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2018 DIGILAW 120 (ALL)

Ajay Gupta v. State of U. P.

2018-01-11

DILIP GUPTA, JAYANT BANERJI

body2018
JUDGMENT : 1. The main relief that has been pressed for by Shri Ashok Mehta, learned Senior Counsel appearing for the petitioners assisted by Sri Manoj Kumar Pandey and Sri Pranjal Mehrotra at the time of hearing of the writ petition is that the acquisition proceedings initiated under the provisions of the Land Acquisition Act, 1894 shall be deemed to have lapsed under the provisions of Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 since though the award was made on 22 February 1990, but compensation has not been paid to the petitioners. 2. The records indicate that a notification dated 14 August 1987 was issued under Section 4(1) of the Act for acquisition of a large tract of land 1830.65 acres for construction of residential/commercial/industrial houses under a planned development scheme in District Meerut by the Meerut Development Authority. The petitioners claim to be owners of Plot Nos. 1082/2, 1082/3 and 1077 situated in Village Rithani, Pargana Tehsil, District Meerut. These plots were included in the aforesaid notification. The notification under Section 4(1) of the Act was followed by a declaration made under Section 6 of the Act on 4 September 1987. The aforesaid plots was also included in this declaration. The award was, thereafter, made under Section 11 of the Act on 22 February 1990. 3. The petitioners had earlier filed Writ Petition No. 23183 of 1987 to assail the acquisition and an interim order was granted on 14 September 1989 that in case the petitioners had not been dispossessed from the plots in dispute they shall not be dispossessed till 31 October 1989. This interim order was extended on 11 December 1989 till further orders of the Court. The writ petition was ultimately dismissed on 11 September 1991 with certain directions. It was left open to the petitioners to make a representation before the Development Authority for exemption of their land on which construction existed before the publication of the notification under Section 4(1) of the Act within six weeks. It was further directed that in case a representation was filed, the Development Authority will investigate into the matter and get the concerned plots surveyed and thereafter decide on the basis of the material produced by the petitioners and its own records within two months from the date of the receipt of the representation. It was further directed that in case a representation was filed, the Development Authority will investigate into the matter and get the concerned plots surveyed and thereafter decide on the basis of the material produced by the petitioners and its own records within two months from the date of the receipt of the representation. It was further directed that in case the Development Authority finds that the plots of the petitioners had pre notification constructions, it will make necessary recommendation to the State Government for exemption but if the Development Authority decides against any of the petitioners, it will be open to them to make representation before the Government within one month after the decision of the Development Authority and the Government would look into the grievance of the petitioners and pass an appropriate order expeditiously. It was further directed that till a decision was taken by the Government, status quo shall be maintained by the parties. 4. As noted above the award under Section 11 of the Act was made on 22 February 1990. The award also notes that a Division Bench of the High Court had passed interim orders staying the dispossession. 5. Learned Senior Counsel appearing for the petitioners has submitted that since the award was made five years or more prior to commencement of 2013 Act on 1 January 2014 and compensation has not been paid, the acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act. Learned Senior Counsel has also stated that even according to the respondents, compensation amount was deposited before the Treasury and not before the Court to which a reference under Section 18 of the Act could have been made as contemplated under Section 31 of the Act. 6. Shri Rohan Gupta, learned counsel appearing for the Development Authority has submitted that possession of the land belonging to the petitioners had been taken and given to the Development Authority. Learned counsel has referred to the paragraphs of the counter affidavit and has stated that though the Special Land Acquisition Officer had given notice to the petitioner for payment of compensation but with an oblique motives, the petitioners deliberately did not take the compensation and therefore they cannot take any advantage of Section 24(2) of the 2013 Act. Learned counsel has referred to the paragraphs of the counter affidavit and has stated that though the Special Land Acquisition Officer had given notice to the petitioner for payment of compensation but with an oblique motives, the petitioners deliberately did not take the compensation and therefore they cannot take any advantage of Section 24(2) of the 2013 Act. It has also been stated that after the acquisition of the land, development has taken place by dividing the acquired area into 11 sectors and more than 9417 plots, flats and commercial buildings have been constructed with other necessary public utility services. It is, therefore, his contention that petitioner is not entitled to the benefit of Section 24(2) of the 2013 Act. 7. Learned Standing Counsel has also submitted that the petitioner is not entitled to the benefit of Section 24(2) of the 2013 Act. 8. We have considered the submissions advanced by the learned counsel for the parties. 