the date of publication of the declaration i.e. 19.01.2001 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. However, the period of stay shall be excluded in calculating the period of two years mentioned in Section 11-A of the LA Act of 1894. In order to see as to when the period of two years mentioned in Section 11-A of the LA Act of 1894 was expired in the present case, tabulation is made hereunder :- Sections of land acquired under the LA Act of 1894 Date of order/declaration Days Interim order Notification under Section 4 and under Section 17(4) of the LA Act of 1894 05.01.2001 Order of the High Court dated 24.01.2001 passed in WP(C) 44 (SH) 2001-"in the meantime the respondent Government shall not give effect to the notification dated 05.01.2001 and another notification dated 19.01.2001 until further orders". Declaration under Section 6 of the LA Act 19.1.2001. WP(C)No.44 of 2001* dismissed for default-stay order vacated Vide order of the High Court dated 16.12.2006 Though the writ petition was dismissed for default on 06.12.2006 and it was restored on 23.02.2007, but the stay order was no restored WP(C)No.44 of 2001* was restored but interim order was not restored Vide order of the High Court dated 23.02.2007 WP(C)No.44 of 2001* was finally dismissed after hearing Vide final order of the High Court dated 13.04.2007 WA No.9 of 2007* filed on 25.04.2007 No stay of the Land Acquisition Proceedings." From the above chart, it is crystal clear that the period of two years mentioned in Section 11-A of the LA Act of 1894 from the date of the said declaration dated 19.01.2001 under Section 6 of the LA Act of 1894 had been expired in the year 2008. Accordingly, the land acquisition proceedings under the said declaration dated 19.01.2001 shall stand lapsed in the year 2008."(1) (1) The particulars of writ petition and writ appeal as stated in the order impugned appear to be incorrect. The writ petition was initially filed in the year 2001 but was re-numbered as WP(C) No.44 (SH) of 2003; and the intra-court appeal was initially filed in the year 2007 but was re-numbered as WA No.9 of 2013. 7. In view of the above, the Division Bench concluded that as on the date of enforcement of the Act of 2013, the proceedings for land acquisition were not pending and hence, any award prepared by the Collector would remain void and effective. 7. In view of the above, the Division Bench concluded that as on the date of enforcement of the Act of 2013, the proceedings for land acquisition were not pending and hence, any award prepared by the Collector would remain void and effective. The Division Bench, therefore, allowed the writ petition with liberty to the State Government to initiate the land acquisition proceedings afresh in accordance with law while observing as under:- "17. As stated above, the land acquisition proceedings pursuant to the declaration dated 19.01.2001 under Section 6 of the LA Act of 1894 had already been lapsed in the year 2008 under Section 11-A of the LA Act of 1894. As such, there was no pending land acquisition proceedings when the new Act i.e. New Land Acquisition Act of 2013 came into force on 01.01.2014. Therefore, the provisions of the New Land Acquisition Act of 2013 will not be applicable to the land acquisition proceedings in consequence of the declaration dated 19.01.2001 which had already been lapsed in the year 2008 inasmuch as the provisions of the New Land Acquisition Act of 2013, will be applicable only to the pending land acquisition proceedings. Any award prepared by the Collector under the New Land Acquisition Act of 2013 in consequence of the declaration dated 19.01.2001 under Section 6 of the LA Act of 1894 will be void for the simple reason that there was no pending land acquisition proceedings under the LA Act of 1894 in pursuance of the declaration dated 19.01.2001 under Section 6 of the LA Act of 1894 at the time of enforcement of the New Land Acquisition Act on 01.01.2014. 18. For the foregoing reasons, there is no alternative for the State respondents except to initiate new land acquisition proceedings under the New Land Acquisition Act of 2013 for acquiring part of Maxwelton Estate mentioned in the declaration dated 19.01.2001. In the case of initiating new land acquisition proceedings, the procedure prescribed in the New Land Acquisition Act of 2013 for preparing the award and also for giving sufficient notice and opportunity to the interested persons for putting up their case and interest in the land to be acquired shall be strictly followed. The award, if any, prepared by the Collector of the Land Acquisition under the New Land Acquisition Act of 2013 for the land mentioned in the declaration dated 19.01.2001 shall stand quashed. The award, if any, prepared by the Collector of the Land Acquisition under the New Land Acquisition Act of 2013 for the land mentioned in the declaration dated 19.01.2001 shall stand quashed. 19. Writ petition is allowed." 8. Seeking review of the order aforesaid, the basic contentions on behalf of the present petitioners are that the respondent (writ petitioner) is not answering to the description of the "person interested" under Section 3 (x) of the Act of 2013 and hence, is not entitled to question the land acquisition proceedings and has no locus standi to maintain the writ petition. It is also submitted that the fact of dismissal of the writ petition filed by the owner of the land in question has escaped appropriate attention of the Court. 