Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 732 (ALL)

HORI LAL v. STATE OF U. P.

2017-03-09

DILIP GUPTA, SIDDHARTHA VARMA

body2017
JUDGMENT By the Court.—These petitions have been filed for quashing the notification dated 30 October 2002 issued under Section 4(1) of the Land Acquisition Act, 1894 (the 1894 Act) by which land measuring 74.277½ hectares in 22 villages in District Varanasi was acquired for construction of Varanasi-Bypass (Ring Road) through the National Highway Division No. -1 of the Public Works Department in Varanasi. In some of the writ petitions, prayer has also been made for payment of compensation under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (the 2013 Act) by treating the date of the award of the Collector as the date on which the market value of the land should be determined. It transpires from the records of the writ petitions that after the publication of the notification under Section 4(1) of the 1894 Act, a declaration under Section 6 of the 1894 Act was made on 29 November 2003 and awards were made in 2015 and 2016. The respondents have determined the market value of the land treating 1 January 2014 (the date on which the 2013 Act came into force) as the date on which the market value of the land should be determined. 2. During the course of hearing of the writ petitions, Sri M.D. Singh ‘Shekhar’, learned Senior Counsel for the petitioners assisted by Sri K.S. Shukla, however, stated that the petitioners in larger public interest are not challenging the acquisition proceedings but are only interested in payment of compensation under the provisions of the 2013 Act but the date of the award of the Collector should be treated as the date on which the market value of the land should be determined. To support his contention for enhancement of the compensation, learned Senior Counsel has placed before the Court the provisions of sub-sections (1) and (2) of Section 24 of the 2013 Act as also the award dated 3 April 2015 enclosed with the supplementary-affidavit that was made for land that was acquired in Pargana-Shivpur, Tehsil Sadar-Varanasi in District Varanasi by the National Highways Authority of India (the Authority) for widening of the road. 3. 3. Sri R.K. Ojha, learned Senior Counsel for the respondent-Authority assisted by Sri Pranjal Mehrotra and the learned Standing Counsel appearing for the State-respondent have, however, submitted that the awards have been made by applying the principles provided for in the 2013 Act and the date for determination of the market value of the land has to be taken as 1 January 2014 on which date the 2013 Act came into force. This has been done in view of the opinion of the Central Government contained in the Circular dated 26 October 2015 which was given under Section 113 of the 2013 Act. This Circular provides that if the preliminary notification under Section 4(1) of the 1894 Act was issued and no award had been made under Section 11 of the 1894 Act, then the reference date for calculation of the market value under the 2013 Act should be 1 January 2014. 4. We have considered the submissions advanced by learned Senior Counsel for the parties. 5. It is no doubt true that the proceedings for acquisition of land were initiated under the provisions of the 1894 Act since the notification under Section 4(1) was made under the 1894 Act. Section 24(1)(a) of the 2013 Act provides that in case proceedings have been initiated under the provisions of the 1894 Act and the award has not been made under Section 11 of the 1894 Act, then all the provisions of the 2013 Act relating to determination of the compensation shall apply. It is also not in dispute that the awards that have been made in 2015 and 2016 have applied the provisions of the 2013 Act for determination of the compensation. What has, however, been submitted by Sri M.D. Singh ‘Shekhar’, learned Senior Counsel for the petitioners is that the date for determination of the market value should be the date of the award and not 1 January 2014. 6. This submission is not based on any provision of the 2013 Act. According to the learned Senior Counsel for the petitioners, this method should be adopted as a matter of concession given by the petitioners to save the acquisition since it stood lapsed under Section 24(2) of the 2013 Act. 7. 6. This submission is not based on any provision of the 2013 Act. According to the learned Senior Counsel for the petitioners, this method should be adopted as a matter of concession given by the petitioners to save the acquisition since it stood lapsed under Section 24(2) of the 2013 Act. 7. Learned Senior Counsel has also submitted when land had been acquired under the provisions of the National Highways Act, 1956 (the 1956 Act) by issuance of a notification under Section 3-A on 1 December 2014 for widening of the National Highway No. 29 (Varanasi to Ghazipur) and the award was also made on 3 April 2015, the same market value of the land should have been determined by the Special Land Acquisition Officer while making the awards but that has not been done. In effect, the submission of learned Senior Counsel for the petitioners is that the market value of the land for determining the compensation should be enhanced and this can be done by changing the date on which the market value of the land should be determined to be the date of award and not to treat it as 1 January 2014. 8. In order to appreciate the contentions advanced by learned Senior Counsel for the parties, it will be appropriate to refer to Section 24 of the 2013 Act and it is reproduced below : “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.” 