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2019 DIGILAW 631 (RAJ)

Sita Ram v. State of Rajasthan

2019-02-22

MUNISHWAR NATH BHANDARI

body2019
JUDGMENT Munishwar Nath Bhandari, J. - Heard on the application under Section 5 of the Limitation Act. There is a delay of 145 days in filing review petition. 2. It is submitted that after the judgment dated 11th July, 2017, when compliance was not made, the petitioners preferred a contempt petition. The notice on the contempt petition was issued as the respondents did not determine the compensation for acquisition of land, as directed by this Court. It was later on found that there exists confusion in the mind of the respondents for determination of compensation, thus are intended to make an application for clarification, hence, at this stage, it became necessary for the petitioners to prefer a review petition to have clarity of the issue. The prayer is accordingly to condone the delay in filing review petition. No reply to the application under Section 5 of the Limitation Act has been filed. 3. Taking facts of the case into consideration, more specifically, note-sheet of the respondents placed on record, it becomes clear that even there was confusion even in the mind of the respondents for determination of compensation thus, at this stage, the review petition was filed. It is clarificatory in nature otherwise. In view of the above, delay in filing review petition is condoned. The application under Section 5 of the Limitation Act is allowed. This review petition has been filed against the judgment dated 11th July, 2017. 4. A writ petition was filed by the petitioners to seek lapse of the acquisition of land in reference to section 11A of the Land Acquisition Act, 1894 (for short "the Act of 1894") and Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the Act of 2013"). The lapse of acquisition was sought mainly on the ground that after issuance of notice under Section 4 of the Act of 1894, a Notification under Section 6 of the Act of 1894 along with Section 17(1) of the Act of 1894 was issued on 05th October, 2004. The award was not passed thereupon within the period given under Section 11A of the Act of 1894 and, in the meanwhile, the Act of 2013 came into force. The award was not passed even thereafter thus, Section 24 of the Act of 2013 became applicable. 5. The award was not passed thereupon within the period given under Section 11A of the Act of 1894 and, in the meanwhile, the Act of 2013 came into force. The award was not passed even thereafter thus, Section 24 of the Act of 2013 became applicable. 5. The writ petition was contested by the respondents. It was submitted that possession of the land was taken after issuance of the Notification under Section 17(1) of the Act of 1894 and eighty per cent of the compensation was also offered on 30th November, 2015, i.e., after lapse of around eleven years of the Notification under Section 17(1) of the Act of 1894. A plea was raised about vesting of land in the Government and not to apply Section 11A of the Act of 1894. It was, however, submitted that remaining 20 per cent compensation would be paid at the earliest. 6. This Court after hearing the parties did not lapse the acquisition for the reason that the land was used for a road but to balance the equities and as the Act of 2013 became applicable in view of Section 24(1)(a) of the Act of 2013, a direction was given to determine the compensation under the Act of 2013 and, for that, to keep in mind the judgment of the Apex Court in the case of Laxmi Devi vs. State of Bihar & Ors., (2015) 10 SCC 241 . The matter was processed at the level of JDA and it seems that confusion remained regarding determination of compensation in reference to judgment in the case of Laxmi Devi (supra). The matter was processed at the level of JDA and it seems that confusion remained regarding determination of compensation in reference to judgment in the case of Laxmi Devi (supra). The relevant portion of the note sheet is quoted hereunder for ready reference : ^^mDr ekeys ;g Hkh lgh gS fd ekuuh; mPp U;k;ky; us vius fu.kZ; esa u;s vokfIr vf/kfu;e ds eqvkots ds dkSu&dkSu ls Áko/kku o eqvkotk nj dh fu/kkZj.k fnukad ,oa iquZokl vkfn dk fu.kZ; esa Li"V mYys[k ugha fd;k gS rFkk fu.kZ; ckcr ikyuk dh tfoÁk vf/koDrk dh jk; esa Hkh ikyuk fdl Ádkj dh tkuh gS Li"V ugha fd;k x;k gS ftlls eqvkotk fu/kkZj.k dh Li"V o iw.kZ oLrqfLFkfr Li"V djus esa tfVyrk vk jgh gS rFkk [kkrsnkj us ÁkFkZuk i= ÁLrqr dj vokMZ Ádj.k 05@2005 esa dh tk jgh dk;Zokgh dk iqu% ijh{k.k pkgk gSA vr% mDr ifjfLFkfr esa ÁFke fodYi ds :i esa Hkwfe vokfIr vf/kdkjh }kjk ekuuh; mPp U;k;ky; esa Hkh DyhjhfQds'ku gsrq ÁkFkZuk i= nk;j djus ij fopkj fd;k tk ldrk gS] rkfd dksbZ fof/k fo:) dk;Zokgh ugha gks lds ,oa voekuuk ls Hkh cpko gks ldsaA vFkok blesa f}rh; fodYi ds :i esa ys[k gS fd /kkjk 24¼1½¼,½ esa lEiw.kZ Áksfotu tks eqvkots ls lacaf/kr gks dk Áko/kku o mYys[k gksus ls eqvkotk fu/kkZj.k dh dk;Zokgh gsrq mDr u;s ,DV ds Áko/kku eqvkots ls lacaf/kr /kkjk 26 ls 30 o fu;e 2016 ds fu;e 21 ls 23 ÁFke n`"V;k Áklafxd o Á;ksT;rk j[krs Árhr gksrs gSa] ftldh eqvkotk fu/kkZj.k esa mis{kk ugha dh tkuh pkfg, rFkk ekuuh; mPp U;k;ky; us fu.kZ; fnukad 11-07-2017 esa mDr ekeys y{eh nsoh cuke fcgkj jkT; o vU; dks mi;ksx djus ckcr Hkh funsZ'k gSA vr% eqvkotk fu/kkZj.k esa y{eh nsoh ds Ádj.k esa vafdr funsZ'kksa dks Hkh /;ku esa j[kk tkuk vko';d gSA D;ksafd nksuksa Ádj.kksa esa iwoZ ds vf/kfu;e esa /kkjk 17 dh dk;Zokgh gksdj vokMZ ikfjr ugha gSA y{eh nsoh ds Ádj.k esa /kkjk 17 dh vokfIr esa iqjkus ,DV dh /kkjk 11 Á;ksT;rk ekurs gq;s le;kof/k esa vokMZ ikfjr ugha ekurs gq;s vokfIr dks vikLr djrs gq;s u;s ,DV esa vokfIr dk;Zokgh 'kq: djrs gq;s mlds rgr eqvkotk Hkqxrku ds funsZ'k fn;s gSaA blfy, mDr ekeysa esa iwoZ esa vfrfjDr egkf/koDrk jk; dks ns[krs gq;s u;s ,DV ds eqvkots laca/kh lHkh Áko/kkuksa ds vuq:i dk;Zokgh djus dh ÁLrkfor fVIi.kh@ijh{k.k dks jkT; ljdkj ds Lrj ls fof/kd :i ls ijh{k.k o vuqeksnu o ekxZn'kZu djok;k tkdj rRi'pkr rnuqlkj ÁkIr ekxZn'kZu ds Øe esa fof/kuqlkj vfxze dk;Zokgh dh tkuh mfpr gksxhA voyksdukFkZ ,oa vkns'kkFkZ ÁLrqr gSA funs'kd@¼fof/k½ iSjk 56@17 ls 61 ds Øe esa Ádj.k dk voyksdu fd;k x;kA vfrfjDr egkf/koDrk dh jk; Li"V u gksdj fojks/kkHkkl Árhr gksrh gSA ekuuh; mPp U;k;ky; }kjk fnukad 11-07-2017 esa fd;s vkns'k ds vuqlkj y{eh nsoh cuke fcgkj jkT; esa tks vkns'k fl}kUr o ÁfØ;k viukbZ xbZ gS leku ÁfØ;k ml Ádj.k esa fu/kkZfjr dj eqvkotk r; dj Ánku fd;k tkuk fof/k lEer gksxkA** 7. The respondents seems to have not taken note of the provisions of the Act of 2013 for determination of compensation. The only issue is as to which date should be taken for the market value of the land for determination of compensation. The review petition has been filed for that reason though it could have been avoided, if the respondents would have taken care of the opinion of the Government of India for the aforesaid. It is under Section 113 of the Act of 2013. The Government of India gave opinion for determination of compensation in a case where acquisition proceedings were initiated under the Act of 1894 and award was not passed till 01st January, 2014 i.e. date of commencement of the new Act. A direction was given to determine the compensation taking market value of the land as on 01st January, 2014. 8. The similar issue came up for consideration before Division Bench of Allahabad High Court in the case of Hori Lal vs. State of Uttar Pradesh & Ors. in Writ Petition No.44731/2016 decided vide order dated 09th March, 2017. Relevant part of the said judgment is quoted hereunder for ready reference : "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. 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. 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. Learned Senior Counsel has also submitted when land had been acquired under the provisions of the National Highways Act, 19564 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. 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 (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 subsection (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." 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. Sri R.K. Ojha, learned Senior Counsel for the Authority has, however, submitted that subsection (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. Sri R.K. Ojha, learned Senior Counsel for the Authority has, however, submitted that subsection (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. 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. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 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 01.01.2014 (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. 01.01.2014) 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)." 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." 9. The controversy before the Division Bench of Allahabad High Court was almost similar to that before this Court. The only difference is that the writ petition therein was after the award, whereas, in the instant case, it is when no award was passed. Therein also, after initiation of acquisition proceedings in the year 2002, under the Act of 1894, award was not passed till commencement of the Act of 2013. The petitioner therein did not challenge the acquisition proceedings but prayed for determination of compensation under the Act of 2013. A controversy arose as to which date should be taken for determination of market value of the land for the calculation of compensation. The issue aforesaid has been answered by Division Bench holding that relevant date would be 01st January, 2014 for determination of compensation. 10. The said judgment was challenged before the Apex Court in Civil Appeal No.1462/2019 decided vide order dated 05th February, 2019. The Apex Court did not make interference in the judgment. The issue aforesaid has been answered by Division Bench holding that relevant date would be 01st January, 2014 for determination of compensation. 10. The said judgment was challenged before the Apex Court in Civil Appeal No.1462/2019 decided vide order dated 05th February, 2019. The Apex Court did not make interference in the judgment. The judgment of the Division Bench of Allahabad High Court has been upheld by the Supreme Court. The judgment of the Division Bench answers the issue raised in this review petition i.e. about the crucial date for determination of compensation. 11. The respondents have taken date of Notification under Section 4 of the Act of 1894 to be relevant date for determination of compensation in ignorance of the provisions of the Act of 2013 and directions of this Court in the judgment sought to be reviewed. The date of Notification under Section 4 of the Act of 1894 could not have been taken for determination of compensation, rather, it should have been 01st January, 2014, as per the opinion of the Government of India under Section 113 of the Act of 2013. 12. Accordingly, the main issue in regard to the crucial date for determination of market value of the land is held to be 01st January, 2014. The respondents would determine the compensation accordingly so as to make compliance of the judgment and even to avoid an adverse order in the contempt petition, which is otherwise pending. With the aforesaid, the review petition is disposed of.