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2024 DIGILAW 1677 (GAU)

Ledo Tea Co. Ltd. v. State Of Assam

2024-11-29

ARUN DEV CHOUDHURY

body2024
JUDGMENT : 1. Heard Mr. B Sarma, learned counsel for the petitioner. Also heard Mr. R Barpujari, learned standing counsel for the Revenue Department and Mr. RK Talukdar, learned standing counsel for the NHIDCL. 2. The petitioners' tea-growing land under Ledo Tea Estate in Makum Mouza of Tinsukia district was acquired under the Land Acquisition Act, 1894 (hereinafter referred to as Old Act) for the construction of a bypass on National Highway 38. Accordingly, the land acquisition proceeding being LA case No. 47/2009 was initiated. Certain compensations were also paid, which was accepted by the petitioner under protest as well as possession was also handed over to the acquiring authority under protest. 3. It is the case of the petitioner that given the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the New Act), which became operational on 01.01.2014, the petitioner is entitled for land acquisition compensation in terms of the New Act. However, as their prayer was rejected, the present writ petition was filed. 4. In the aforesaid context, Mr. Sarma, learned counsel for the petitioner argues the following: I.In term of Subsection 1 of Section 11 of the Old Act, until and unless approval is granted by the State Government, it cannot be an award in the eye of law and admittedly, in the case in hand the award was approved on 29.01.2014 and therefore on the date of coming into effect of the New Act, i.e. on 01.01.2014, there was no award and therefore, in terms of the determination made by the Hon’ble Apex Court in Indore Development Authority vs. Manoharlal reported in (2020) 8 SCC 129 , the petitioner is entitled for compensation in terms of the New Act. II. Though compensation was accepted on 24.03.2014, it was under protest and subsequent to the determination made in the Indore Development Authority (supra) and therefore, paragraph 363 of the aforesaid judgment thereof cannot be made applicable in this case. III. The handing over and taking over possession was also done on 04.06.2014 and such handing over and taking over possession shall also have no relevance so far the same relates to the ratio laid down in the aforesaid paragraph by the Hon’ble Apex Court in the Indore Development Authority (supra). IV. III. The handing over and taking over possession was also done on 04.06.2014 and such handing over and taking over possession shall also have no relevance so far the same relates to the ratio laid down in the aforesaid paragraph by the Hon’ble Apex Court in the Indore Development Authority (supra). IV. The notice under Section 12 (2) of the Old Act was issued on 07.03.2014 i.e. after coming into effect of the New Act. 5. Per contra, Mr. Barpujari, learned counsel representing the Collector argues : I. As both the notices under Section 4 and Section 6 of the Old Act were issued before coming into effect of the New Act, therefore, the land acquisition proceeding shall neither lapse nor the petitioner shall be entitled to compensation under the new Act in terms of the determination made by the Hon’ble Apex Court in Indore Development Authority (supra) in the given fact of the present case inasmuch as compensations were paid under the Old Act and the possession was also taken over before enactment of the New Act. II. By virtue of the mandate of Section 6 of the Old Act, after issuance of the notice, the acquired property shall vest upon the State and accordingly, the State had taken over possession of the land in question on 23.12.2013. In support of his contention, Mr. Barpujari also places heavy reliance on the determination made by the Hon’ble Apex Court in paragraph No. 363 in Indore Development Authority (supra). In support of his contention, he refers to Annexure C of the additional affidavit filed by respondent No. 3. 6. Mr. RK Talukdar, learned counsel appearing on behalf of NHIDCL argues that the land in question was initially acquired by the State for Assam Public Works Department (National Highway) and therefore, NHIDCL was nowhere involved during the land acquisition process. Subsequently, the construction of the road was handed over to NHIDCL with free land and therefore, they should not be fastened with the liability, even if this court decides that compensation is liable to be paid under the New Act, for the reason that they continued with the project and completed the road on the basis of free land. Mr. Talukdar while endorsing the argument of Mr. Barpujari also places reliance on paragraph 363 of the judgment of the Hon’ble Apex Court in Indore Development Authority (supra). 7. Mr. Talukdar while endorsing the argument of Mr. Barpujari also places reliance on paragraph 363 of the judgment of the Hon’ble Apex Court in Indore Development Authority (supra). 7. While countering the argument of Mr. Barpujari, learned Standing Counsel as regards paragraph 363 of Indore Development Authority (supra) Mr. Sarma, learned Counsel for the petitioner, referring to the order dated 27.10.2015, submits that admittedly the public notices under Section (9)(1)(2) and (3)(4) of the Old Act were issued on 13.01.2014 fixing the date for filing claims and objections if any from the person interested on 28.01.2014. Therefore, the argument of Mr. Barpujari that land was taken over prior to the coming into effect of the Act has no legs to stand. It is further contended that the NHIDCL being the owner of the road, it is the NHIDCL who is to pay the additional compensation inasmuch as the Deputy Commissioner is only the acquiring authority. 