9. Learned counsel for the respondent has referred to the decision of the Hon'ble Supreme Court in the case of Government of NCT of Delhi v. Manav Dharam Trust and Another: Civil Appeal No. 6112 of 2017 decided on 04.05.2017 and has submitted that the writ petitioner answers to the wide connotation of the term "person interested" and has the locus standi to question the acquisition proceedings. Learned counsel has also submitted that so far the decisions in the previous writ petition by Smti. Krishna Baruah wife of Late Shri Chittaranjan Borooah and in the appeals arising there from are concerned, only the notification under Section 4 of the Act of 1984 and the declaration under Section 6 of the Act of 1894 were in question therein; and dismissal of the said writ petition and the said appeals is of no bearing on the subject-matter of the writ petition filed by the present respondent, based on a different cause of action and for different relief’s. 10. Though the principal grounds on which the review application has been framed and filed in the Court are being contested by the respondent however, while examining the record and the order impugned, we have noticed a different, but fundamental, flaw in this matter where for it is rather imperative that the order impugned be recalled and the matter be posted for hearing afresh. This is for the reasons indicated infra. 11. This is for the reasons indicated infra. 11. It is noticed that in the impugned order, after referring to Section 11-A of the Act of 1894 and the dates of passing of different orders in WP(C) No. 44 of 2003 [wrongly mentioned as WP(C) No. 44 of 2001] as also in WA No. 9 of 2013 [wrongly mentioned as WA No.9 of 2007], this Court proceeded to hold that the acquisition proceedings lapsed in the year 2008 by virtue of Section 11-A of the Act of 1894 because no award was made by that time. These observations were made essentially with reference to the assumptions that: (i) there was no order for restoration of the stay order when WP (C) No.44 of 2003 was restored on 23.02.2007; and (ii) there was no stay over the land acquisition proceedings in WA No. 9 of 2013. 12. It is thus clear that while passing the impugned order dated 16.12.2015, this Court proceeded on the assumptions that restoration of a petition by itself does not lead to restoration of stay order therein; and that in a petition questioning the land acquisition proceedings, stay of dispossession does not arrest the limitation for the purpose of Section 11-A of the Act of 1894. When these assumptions are not countenanced by law and are removed out of consideration, the very substratum of the impugned order dated 16.12.2015 is lost and in our view, there is no option except to recall the order impugned and to re-hear the writ petition on merits. 13. It is not a rule of universal application that whenever a petition is dismissed in default and stay is vacated, restoration of the petition does not result in restoration of stay order. Nothing is found on record to infer that while restoring the writ petition, Court never intended to continue with the stay order, which was operating earlier. This apart, the purport and effect of the stay order in WA No.9 of 2013 [Old No.168 of 2007] appear to have been misconstrued in the order impugned and such an error, going to the root of the matter, cannot be ignored. 14. It is not in dispute that on 27.04.2007, the Division Bench had passed the interim order in relation to the acquisition proceedings in question that possession of the appellant therein shall not be disturbed. 14. It is not in dispute that on 27.04.2007, the Division Bench had passed the interim order in relation to the acquisition proceedings in question that possession of the appellant therein shall not be disturbed. The operation of this stay order effectively arrested the limitation for the purpose of Section 11-A of the Act of 1894, as is evident from the plain provisions of the statute as also from the law settled by the Supreme Court. Section 11-A of the Act of 1894 had been as under:- "11-A. Period within which an award shall be made.- (1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an Order of a Court shall be excluded." 15. When taking of possession forms an integral part of the proceedings relating to land acquisition, any interim stay against the action of taking possession has to be taken into consideration in terms of the explanation to Section 11-A of the Act of 1894; and the period of such a stay has to be excluded for the purpose of computing the envisaged period of two years for making the award. The Hon'ble Supreme Court has explained the wide import and operation of the explanation to Section 11-A in the case of Yusufbhai Noormohmed Nendoliya v. State of Gujarat and another: AIR 1991 SC 2153 in the following:- "8. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under Section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made and we see no reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case is covered by Section 17 or otherwise. On the other hand, it appears to us that the Explanation is intended to confer a benefit on a land-holder whose land is acquired after the declaration under Section 6, is made in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the land-holder. In order to get the benefit of the said provision what is required, is that the land-holder who seeks the benefit must not have obtained any order from a Court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those land-holders who do not obtain any order from a Court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment." (underlining supplied for emphasis) 16. The said position of law has been reiterated by the Hon'ble Supreme Court in several of its subsequent decisions. Suffice it would be to notice for the present purpose the decision in M. Ramalinga Thevar v. State of T.N. and others : (2000) 4 SCC 322 wherein, the Hon'ble Supreme Court has summed up the position of law in the following: "10. Thus, the position is now well settled that even when dispossession alone is stayed by the Court the period during which such stay operates would stand excluded from the time fixed for passing the award, the expiry of which would render the acquisition proceedings lapsed. Thus, the position is now well settled that even when dispossession alone is stayed by the Court the period during which such stay operates would stand excluded from the time fixed for passing the award, the expiry of which would render the acquisition proceedings lapsed. In the light of the said interpretation it is now idle to contend that the Government is debarred from proceeding with the acquisition. The appeal is accordingly dismissed." (underlining supplied for emphasis) 17. Similarly, in the case of Government of T.N. and another v. Vasantha Bai: 1995 Supp (2) SCC 423, the same view has been reiterated by the Hon'ble Supreme Court as in the case of Yusufbhai Noormohmed Nendoliya. 