Smt. Chandrawati Alias Chandri ... vs State Of U.P. And 5 Others
2015 Latest Caselaw 5428 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Civil Misc. Writ Petition No. 1146 of 2014
 

 
Smt. Chandrawati @ Chandri	-------				Petitioner
 
					Versus
 
State of U.P. & Ors.		-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Hon'ble Shashi Kant, J.

Heard Shri Anil Tiwari, learned Senior Counsel appearing for the petitioner, learned Standing Counsel for the State respondents and Shri Shivam Yadav appearing for respondent nos. 4 to 6.

Dispute in this petition is in respect of khasra plot no. 236, area 6-13-0 situate in village Gejha Tilpatabad, NOIDA, district Gautam Budh Nagar (hereinafter referred to as 'land in dispute').

The land in dispute was recorded in the name of one Ram Chandra s/o Phussi. He transferred an area of 0-6-6-2/3 (6 biswa and 6-2/3 biswansi) by means of a registered sale deed dated 10.12.1982 in favour of petitioner no. 1. Petitioner no. 2 claims to have purchased area of 1000 sq. mtrs. from petitioner no. 1 by way of registered sale deed dated 13.11.2011.

The plot in dispute was subject matter of acquisition for planned development in district Ghaziabad through New Okhla Industrial Development Authority (hereinafter referred to as 'NOIDA Authority'). Notification under Section 4 (1) of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act, 1894') read with Section 17 (1) and (4) of the said Act, was issued on 13.01.1995. Notification under Section 6 was published on 23.05.1997. A notice dated 20th June, 2013 was issued to petitioner no. 2 and two others for demolition of the constructions standing over the land in dispute. Petitioner no. 2 and the other noticees challenged the same by filing Writ Petition No. 36148 of 2013 on the allegation that constructions were standing on the land in dispute long before the date of purchase of land. However, relying upon the description of the property in the sale deed, which was shown as vacant plot of land having no covered area, a Division Bench of this Court vide order dated 29.07.2013 dismissed the writ petition finding no illegality or infirmity in the notice for demolition.

The two petitioners filed the instant petition seeking a writ, order or direction in the nature of mandamus to command the respondent-NOIDA to exempt the land in dispute from notification dated 31.01.1995. Another writ, order or direction in the nature of mandamus was also sought to command the respondent-NOIDA to complete and conclude the lease back proceedings initiated by them in pursuance of 3rd Amendment of Regulation 2006. Further a mandamus to command the respondent nos. 2 to 6 not to take any coercive action against the petitioners with regard to their exclusive and peaceful possession over plot no. 236 was also prayed for.

The writ petition was filed on the allegation that in view of the 3rd Amendment in Regulation 2006 providing that Gramin abadi land upto 30th June, 2011 may be regularised and may be leased back to respective farmers and since in the survey undertaken by NOIDA, an abadi was found over the land in dispute, therefore, under the lease back policy, the land in dispute ought to have been returned back to the petitioners. However, subsequently, the petitioners made an application seeking amendment in the pleadings, which was allowed vide order dated 15.01.2014. After amendment, following reliefs came to be sought for in the writ petition.

"(i) issue an appropriate writ, order or direction in the nature of mandamus to declare and treat the land acquisition proceedings culminated in the award dated 11.01.2000 with regard to the area 1000 square yards which is part of Gata No. 236 village Geja Tilpatabad, Pargana and Tehsil Dadri, District Gautam Budh Nagar as lapsed by operation of law as contained in Section 24 (2) of Act namely "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013".

Or alternatively

Direct the respondents to consider the claim of the petitioners for lease back the disputed land under the provisions of the Regulation namely "The New Okhla Industrial Development Authority Rural Abadi Site (Management and Regularization for Residential Purpose) Regulation 2006" as amended from time to time.

(ii) issue a writ, order or direction in the nature of mandamus directing the respondents no. 2 to 6 for not to take any coercive action against the petitioners with regard to their exclusive and peaceful possession in Khasra No. 236 Village Gejha, Tilapatabad Tehsil Dadri, District Gautam Budh Nagar. Issue any other suitable writ, order or direction which this Hon'ble court may deem fit and proper under the circumstances of the case."

The aforesaid reliefs were claimed through amendment on the basis of the allegations, which were already there in paragraph 31 of the writ petition that since neither any compensation has been given to the petitioners nor possession has been taken from them, so the acquisition proceedings shall be deemed to have lapsed in view of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the 'Act 2013'). Section 24 of the Act, 2013 reads as under.

"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; 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."