9. Sub-section (1) of Section 24 of the 2013 Act provides that if land acquisition proceedings have been initiated under the provisions of the 1894 Act but award has not been made under Section 11 of the 1894 Act, then all the provisions of the 2013 Act relating to determination of the compensation shall apply. In the present case, it is not in dispute that the provisions of the 2013 Act have been applied for determination of the compensation. Sub-section of (2) of Section 24 provides that in case where land acquisition proceedings have been initiated under the provisions of the 1894 Act and award has been made under Section 11 of the said Act five years or more prior to 1 January 2014 but physical possession of the land has not been taken or compensation has not been paid, the said proceedings shall be deemed to have lapsed. The contention of learned Senior Counsel for the petitioners is that the proceedings stand lapsed since physical possession of the land has not been taken. 10. Sri R.K. Ojha, learned Senior Counsel for the Authority has, however, submitted that sub-section (2) of Section 24 would have no application as the award has not been made five years or more prior to 1 January 2014 and, therefore, it cannot be said that the acquisition proceedings have lapsed. 11. 10. Sri R.K. Ojha, learned Senior Counsel for the Authority has, however, submitted that sub-section (2) of Section 24 would have no application as the award has not been made five years or more prior to 1 January 2014 and, therefore, it cannot be said that the acquisition proceedings have lapsed. 11. It is not possible to accept the contention of learned Senior Counsel for the petitioners that the proceedings have lapsed under Section 24(2) of the 2013 Act for the simple reason that the awards were made in 2015 and 2016 much after 1 January 2014 and not prior to five years. What has, however, been emphasised by learned Senior Counsel for the petitioners is that the date for determination of the market value of the land should be the date on which awards were made by the Special Land Acquisition Officer in 2015 and 2016 and not 1 January 2014. This submission cannot be accepted in view of the provisions of Section 26 of the 2013 Act. Section 26 provides the criteria for determining the market value of the land by the Collector. The proviso to Section 26 states that the date for determination of market value shall be the date on which the preliminary notification has been issued under Section 11 of the 2013 Act. In the instant case, the preliminary notification was issued under Section 4(1) of 1894 Act. The Central Government under Section 113 of the 2013 Act has the power to remove difficulty. Section 113 of the 2013 Act is as follows : “113. Power to remove difficulties.—(1) If any difficulty arises in giving effect to the provisions of this Part, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty: Provided that no such power shall be exercised after the expiry of a period of two years from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.” 12. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.” 12. To remove the difficulty, opinion was given by the Central Government under Section 113 of the 2013 Act which is as follows : “The reference date for calculation of market value, under Section 24(1)(a) should be 1.1.2014 (commencement of RFCTLARR Act, 2013), as the Section reads “in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, 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. Under Section 26 reference date is date of preliminary notification, but Section 24 is a special case of application of the Act in retrospective cases, and a later date of determination of market value is suggested (i.e. 1.1.2014) with a view to ensure that the land owners/farmers/affected families get enhanced compensation under the provisions of the RFCTLARR Act, 2013 (as also recommended by Standing Committee in its 31st report).” 13. Thus, 1 January 2014 has to be taken as the date on which the market value of the land has to be determined and it has been so determined. It is, therefore, not possible to accept the contention of learned Senior Counsel for the petitioners. However, if the petitioners are aggrieved by the determination of the compensation under the provisions of the 2013 Act, a remedy is provided for under Section 64 of the 2013 Act. It provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is payable, the rights of rehabilitation and resettlement under Chapter V and VI or the apportionment of the compensation among the persons interested. 14. In this view of the matter, in case the petitioners are aggrieved by the determination of the compensation other than the issue about the date on which the market value of the land should be calculated, they can take recourse to the provisions of the 2013 Act in accordance with the procedure prescribed therein. 15. 14. In this view of the matter, in case the petitioners are aggrieved by the determination of the compensation other than the issue about the date on which the market value of the land should be calculated, they can take recourse to the provisions of the 2013 Act in accordance with the procedure prescribed therein. 15. Thus, for all the reasons stated above, the relief pressed for by learned Senior Counsel for the petitioners cannot be granted. The writ petitions are, accordingly, dismissed subject to the aforesaid observations.