8. Mr. P Nayak, The Learned Standing Counsel for the Assam Public Works Department (APWD) submits that the highway in question is not under the control and management of the department. It is the National Highways Authority of India Limited, which is the owner of such National Highways and therefore, APWD cannot be treated as the acquiring department, rather it is the NHIDCL that is the acquiring authority and therefore, it is the NHIDCL, who is to pay compensation, if enhancement is made. 9. This Court has given anxious consideration to the submissions advanced by the learned counsel for the parties. Also perused the material available on record. 10. Section 24 of the New Act deals with the land acquisition proceeding initiated under the Old Act and was pending as on coming into effect of the New Act. For brevity, Section 24 of the New Act is quoted hereinbelow: 24. Land acquisition process under Act No. 1 of 1984 shall be deemed to have lapsed in certain cases. 10. Section 24 of the New Act deals with the land acquisition proceeding initiated under the Old Act and was pending as on coming into effect of the New Act. For brevity, Section 24 of the New Act is quoted hereinbelow: 24. Land acquisition process under Act No. 1 of 1984 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 is 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 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 Section 24 of the New Act, it can be seen that three categories of pending acquisition has been perceived i.e. (i) where no award has been passed, (ii) where the award has been passed before 01.01.2014 and (iii) where the award has been passed more than 5 five years before 01.01.2014. 12. ” 11. A reading of Section 24 of the New Act, it can be seen that three categories of pending acquisition has been perceived i.e. (i) where no award has been passed, (ii) where the award has been passed before 01.01.2014 and (iii) where the award has been passed more than 5 five years before 01.01.2014. 12. In terms of the aforesaid provision, in the first two categories of cases, the proceeding shall not lapse and for the first category, the compensation is to be determined as per the New Act and in the case of the second category, the compensation is to be determined as per the Old Act. So far relating to the third category, the proceeding may lapse, when the physical possession of the land has not been taken or compensation has not been paid. 13. Section 24(1)(A) of the New Act deals with a deeming provision prescribing the circumstances under which the land acquisition process under the Old Act shall be deemed to have lapsed, which says that it will lapse irrespective of the existence of award, if possession has not been taken over and compensation has not been paid. 14. In Pune Municipal Corporation -Vs- Harakchand Misrimal Solanki, reported 2014 3 SCC 183 , the Hon’ble Apex Court amongst others, held that the deposit of compensation in Treasury after refusal by the land owner would not be regarded as payment of compensation and thereby, same would lead to lapse of a proceeding initiated under the Old Act. 15. A different view was expressed by a Bench of equal strengths to that of Pune Municipal Corporation (supra) in Indore Development Authority (supra) and ultimately the matter was referred to a Constitution Bench of five Judges which settled the proposition in Indore Development Authority (supra). The issues before the Constitution Bench was to the following effect: I. Whether the word “or” in Section 24(2) of the Act, 2013 used between possession has not been taken or compensation has not been paid to be read as “and”? II. Whether proviso to Section 24(2) of the Old Act has to be construed as part thereof or proviso to Section 24(1)(b)? III. What meaning is to be given to the word “paid” under Section 24(2) and “deposited” used in proviso to Section 24(2)? IV. What are the consequences of payment not made? II. Whether proviso to Section 24(2) of the Old Act has to be construed as part thereof or proviso to Section 24(1)(b)? III. What meaning is to be given to the word “paid” under Section 24(2) and “deposited” used in proviso to Section 24(2)? IV. What are the consequences of payment not made? V. What are the consequences of amount not deposited? VI. What is the effect of person refusing to accept compensation? 16. The Constitution Bench after elaborately dealing with the provision of the New Act and principles of law applicable concluded the following: I. Under the provision of Section 24(1)(A), in case the award is not made as of 01.01.2014 i.e., the date of commencement of the Act, 2013, there is no lapse of proceeding. However, compensation is to be determined under the provision of Act, 2013. II. In the case the award has been passed within a window of a period of 5 years excluding the period covered by an interim order of this Court, then proceeding shall continue as directed under Section 24(1)(B) of the Act, 2013 under the Act of 1894 as it has not been repealed. III. The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or as “and”. The deemed lapse of land acquisition proceeding under Section 24(2) of the Act, 2013 takes place, where due to inaction of authorities for 5 years or more prior to commencement of the said Act, the possession of the land has not been taken, nor compensation has been paid. IV. In other words, in case possession has been taken, compensation has not been paid, then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. V. The expression “paid” in the main part of Section 24(2) of the Act, 2013 does not include a deposit of compensation in court. 