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2022 DIGILAW 10 (CHH)

Laxmi Chand v. State of Chhattisgarh

2022-01-05

ARUP KUMAR GOSWAMI, N.K.CHANDRAVANSHI

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JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. Heard Mr. V.V.S. Murthy, learned senior counsel assisted by Mr. Shantanu Kumar, learned counsel for the petitioner. Also heard Mr. Sudeep Agrawal, learned Deputy Advocate General for the respondents No. 1, 3 and 4 as well as Mr. Sandeep Dubey, learned counsel for the respondent No. 2. 2. The writ petition was amended and the facts of the case as enumerated in the amended writ petition are as follows: “5.1 That the petitioner No. 1 is a son of deceased Shaker Lal, the petitioner No. 2 is the grand son of deceased Shanker Lal, the petitioner No. 3 is the son of deceased Ganga Das Nathani and the petitioner No. 4 is the son of Prusottam Das Nathani. The deceased Shaker Lal, Ganga Das and Pursottam Das held agricultural lands bearing Khasra No. 1071 area 0.98 acres, Khasra No. 1074 area 1.60 acres and a total area 2 acres 5 dismils (in figure) two point five eight acres situated in Raipur within the Municipal area a copy of the sale deed is ANNEXURE-P/ 1. 5.2 That the petitioners were and before their fathers and grand fathers were in possession of the aforesaid lands. The respondent No. 3 being the competent authority under the Act of 1976 moved an application for acquisition of land before the respondent No. 4 on 27.01.1979. The case was taken by the respondent No. 4 on 09.02.1979 and the same was registered as Case No. 95-A/82 of 1978-79 copy of register of registration of revenue cases is ANNEXURE-P/2. 5.3 That the respondent No. 1 to 3 started the proceeding for rehabilitation of poor persons residing in slum areas in various cities of the erstwhile State of M.P. and now Raipur city falls under the State of respondent No. 1. 5.4 The erstwhile State of M.P. had passed an Act called M.P. Gandhi Basti Kshetra (Sudhar Tatha Nirmulan) Adhiniyam 1976 hereinafter called the Act and now enforceable in this State. That Act came into force in Raipur Town also. According to Section 3(1) of the said Act 1973. 5.4 The erstwhile State of M.P. had passed an Act called M.P. Gandhi Basti Kshetra (Sudhar Tatha Nirmulan) Adhiniyam 1976 hereinafter called the Act and now enforceable in this State. That Act came into force in Raipur Town also. According to Section 3(1) of the said Act 1973. 5.5 Respondent No. 3 as in any other district of the State was competent authority under the Act of 1976 to exercise the powers under the various sections of the Act of 1976 like Section 3 to 14, 16, 17, 19, 20, 22, 36, 37, 38, 39, 42, 49, 48, 50 of the Act. 5.6 That the petitioners several times wrote letters to the respondents to determine the compensation payable for them under the Act of 1976 but, the respondents had not paid any heed so far to do that and therefore, they seeking the remedy to enforce the legal rights and statutory rights to gave the compensation under Section 19 of the Act 1976 and also to enforce the statutory obligation of the respondent No. 3 and 4. The petitioners have given to the respondents are ANNEXURE-P/3, P/4 and P/5.” 3. The reliefs prayed for, as appearing in the amended writ petition, read as follows: “7.1 That, this Hon’ble Court be pleased to strike down Section 13 of the Gandhi Basti Adhiniyam 1976 as it is inconsistent with the provision of Section 23 of the Land Acquisition Act, 1894 and offending Article-14 and proviso to Article 31-A of the Constitution of India. 7.2 That the respondents be mandated to determine the compensation of the lands which the respondents have taken possession of. 7.3 In case the compensation is already determined under Section 16(3) of the Act of 1976 the respondents be mandated to the deposit determined compensation to the petitioners under Section 18 of the Act of 1976. 7.4 In case the compensation is deposited with the District and Sessions Judge U/s. 32 and 33 of the land Acquisition Act or under Section 18(2) of the Act 1976 with the District Judge then the respondents be directed to allow the petitioners to withdraw the amount from the District and Sessions Judge Raipur. 7.5 Any other relief which Hon’ble Court may deem fit and proper may also be passed in favour of the petitioner.” 4. Consolidated writ petition after amendment was filed on 21.08.2009. 5. 7.5 Any other relief which Hon’ble Court may deem fit and proper may also be passed in favour of the petitioner.” 4. Consolidated writ petition after amendment was filed on 21.08.2009. 5. The respondents No. 1, 3 and 4 filed their return on 16.11.2009. However, it appears from the reliefs claimed by the petitioners, which were reproduced in the said return, that response was filed to the original writ petition. 6. In paragraph 4 of the return, it is stated that the action for land acquisition was not taken under the provisions of the M.P. Gandi Basti Kshetra (Sudhar Tatha Nirmulan) Adhiniyam, 1976, for short, the 1976 Adhiniyam, and that the prayer made that the compensation should be fixed in accordance with the 1976 Adhiniyam, is misconceived. 7. In paragraph 5 of the return, it is stated that the proceedings under the Land Acquisition Act, 1894 (for short ‘the 1894 Act’) had been completed and compensation had been determined but the compensation amount of Rs. 1,17,789/- which was to be deposited by the respondent No. 2, had not been deposited. It is stated that a Notification under Section 4 read with Section 17 of the 1894 Act was published on 17.05.1979 and Notification under Section 6 of the 1894 Act was published on 24.09.1979. 