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2021 DIGILAW 525 (JK)

Nisar Ahmed Ganai v. Union Territory of J&K

2021-10-06

PANKAJ MITHAL, RAJNESH OSWAL

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JUDGMENT : Pankaj Mithal, J. 1. All the three writ petitions are identical and similar on facts. They give rise to a common question of law and, as such, have been taken up together with the consent of the parties. 2. The petitioners through the medium of these writ petitions under Article 226 of the Constitution of India want that the respondents be restrained from passing an award under Section 11 of the repealed Land Acquisition Act, Svt. 1990 which is in pari materia with the Land Acquisition Act, 1894 and, that they should be paid compensation of their acquired land in accordance with the provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the new Act'). 3. In addition to the above primary relief claimed in the writ petitions, the petitioners have also prayed that the notification dated 15.11.2016 issued under Section 4 of the Land Acquisition Act (for short 'the Act') and the declaration dated 12.11.2018 issued under Section 6 of the Act as also the ancillary notices issued under Section 9 A and 9 B of the Act be quashed. 4. Heard Sh. Jatinder Choudhary, learned counsel for the petitioners and Sh. D.C. Raina, learned Advocate General for the respondents. 5. Both of them agreed for the final disposal of the petitions on the basis of material already on record. 6. Sh. Jatinder Choudhary, learned counsel for the petitioners submitted that the petitioners would be satisfied if instead of quashing the land acquisition proceedings, the petitioners are directed to be paid compensation of the acquired land in accordance with the provisions of Section 24 of the new Act. 7. 6. Sh. Jatinder Choudhary, learned counsel for the petitioners submitted that the petitioners would be satisfied if instead of quashing the land acquisition proceedings, the petitioners are directed to be paid compensation of the acquired land in accordance with the provisions of Section 24 of the new Act. 7. Learned Advocate General, on the other hand, contended that since the acquisition proceedings have been initiated under the Act, in view of Section 6 of the General Clauses Act read with sub-clause (13) of Clause 2 of the Removal of Difficulties Orders, 2019 and 2020 issued vide S.O. No. 3912(E) of 2019, dated 30.10.2019 of the Ministry of Home Affairs (Department of Jammu and Kashmir Affairs), the repeal of the Act shall not affect the right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed and that any investigation, legal proceedings or remedy may be instituted, continued or enforced as if this Act (J&K Reorganization Act, 2019) had not been passed. Therefore, the award in respect of the aforesaid acquisition has to be made in accordance with the provisions of the Act itself and Section 24 of the new Act would not be applicable. 8. It may be noted that the Land Acquisition Act, 1894 was applicable to the whole of India except the State of Jammu and Kashmir where the aforesaid Act was in force. The provisions of Section 11 of the Act with regard to the making of an award are similar in both the aforesaid Acts. The Land Acquisition Act was repealed vide Section 114 of the new Act which was enforced in the country with effect from 01.01.2014. The new Act was made applicable to the whole of India except the State of Jammu and Kashmir. However, by virtue of Entry No. 94 of Table I of the 5th Schedule of the J&K Reorganization Act, the word “except the State of Jammu and Kashmir” appearing in Section 1(2) of the new Act was directed to be omitted, thus applying the new Act to the whole of India including the J&K with effect from 31.10.2019. In short, the Act stood repealed in its application to J&K from 31.10.2019 and the new Act was enforced. 9. In short, the Act stood repealed in its application to J&K from 31.10.2019 and the new Act was enforced. 9. The new Act vide Section 24 of the Act clearly provides that in case where land acquisition proceedings were initiated under the Land Acquisition Act which include the Act, and where no award under Section 11 of the said Act has been made then all provisions of the new Act relating to the determination of compensation shall apply. 10. Section 24 of the new Act with which we are concerned is quoted 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,- (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.” 11. A reading of the aforesaid provision would reveal that in cases where land acquisition proceedings have been initiated under the previous Act but where no award is made then the provisions relating to the determination of compensation under the new Act would apply. A reading of the aforesaid provision would reveal that in cases where land acquisition proceedings have been initiated under the previous Act but where no award is made then the provisions relating to the determination of compensation under the new Act would apply. In the event, the award had also been declared under the previous Act then only the proceedings would continue under the old Act. 12. It may be noted that the factors for determining the compensation under the new Act are totally different from the factors provided for its determination under the old Act. The said factors under the new Act are more beneficial to the land holders whose land has been acquired than the provisions of the repealed Acts. 13. The aforesaid Section 24 of the new Act vide its sub-section (2) further provides that where the acquisition proceedings were initiated under the previous Act and an award has been made under Section 11 of the said Act five years or more prior to the commencement of the new Act but where physical possession has not been taken or the compensation has not been paid, the acquisition proceedings shall be deemed to have lapsed and the government may proceed with fresh acquisition. 