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2017 DIGILAW 343 (ALL)

ANEK SINGH v. STATE OF U. P.

2017-01-25

PRAMOD KUMAR SRIVASTAVA, TARUN AGARWALA

body2017
JUDGMENT Hon’ble Tarun Agarwala, J.—The facts leading to the filing of the writ petition is that the petitioners are the owners of Plot No. 1802 having an area of 1 Bigha, 6 Biswa and 15 Biswansi situate at Mauza Naraich, Tehsil Etmadpur, District-Agra. The said plot was acquired under the Land Acquisition Act by the State Government in favour of Agra Development Authority for the purpose of Trans Yamuna Avasiya Yojana (Kalindi Vihar). A notification under Section 4 read with Section 17 of the Land Acquisition Act (hereinafter referred to as the old Act) was issued on 3th of February, 1989. A declaration under Section 6 of the Act was issued on 5th of February, 1989. 2. It is alleged that notional possession of the land on paper was taken in favour of Agra Development Authority on 28th of October, 1989 and an award under Section 11 of the Act was made on 26th of October, 1990. The petitioners further contend that pursuant to the award, compensation was paid to the petitioners only to the extent of 1 Bigha of the acquired land on 29th of December, 1990 and 2nd of April, 1991. The petitioners thus contend that the compensation for the remaining area, namely, 6 Biswa and 15 Biswansi was not paid on the ground that the petitioners were in possession and that the construction of the petitioners was existing. 3. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the Act of 2013) was enacted by the Parliament w.e.f. 1st January, 2014. Section 24 of the Act of 2013 provided that the land acquisition process shall be deemed to have lapsed in certain cases. Section 24 (2) of the Act contemplated that where an award under Section 11 of the Land Acquisition Act 1894 (hereinafter referred to as the old Act, 1894) had been made five years or more prior to the commencement of the Act of 2013 but physical possession of the land has not been taken or the compensation has not been paid, in that eventuality, the acquisition proceeding shall be deemed to have lapsed and it would be open to the State Government to initiate acquisition proceedings afresh in accordance with the provisions of the Act of 2013. 4. 4. In view of the aforesaid provision, the petitioners filed Writ Petition No. 1153 of 2015, Anek Singh and 3 others v. State of U.P. and 3 others, praying that the acquisition proceedings have lapsed in view of the fact that the compensation had not been paid. The Writ Court, by an order dated 11th February, 2015 disposed of the petition directing the petitioner to move an appropriate application before the Principal Secretary, Urban Planning and Development, Government of U.P., Lucknow, who would consider and decide the same by a reasoned and speaking order within three months. 5. Pursuant to the said order, the petitioners filed an appropriate representation before the Principal Secretary, Awas and Urban Development, U.P. Government, Lucknow. The Principal Secretary, after considering the representation of the petitioners and the objection filed by the Agra Development Authority, passed the impugned order dated 1.1.2016 rejecting the representation of the petitioners holding that the acquisition proceedings had not lapsed. The Principal Secretary found that notional possession was with the Agra Development Authority and that their names have been mutated in the revenue records. Further, the development work in the form of road, drains, sewer-line and electricity had already been carried out. The Principal Secretary found that the compensation had been deposited by the Agra Development Authority before the Special Land Acquisition Officer and that the petitioners deliberately did not receive the compensation from the Special Land Acquisition Officer and therefore, the acquisition proceedings have not lapsed. The petitioner being aggrieved by the aforesaid order has filed the present writ petition praying not only for its quashing but also for a writ of mandamus praying that the acquisition proceedings with regard to Plot No. 1802 upto the extent of 6 Biswa 15 Biswansi stood lapsed in view of Section 24 (2) of the Act of 2013. 6. We have heard Sri H.N. Singh, the learned Senior Counsel assisted by Sri Shiv Raj Singh on behalf of the petitioners, Sri M.C. Chaturvedi, the learned Senior Counsel assisted by Sri Suresh Chandra Dwivedi for the Agra Development Authority and the learned Standing Counsel for the State of U.P. 7. The short question that arises for consideration is, whether the acquisition proceedings, which were initiated under the old Act had lapsed in view of the provisions of Section 24(2) of the Act of 2013 or not? The short question that arises for consideration is, whether the acquisition proceedings, which were initiated under the old Act had lapsed in view of the provisions of Section 24(2) of the Act of 2013 or not? The stand of the Agra Development Authority as reflected in the impugned order as well as in the counter-affidavit is, that their names have already been mutated in the revenue records. The possession of the land is with the respondents but the petitioners have illegally occupied it again. Further, the development works have already been carried out on the land in question and that the entire compensation had already been deposited with the Special Land Acquisition Officer. Further, the petitioners deliberately did not take compensation for the remaining plot measuring 6 Biswa and 15 Biswansi and therefore, on account of the fault of the petitioners, the acquisition proceedings cannot lapse. 