8. In paragraph 6, which is the last paragraph of the return, it is stated that possession of the land has been taken and the area had been developed. 9. Respondent No. 2 had filed its return on 05.07.2010 stating that on 30.06.2010, the amount of compensation of Rs. 1,17,783/- was deposited before the Sub-Divisional Officer (Revenue) and Land Acquisition Officer, Raipur. 10. A rejoinder to the return filed by the respondents No. 1, 3 and 4 was filed by the petitioners stating that in view of the stand taken by the respondents that they had proceeded under the provisions of the 1894 Act, the petitioners are entitled to compensation under the said Act. 11. Mr. Murthy, learned senior counsel for the petitioners submits that in view of the stand taken by the respondents that the land was acquired under the provisions of the 1894 Act, it will not be necessary for the petitioners to question the vires of Section 13 of the 1976 Adhiniyam. Mr. 11. Mr. Murthy, learned senior counsel for the petitioners submits that in view of the stand taken by the respondents that the land was acquired under the provisions of the 1894 Act, it will not be necessary for the petitioners to question the vires of Section 13 of the 1976 Adhiniyam. Mr. Murthy contends that till date, no award has been passed and as such the compensation has to be determined under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, the 2013 Act) and in support of the contention, draws our attention to paragraphs 366.1 and 366.2 of the judgment rendered by the Hon’ble Supreme Court in Indore Development Authority vs. Manohar Lal and Others, (2020) 8 SCC 129 . 12. Mr. Sudeep Agrawal, learned Deputy Advocate General for the respondents No. 1, 3 and 4 as well as Mr. Sandeep Dubey, learned counsel for the respondent No. 2 have also submitted that no award has been passed till date. 13. We have considered the submissions of learned counsel for the parties and have perused the materials on record. 14. It appears that the writ petition was once disposed of by order dated 16.07.2010. The order reads as follows: “1. Heard 2. In the return filed on behalf of respondent No. 2 Municipal Corporation, Raipur, it has been mentioned that the award has been made and the amount of compensation has been deposited by respondent No. 2 with the Sub-Divisional Officer (Revenue)-cum-Land Acquisition Officer, therefore, nothing remains to be adjudicated by this Court. 3. In this view of the matter, the petitioner may approach the concerned land Acquisition Officer in accordance with the provisions of M.P. Gandi Basti Kshetra (Sudhar Tatha Nirmulan) Adhiniyam, 1976 (hereinafter referred to the Act, 1976) as the land acquisition proceedings were commenced under the said Act. 4. With the above observation, this petition stands disposed off.” 15. A review petition being Review Petition No. 95/2010 was filed and by order dated 19.03.2021, the order dated 16.07.2010 was recalled on the ground that award was never passed in the land acquisition proceedings. 16. 4. With the above observation, this petition stands disposed off.” 15. A review petition being Review Petition No. 95/2010 was filed and by order dated 19.03.2021, the order dated 16.07.2010 was recalled on the ground that award was never passed in the land acquisition proceedings. 16. Though in the order dated 16.07.2010, it was noted that the land acquisition proceedings were initiated and commenced under the provisions of the 1976 Adhiniyam, the order having been recalled in Review Petition No. 95/2010 and in view of categorical stand taken in the reply of the respondents No. 1, 3 and 4 that the land acquisition proceedings were initiated under the 1894 Act, as rightly submitted by Mr. Murthy, there will be no necessity for the petitioners to mount a challenge with regard to validity of Section 13 of the 1976 Adhiniyam. 17. The undisputed position is that though urgency clause in terms of Section 17(1) of the 1894 Act was invoked and possession of the land from the petitioners and/or their predecessors-in-interests was taken over, till date, no award has been passed. 18. In Indore Development Authority (supra), the Hon’ble Supreme Court in paragraphs 366.1 and 366.2 observed as follows: “366.1 Under the provisions of Section 24(1)(a) in case the award is not made on 1.1.2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. 366.2 In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.” 19. In view of the above dicta of the Hon’ble Supreme Court, the award having not been passed till today and possession of the land having been taken over from the petitioners and/or their predecessors-in-interests, compensation has to be determined under the provisions of the 2013 Act. 20. Forty-two years have gone by in the meantime from the date of initiation of the acquisition proceedings. In that view of the matter, the Respondents are directed to make payment of the compensation amount after determining the same under the provisions of the 2013 Act within a period of four months from today. 21. 20. Forty-two years have gone by in the meantime from the date of initiation of the acquisition proceedings. In that view of the matter, the Respondents are directed to make payment of the compensation amount after determining the same under the provisions of the 2013 Act within a period of four months from today. 21. The writ petition is allowed with cost of Rs. 50,000/- to be paid to the petitioners by respondents No. 1, 3 and 4.