18. In the case of Bailamma (Smt) alias Doddabailamma and others v. Poornaprajna House Building Cooperative Society and others: (2006) 2 SCC 416 , the Hon'ble Supreme Court has further pointed out that exclusion of the period of operation of stay is not dependent on the fact as to which party obtained the stay order from the Court, particularly when the order operates in such a manner that the Government is prevented from granting approval of the award, if so desired. The Hon'ble Supreme Court has, inter alia, pointed out that,- "16. ....The Explanation is in the widest possible terms which do not limit its operation to cases where an order of stay is obtained by a landowner alone. One can conceive of cases where apart from landowners others may be interested in stalling the land acquisition proceeding. It is no doubt true that in most of the reported decisions the party that obtained the stay order happened to be the owner of the land acquired. But that will not lead us to the conclusion that the Explanation applied only to cases where stay had been obtained by the owners of the land. There may be others who may be interested in obtaining an order of stay being aggrieved by the acquisition proceeding. It may be that on account of development of that area some persons in the vicinity may be adversely affected, or it may be for any other reason that persons in the locality are adversely affected by the project for which acquisition is being made. One can imagine many instances in which a person other than the owner may be interested in defeating the acquisition proceeding. One can imagine many instances in which a person other than the owner may be interested in defeating the acquisition proceeding. Once an order of stay is obtained and the Government and the Collector are prevented from taking any further action pursuant to the declaration, they cannot be faulted for the delay, and therefore, the period during which the order of stay operates must be excluded. In a sense, operation of the order of stay provides a justification for the delay in taking further steps in the acquisition proceeding for which the authorities are not to blame." 19. In view of the plain provisions in Section 11-A of the Act of 1894 and further in view of the principles expounded by the Supreme Court, it remains beyond the pale of doubt that the period during which stay over dispossession remained in operation i.e., from 27.04.2007 to 10.02.2014, is required to be excluded while computing the period of two years for the purpose of Section 11-A ibid. This exclusion has to be made irrespective of the fact that such stay order was passed in the writ appeal filed by Smti. Krishna Baruah and not by the present respondent. Thus, evident it is that the observations and assumptions in the impugned order do not stand in conformity with the plain provisions of Section 11-A ibid. as also the above mentioned binding decisions of the Hon'ble Supreme Court; and, obviously, the order impugned cannot sustain itself. 20. For what has been observed hereinabove, we find that the order impugned discloses such errors, which are apparent on the face of record and the entire matter deserves re-consideration. 21. We would hasten to observe that even when the matter is posted for reconsideration, all the contentions/objections of the respective parties shall remain open for consideration including the grounds on which the review application has been framed and on which, we have not expressed any final opinion in this order. 22. On perusal of the record, it is also noticed that during consideration of WP (C) No. 155 of 2015, this Court passed two stay orders, one on 15.10.2015 directing status-quo as then existing to be maintained and another on 19.11.2015 against dispossession of the land owners. 22. On perusal of the record, it is also noticed that during consideration of WP (C) No. 155 of 2015, this Court passed two stay orders, one on 15.10.2015 directing status-quo as then existing to be maintained and another on 19.11.2015 against dispossession of the land owners. Having regard to the circumstances of the case and to avoid any ambiguity, it is just and proper that the said stay orders be also revived, to be operative until final disposal of the writ petition. 23. Accordingly and in view of the above, this review application is allowed; the impugned order dated 16.12.2015 is recalled; and WP(C) No. 155 of 2015 is restored for reconsideration on its merits and with the observations foregoing. The stay orders as passed in the writ petition on 15.10.2015 and 19.11.2015 shall stand revived and shall continue to operate until final disposal of the writ petition. As already observed, all the submissions of the parties shall remain open for consideration in the writ petition; and for that matter, the parties are allowed to file additional/supplementary affidavits, if so desired. 24. The writ petition be restored to its original number and be placed for hearing after six weeks, as prayed.