8. The admitted position that is culled out from the assertions made by the petitioners and the respondents are that the land was acquired under Sections 4 and 6 of the old Act. An award was made on 26.10.1990. Compensation for 1 Bigha was paid to the petitioners on 29th of December, 1990 and 2nd of April 1991. No compensation, admittedly, was paid to the petitioners for the remaining land which was acquired, namely, 6 Bigha and 15 Biswansi of Plot No. 1802. 9. In the light of the aforesaid admitted position, it would be essential to refer to the provisions of Section 24 of the Act of 2013. For facility, the same is extracted here under : “24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.—(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),— (a) where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 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 holdings 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.” 10. The aforesaid provision was interpreted by the Supreme Court in Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others, (2014) 3 SCC 183 , wherein, the Supreme Court held as under : “10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of the 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24(1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed. 11. Section 24(2) also begins with non-obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under the 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate Government still chooses to acquire the land which was the subject-matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under the 2013 Act. 17. ............ 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.” 11. The Supreme Court in Pune Municipal Corporation (supra) held that if either of the two contingencies contemplated under Section 24 (2) are satisfied, namely, physical possession of the land has not been taken or the compensation has not been paid, in which case, such acquisition proceedings shall be deemed to have lapsed. The Supreme Court further held that the compensation has to be offered to the person interested and if the compensation has not been paid to the person interested then such compensation is required to be deposited in the reference Court. The Supreme Court further held that the Collector discharges his obligation if the compensation is deposited in the Court otherwise the obligation is not discharged. 12. The Supreme Court further held that the Collector discharges his obligation if the compensation is deposited in the Court otherwise the obligation is not discharged. 12. The aforesaid decision of the Supreme Court in Pune Municipal Corporation (supra) was followed in Bimla Devi and others v. State of Haryana and others, (2014) 6 SCC 583 at para 3; Union of India (UOI) and others v. Shiv Raj and others, (2014) 6 SCC 564 at para 22: ( AIR 2014 SC 2242 ); Sree Balaji Nagar Residential Association v. State of Tamil Nadu, (2015) 3 SCC 353 at para 14; State of Haryana v. Vinod Oil and General Mills, 2014 (15) SCC 410 at para 21; Sita Ram v. State of Haryana and another, (2015) 3 SCC 597 at paras 19, 21: (2014 AIR SCW 6625); Ram Kishan and others v. State of Haryana and others, (2015) 4 SCC 347 at paras 8, 9, 12: ( AIR 2015 SC 440 ); Velaxan Kumar v. Union of India and others, 2015 (4) SCC 325 at para 15. 13. The Supreme Court again in Delhi Development Authority v. Skukhbir Singh and others, AIR 2016 SCC 4275, held that the statutory scheme of the old Act, 1894 makes it apparently clear that the Collector was required to tender the payment of compensation awarded to the persons, who are interested and entitled thereto according to the award. Such person had to be paid the sum mentioned in the award. Further, the Supreme Court held that it is the duty of the Collector to make the payment as soon as possible after making the award and only in a situation where the person interested refuses to receive the compensation payable or where no person competent is there to receive the compensation or in the eventuality that there is a dispute as to the title to receive compensation or its apportionment, in that eventuality, the Collector was required to deposit the amount of compensation in the reference Court. The Supreme Court held: “12. The Supreme Court held: “12. Section 24 (1) begins with a non-obstante clause and covers situations where either no award has been made under the Land Acquisition Act, in which case the more beneficial provisions of the 2013 Act relating to determination of compensation shall apply, or where an award has been made under Section 11, land acquisition proceedings shall continue under the provisions of the Land Acquisition Act as if the said Act had not been repealed. 13. To Section 24(1)(b) an important exception is carved out by Section 24(2). The necessary ingredients of Section 24(2) are as follows: (a) Section 24(2) begins with a non-obstante clause keeping sub-section (1) out of harm’s way; (b) For it to apply, land acquisition proceedings should have been initiated under the Land Acquisition Act; (c) Also, an award under Section 11 should have been made 5 years or more prior to the commencement of the 2013 Act; (d) Physical possession of the land, if not taken, or compensation, if not paid, are fatal to the land acquisition proceeding that had been initiated under the Land Acquisition Act; (e) The fatality is pronounced by stating that the said proceedings shall be deemed to have lapsed, and the appropriate Government, if it so chooses, shall, in this game of snakes and ladders, start all over again. 