9. Though, it is correct that the challenge to the acquisition proceedings in Writ Petition No. - 23183 of 1987 did not find favour of the Court and the writ petition was ultimately dismissed by the judgment dated 11 September 1991 but the issue before the Court in this petition is as to whether the acquisition shall be deemed to have lapsed under Section 24(2) of the 2013 Act. 10. In order to appreciate the contentions advanced by the learned counsel for the parties, it will be appropriate for the Court to reproduce Section 24 of the 2013 Act and the same is as follows: "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. (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 Act has not been repealed. (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 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." It is not in dispute that the award under Section 11 of the Act was made on 22 February 1990, which date is more than five years or more prior to 1 January 2014 on which date the 2013 Act has came into force. 4. There is no dispute between the parties that the compensation amount was not paid to the petitioners and it was deposited in the Treasury. 12. The Supreme Court has time and again examined the provisions of Sections 24(1) and 24(2) of the 2013 Act. It has explained the conditions under which Section 24(1) of the 2013 Act would apply and the conditions under which Section 24(2) of the 2013 Act would apply. It has been observed by the Supreme Court that Section 24(1) of the 2013 Act, which deals with acquisition proceedings that have been initiated under the provisions of the Act, covers situations where either no award has been made under Section 11 of the Act, in which case the beneficial provisions of 2013 Act would apply for determination of compensation or where an award has been made under Section 11 of the Act, in which case the provisions of the Act would apply as if the said Act has not been repealed. In relation to Section 24(2) of the 2013 Act, it has been pointed out that the State cannot be permitted to expropriate the property of a citizen if the award has been made and the necessary steps to complete the acquisition have not been taken for a period of five years or more. These steps, the Supreme Court explained, include taking physical possession of the land and payment of compensation. The Supreme Court has also explained that 'compensation' would be considered as paid if the compensation has been deposited in the Court where a Reference under Section 18 could be made, in view of the provisions of Section 31 of the Act. 13. In this connection it would be pertinent to refer to the decision of the Supreme Court in Delhi Development Authority v. Sukhbir Singh & Others, (2016) 16 SCC 258 . While examining the provisions of sub-section (2) of Section 24, the Supreme Court held that in a case where the award under Section 11 of the Act was made five years or more prior to 1 January 2014, the acquisition would lapse either when physical possession of the land has not been taken or compensation has not been paid by 1 January 2014. It rejected the contention that or should be read as and. The observations are as follows: "11. 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. 12. 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. (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. 13. 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. 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 subsection does not lead to any absurdity for us to replace language advisedly used by the Legislature. 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 subsection 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." (Emphasis supplied) 14. It would also be pertinent to refer to the decision of the Supreme Court in Pune Municipal Corporation and Another v. Harakchand Misirimal Solanki and Others, (2014) 3 SCC 183 . The Supreme Court observed that for the purposes of Section 24(2), 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 a Reference under Section 18 can be made on the happening of any of the contingency contemplated under Section 31 of the 1894 Act. In other words even if compensation is deposited in the Court, it would be considered as paid. The observations are as follows:- "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). 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 32 and 33." (Emphasis supplied) 15. It, therefore, follows that the land acquisition proceedings initiated under the provisions of the Act, in view of the provisions of Section 24(2) of the 2013 Act, shall be deemed to have lapsed where the award has been made under Section 11 of the Act five years or prior to 1 January 2014 but the physical possession of the land has not been taken or the compensation has not been paid. The foremost condition that needs to be satisfied before the benefit of Section 24(2) of the 2013 Act is available is that the award should have been made under Section 11 of the Act five years or more prior to the date of commencement of the 2013 Act i.e. 1 January 2014. 16. In the instant case, it is not in dispute that the amount was not deposited in the manner contemplated under Section 31 of the Act as it has been stated that it was deposited before the Treasury. 16. In the instant case, it is not in dispute that the amount was not deposited in the manner contemplated under Section 31 of the Act as it has been stated that it was deposited before the Treasury. It is, therefore, clear that the compensation amount was not paid to the petitioners. 17. It is, therefore, clear that compensation was not paid to the petitioners prior to 1 January 2014. In such a situation when the award was made five years or more prior to 1 January 2014, the acquisition shall be deemed to have lapsed. 18. Section 24(2) of the 2013 Act further provides that even if the proceedings lapsed but the appropriate Government, if it so chooses, can initiate proceedings for land acquisition afresh in accordance with the provisions of the 2013 Act. It is for the State Government to take a decision in this matter. 19. The writ petition, therefore, succeeds and is allowed. It is declared that the land acquisition proceedings in so far as the petitioners are concerned have lapsed under the provisions of Section 24(2) of the 2013 Act. The auction notice dated 19 July 2014 is consequently set aside.