17. Now coming to the date of award, Section 11(1) of the Old Act mandates that the Collector is to make an award under his hand in respect of the true area of land and the compensation thereof, which, in his opinion should be allowed for the land and also the apportionment of the said compensation, amongst all the persons interested in the land, whether or not those persons have appeared before him. Thus, an award is to be made by the Collector under the Scheme of the Old Act. 18. The first proviso to Section 11 (1) of the Old Act further mandates that no award shall be made by the Collector or such Officers as the Appropriate Government may authorise in this behalf, without the approval of the Appropriate Government. The second proviso to Section 11(1) further prescribes that it shall be competent for the Appropriate Government to direct that the Collector may make such award without such approval in such class or cases, as the Appropriate Government may satisfy in that behalf. 19. Section 12(2) of the Old Act prescribes that Collector shall give immediate notice of award to such persons interested as are not present personally or by their representative, when the award is given. Therefore, such fact also indicates that such notice could not have been issued when the New Act was already holding the field. 20. Thus, it is clear from the aforesaid provision of Law that the approval of the Appropriate Government is necessary for an award to have a legal sanctity i.e. to be an award under the authority of law. The exception in this regard is the permission/direction of the Appropriate Government allowing the Collector to pass an award without such approval if the Appropriate Government is satisfied in this regard. 21. It is important to note that during the course of hearing, this Court directed the State respondents to file an affidavit and to clarify the following the following aspect: I. Date of publication of the notification under Section 4(1) of the Old Act in the Gazette and in the newspapers. II. Publication and declaration made under Section 6(1) of the Old Act in Gezettee and through News Papers. III. Finalization of the award by the Collector. IV. Approval by the Government to the Award. V. Disbursal of the compensation amount if any. 22. Accordingly, an additional affidavit has been filed clarifying the aforesaid point by respondent No. 3. From the aforesaid additional affidavit, the undisputed following facts are discernible: I. Notification under Section 4 of the Old Act was published in the official Gazette on 19.10.2013. The said notification was published in local newspapers on 19.01.2014. II. 22. Accordingly, an additional affidavit has been filed clarifying the aforesaid point by respondent No. 3. From the aforesaid additional affidavit, the undisputed following facts are discernible: I. Notification under Section 4 of the Old Act was published in the official Gazette on 19.10.2013. The said notification was published in local newspapers on 19.01.2014. II. The Notification under Section 6 of the Old Act was published in the official Gazette on 23.12.2013 and the same was published in local daily newspapers on 31.01.2014. III. The Award was forwarded by the Collector on 27.12.2013. The said award of the Deputy Commissioner was approved by the Government on 29.01.2014. The amount so awarded was sanctioned by respondent No. 3 on 15.02.2014. 23. In the case in hand, it is not in dispute rather there are materials, which show that the Collector forwarded his award to the Government on 27.12.2013. Thus, the award is to be dated on or after 27.12.2013. As approval was sought, this court can safely presume that the appropriate Government has not exercised its power under Second Proviso to Section 11(1). Be that as it may, it is on record that the approval was granted by the Government on 29.01.2014 and in the meantime, the New Act was enacted and the same came into effect from 01.01.2014. Thus, in the case in hand, on the date of coming into effect of the New Act, there was no award in terms of section 11 (1) of the Old Act, inasmuch as the award can only be published in terms of section 12(2) of the Old Act on or after 06.01.2014. 