14. The picture that therefore emerges on a reading of Section 24(2) is that the State has no business to expropriate from a citizen his property if an award has been made and the necessary steps to complete acquisition have not been taken for a period of five years or more. These steps include the taking of physical possession of land and payment of compensation. What the legislature is in effect telling the executive is that they ought to have put their house in order and completed the acquisition proceedings within a reasonable time after pronouncement of award. Not having done so even after a leeway of five years is given, would cross the limits of legislative tolerance, after which the whole proceeding would be deemed to have lapsed. It is important to notice that the Section gets attracted if the acquisition proceeding is not completed within five years after pronouncement of the award. Not having done so even after a leeway of five years is given, would cross the limits of legislative tolerance, after which the whole proceeding would be deemed to have lapsed. It is important to notice that the Section gets attracted if the acquisition proceeding is not completed within five years after pronouncement of the award. This may happen either because physical possession of the land has not been taken or because compensation has not been paid, within the said period of five years. A faint submission to the effect that ‘’or’ should be read as ‘’and’ must be turned down for two reasons. The plain natural meaning of the sub-section does not lead to any absurdity for us to replace language advisedly used by the Legislature. Secondly, the object of the Act, and Section 24 in particular, is that in case an award has been made for five years or more, possession ought to have been taken within this period, or else it is statutorily presumed that the balance between the citizen’s right to retain his own property and the right of the State to expropriate it for a public purpose gets so disturbed as to make the acquisition proceedings lapse. Alternatively, if compensation has not been paid within this period, it is also statutorily presumed that the aforesaid balance gets disturbed so as to free such property from acquisition.” 14. In the light of the aforesaid, it is apparently clear that in the instant case, the award was made under Section 11 of the Act more than 5 years prior to the commencement of the Act of 2013. There is a dispute as to whether physical possession of the land was taken by the respondents. It is, however, not necessary for the Court to dwell on the subject as it becomes immaterial since the second ingredient of Section 24 (2) of the Act of 2013 would cover the situation, namely, that the compensation has not been paid for 6 Bigha and 15 Biswansi to the petitioners by the respondents. The fact that Agra Development Authority had deposited the compensation before the Special Land Acquisition Officer is immaterial. What is the material is, that in the event, the petitioners refuses to accept the compensation, the obligation upon the Collector is to deposit the compensation in the reference Court. The fact that Agra Development Authority had deposited the compensation before the Special Land Acquisition Officer is immaterial. What is the material is, that in the event, the petitioners refuses to accept the compensation, the obligation upon the Collector is to deposit the compensation in the reference Court. Only when the Collector deposits the compensation in the Court that the obligation imposed upon the Collector is discharged otherwise the obligation is not discharged and the acquisition proceedings would be deemed to have lapsed under Section 24(2) of the Act of 2013. 15. We find that the Principal Secretary has rejected the contention of the petitioners on the ground that the entire compensation was deposited by the Agra Development Authority before the Special Land Acquisition Officer and the petitioners deliberately did not take compensation for the remaining 6 Bigha and 15 Biswansi of the land in question. Both the grounds are immaterial in the light of the decisions of the Supreme Court. The mere fact that the Agra Development Authority has deposited the amount before the Special Land Acquisition Officer is immaterial. The Collector is required to deposit the amount if not paid to the petitioners before the reference Court which in the instant case has not been done. The mere fact that the petitioners refused to receive compensation also become immaterial. What is material is that the Collector’s obligation is to offer the compensation to the petitioners, which in the instant case is lacking and nothing has been brought on record to indicate that the petitioners were requested to lift the compensation. Further, the obligation of the Collector does not end merely because the petitioners refused to lift the compensation. The obligation of the Collector continues till such time the compensation is not deposited before the reference Court. 16. Since compensation for the land measuring 6 Biswa and 15 Biswansi has not been paid to the petitioners, the provision of Section 24 (2) of the Act of 2013 will come into play. We have no hesitation in holding that the acquisition proceedings for 6 Biswa and 15 Biswansi from Plot No. 1802 has lapsed since no compensation was paid to the petitioners. 17. In view of the aforesaid discussion, the impugned order dated 1.1.2016 passed by the Principal Secretary, Awas and Urban Development, U.P., Lucknow, cannot be sustained and is hereby quashed. 18. The writ petition is allowed. 17. In view of the aforesaid discussion, the impugned order dated 1.1.2016 passed by the Principal Secretary, Awas and Urban Development, U.P., Lucknow, cannot be sustained and is hereby quashed. 18. The writ petition is allowed. We, accordingly, hold that the acquisition proceedings of 6 Biswa and 15 Biswansi from Plot No. 1802 belonging to the petitioners shall be deemed to have lapsed.