14. The lapsing of the land acquisition proceedings and the determination of the compensation in accordance with the new Act are two different things altogether. The petitioners herein are not demanding that the acquisition proceedings be declared to have lapsed. They are simply asking for determination of compensation in accordance with the provisions of the new Act as provided under Section 24 thereof. 15. In the present case, the notification under Section 4 of the Act was issued on 15.11.2016. It was followed by declaration under Section 6 of the Act dated 12.11.2018 which was last published in the Government Gazette on 09.05.2019. A draft award was prepared in August 2019 but till date no final award has been published. 16. It may also be worth noting that the possession of the land has also not been taken over, may be for the reason that in one of the writ petitions in relation to the aforesaid acquisition proceedings, an order dated 14.12.2018 was passed by this Court directing the parties to maintain the status quo. 17. 16. It may also be worth noting that the possession of the land has also not been taken over, may be for the reason that in one of the writ petitions in relation to the aforesaid acquisition proceedings, an order dated 14.12.2018 was passed by this Court directing the parties to maintain the status quo. 17. In view of the aforesaid facts and circumstances, it is evident that the land acquisition proceedings were initiated under the Act but no award under Section 11 of the said Act was made till its repeal, i.e., 31.10.2019 or even date and, as such, in the light of Section 24 (1) (a) of the new Act, the provisions of the new Act would apply relating to the determination of compensation. 18. Under the new Act, compensation has to be determined as per the market value of the land in accordance with the provisions of Sections 26 to 30 of the Act and thereafter the Collector is obliged to make an award under Section 37 of the new Act. 19. The argument that in view of sub-clause (13) of Clause 2 of Removal of Difficulties Orders issued under the J&K Reorganization Act which is nothing but repetition of Section 6 of the General Clauses Act, the compensation has to be determined in accordance with the provisions of the previous Act and the award has to be made under Section 11 of the said Act is completely misplaced and cannot be accepted. The previous/old Act stands repealed in its applicability to the J&K with effect from 31.10.2019 and, as such, its provision cannot be applied thereafter except to the limited extent where award has already been made under the previous /old Act in which condition, the proceedings have been permitted to be continued under the provisions of the same Act. It is only for the limited purpose to continue the proceedings of acquisition and determination of compensation where award has already been made under the previous/old Act that the applicability of the same has been saved not otherwise. 20. The express specific provision of Section 24(1)(a) of the new Act is in no way gets diluted or affected vide sub-clause (13) of Clause 2 of the Removal of Difficulties Orders issued under the J&K Reorganization Act. The said Clause only saves those things that may have been done under the previous Act. 20. The express specific provision of Section 24(1)(a) of the new Act is in no way gets diluted or affected vide sub-clause (13) of Clause 2 of the Removal of Difficulties Orders issued under the J&K Reorganization Act. The said Clause only saves those things that may have been done under the previous Act. The right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act which is sought to be saved by it does not cover within its ambit, the right to receive fair compensation which matures only with the pronouncement of an award. 21. Thus in the absence of the award no right accrues to the petitioners to receive compensation under the previous/old Act. It will only mature on the publication of an award under the new Act viz., Section 37 of the same Act which has to be in accordance with the provisions of Sections 26 to 30 of the new Act. 22. In view of the aforesaid facts and circumstances, the determination of compensation for the land acquired under the provisions of the previous/old Act where no award has been made thereunder, is misconceived and, in fact, would amount to nullifying the express provision of Section 24(1)(a) of the new Act. 23. In Indore Development Authority v. Manohar Lal, (2020) 8 SCC 129 , in paragraph 366.1, the Supreme Court has clearly laid down that in view of the provisions of Section 24(1)(a) of the new Act, in case an award is not made on date of the repeal of the previous/old Act, or the date of the commencement of the new Act, compensation has to be determined under the provisions of the new Act. 24. In the event the argument of the learned Advocate General is accepted, it would render the determination of the compensation in conflict with the express provisions of the new Act which is not the intention of the legislation. 25. 24. In the event the argument of the learned Advocate General is accepted, it would render the determination of the compensation in conflict with the express provisions of the new Act which is not the intention of the legislation. 25. In view of the aforesaid facts and circumstances, a writ of mandamus is issued commanding the respondents to determine the compensation of the acquired land in accordance with the provisions of the new Act, most expeditiously, preferably, within a period of four months from the date a copy of this order is produced before them or in the alternative, if necessary and if so advised, initiate fresh proceedings for acquiring the land in question in accordance with the prevailing law on the subject. 26. The writ petitions are allowed with no order as to costs.