24. From the aforesaid facts it is seen that in the case in hand, the notices under Section 4 and 6 of the Old Act, though was published in the official gazette on 19.10.2013, and 23.12.2013 respectively, however, same were published in the local newspaper on 19.01.2014 and 31.01.2014 respectively and the New Act came into effect from 01.01.2014 I.e. before publication of notification under Sections 4 and 6 in the Local daily newspapers. As recorded hereinabove, though the award was passed on 27.12.2013, however, same was approved by the appropriate Government on 29.01.2014 I.e. after coming into effect of the New Act. In fact, it is an admitted position that the amount so awarded was sanctioned by respondent No. 3 on 15.03.2014, thus, on 01.01.2014, no award was passed. As recorded hereinabove, though the award was passed on 27.12.2013, however, same was approved by the appropriate Government on 29.01.2014 I.e. after coming into effect of the New Act. In fact, it is an admitted position that the amount so awarded was sanctioned by respondent No. 3 on 15.03.2014, thus, on 01.01.2014, no award was passed. The approval of the Government was on 06.01.2014, inasmuch as such award can only be published in terms of section 12(2) of the Old Act on or after 06.01.2014. Therefore, the awards passed in the LA cases have to be deemed to have passed after 01.01.2014 i.e., after coming into effect of the New Act. That being the position, though the proceeding initiated under the Old Act shall not lapse in terms of Section 24 of the New Act, however, the compensation is to be determined as per the New Act and a fresh award is required to be passed. 25. Now, coming to the argument of Mr. Borpujari, learned Standing Counsel, as regards the handing over of possession as well as payment of compensation, this court records that the determination made in Indore Development Authority (supra) relates to the expression “paid”/“tender” used in Section 24 of the New Act and the effect of non-deposit of compensation in court under Section 31 (2) of the Old Act and whether such non-deposit result into lapse of acquisition under Section 24(2) of the New Act. It was also an issue before the Constitution Bench, the consequence of non-deposit especially, when compensation is tendered and refused under Section 31 (1) of the old Act and Section 24(2) of the New Act. The fundamental issue before the Constitution bench was the effect of Section 24(2) of the Act. 26. In the aforesaid litigational background and determination made by the Hon’ble Apex Court, this court has no doubt in its mind to hold that when no legal award exist or passed on the date of coming into effect of the New Act i.e. on 01.01.2014, the compensation is to be determined in terms of the New Act though the proceeding shall not lapse. The payment of compensation or taking over of possession without an award shall have no relevance in the backdrop of the mandate of Section 24 as recorded hereinabove as well as in terms of the mandate of the Hon’ble Apex Court in Indore Development Authority (supra). The payment of compensation or taking over of possession without an award shall have no relevance in the backdrop of the mandate of Section 24 as recorded hereinabove as well as in terms of the mandate of the Hon’ble Apex Court in Indore Development Authority (supra). Primarily, the possession and payment of compensation and resultant lapse of acquisition proceeding is relatable to a situation when award has already been passed but the dispute is as regards the possession and payment/tender/deposit of compensation. Therefore, the argument advanced by Mr. Borpujari stands negated. 27. Accordingly, in view of the determination made hereinabove, this court is of the opinion that the compensation in the case in hand is to be determined and paid to the petitioner in terms of the mandate of the New Act, though the proceeding initiated under the Old Act shall not lapse. Accordingly, the writ petition stands allowed to the aforesaid term. The District Collector is directed to determine the compensation in terms of the New Act and to pass a fresh award under the new Act and pay the compensation accordingly to the land owner. It is needless to say that the compensation already paid and received by the petitioner be deducted from the compensation i.e to be determined in terms of this judgment. This writ petition is pending since the year 2015. Therefore, it is in the interest of both the parties that compensation is determined and paid at an earliest date. Accordingly, it is provided that the entire exercise be carried out as expeditiously as possible and not beyond 6 months from the date of receipt of a certified copy of this order to be furnished before the Collector. 28. Therefore, it is in the interest of both the parties that compensation is determined and paid at an earliest date. Accordingly, it is provided that the entire exercise be carried out as expeditiously as possible and not beyond 6 months from the date of receipt of a certified copy of this order to be furnished before the Collector. 28. Now, coming to the ancillary issue who is to pay the enhanced compensation i.e. whether it is the APWD or the NHIDCL, it is an admitted position that though initially, the acquiring authority was APWD , however subsequently the Highway was handed over to NHIDCL and the road in question, which has been constructed over the land in question belongs to the NHIDCL and therefore, in all meaning and purport, when such asset was handed over to the NHIDCL with all the benefits, the liabilities is also to be borne by them and therefore, for all meaning and purport NHIDCL is to be treated as the acquiring authority and accordingly, it is the NHIDCL who is to pay the enhanced/freshly determined compensation under the New Act and as held by this Court herein above. 29. Accordingly, the writ petition stands allowed in terms of the determination made hereinabove. Parties to bear their own costs.