A bare reading of Section 24 (2) of Act, 2013 goes to show that upon fulfilment of two conditions mentioned therein, the acquisition proceedings made under the old Act shall be deemed to have lapsed. The said two conditions are:-

(1) award under the said section 11 has been made five years or more prior to the commencement of the new Act, i.e., prior to 01.01.2014.

(2) the physical possession of the land has not been taken or the compensation has not been paid.

In the present case, according to the pleadings in the counter affidavit filed by NOIDA, the award was declared on 11.01.2000. It may be relevant to quote paragraph 8 of the counter affidavit.

"8. That the contents of paragraph nos. 3 and 4 of the writ petition are not admitted and are denied. It is further submitted that Khasra No. 236 area 6-13-0 Bigha was acquired in the year 1995 itself through notification U/s-4/17 dated 13.01.1995 and notification U/s-6/17 dated 21.09.1995. The possession of aforesaid land was taken over by the authority way back on 23.05.1997 and 20.12.1997. Further, award with regarding the aforesaid acquisition was declared on 11.01.2000. New Okhla Industrial Development Authority Rural Abadi Site (Management and Regularisation for Residential Purposes) Regulations, 2006 is applicable to those who are original tenure holders of the revenue villages within the territorial limit of NOIDA. In the present case, the petitioner no. 1 is the resident of New Delhi and never came to NOIDA for residential purposes. It is further being clarified that she further sold out the property to petitioner no. 2 in the year 2011 to the person who also is not the resident of same revenue village. Moreover, sale to the petitioner no. 2 was made almost after about 16 years of acquisition. However, the said sale and purchase of acquired land clearly shows that there was no Abadi over the land in question. Therefore, no benefit whatsoever can be granted to the petitioners."

In view of the aforesaid averment made in the counter affidavit admitting that the award has been declared on 11.01.2000, the first condition prescribed in Section 24 of Act, 2013 stands fulfilled. The question as to whether the possession of land in dispute which was subject matter of acquisition has been taken by the respondent-NOIDA, is a disputed question of fact, inasmuch as averments on oath contrary to each other have been made by both the parties. However, said issue will not detain us from proceeding further in the matter, inasmuch as the second condition in Section 24 (2) of the Act, 2013 consists of two contingencies, physical possession of the land has not been taken or the compensation has not been paid. The use of word 'or' by the Legislature clearly goes to show that, in case, where an award has been made five years or more prior to commencement of the Act and either of the two contingencies, viz., physical possession of the land has not been taken or the compensation has not been paid, is satisfied, such acquisition proceedings were deemed to have lapsed. The provisions of Section 24 (2) has been subject matter of interpretation by Hon'ble Apex Court in the case of Pune Municipal Corporation & Anr. Vs. Harakchand Misirimal Solanki & Ors., (2014) 3 SCC 183. It may be relevant to quote paragraphs 10 and 11 of the report, where this issue has been discussed and answered.

"10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24 (1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed.

11. Section 24 (2) also begins with non obstante clause. This provision has overriding effect over Section 24 (1). Section 24 (2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or

(ii) the compensation has not been paid; such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24 (2) deals with a situation where in respect of the acquisition initiated under the 1894 Act 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 the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act."

The same view has been reiterated in the case of Bharat Kumar Vs. State of Haryana & Anr., (2014) 6 SCC 586. After noticing the provisions of Section 24 of the Act, 2013, it has been held as under.

"Sub-section (2) of Section 24 commences with a non obstante clause. It is a beneficial provision. In view of this provision, if the physical possession of the land has not been taken by the acquiring authority though the award is passed and if the compensation has not been paid to the land owners or has not been deposited before the appropriate forum, the proceedings initiated under the 1894 Act is deemed to have been lapsed."

The ratio of the decision of the Pune Municipal Corporation (supra) has been reaffirmed by the Hon'ble Apex Court in the case of Bimla Devi & Ors. Vs. State of Haryana & Ors., (2014) 6 SCC 583, Union of India & Ors. Vs. Shiv Raj & Ors., (2014) 6 SCC 564, Shree Balaji Nagar Residential Association Vs. State of Tamil Nadu & Ors., (2015) 3 SCC 353 and Velaxan Kumar Vs. Union of India & Ors., (2015) 4 SCC 325.

Again, in a recent decision in the case of Rajiv Chowdhrie HUF Vs. Union of India & Ors., 2015 (3) SCC 541, the ratio of the decision in the case of Pune Municipal Corporation (supra) has been reaffirmed.

Thus, it is well settled by various pronouncements of the Hon'ble Apex Court noted above that even if one of the two negative conditions prescribed in Section 24 (2) stands fulfilled and the award is made five years prior to commencement of Act, 2013, which is 01.01.2014, the proceedings shall be deemed to have lapsed.

In the light of the aforesaid, we now proceed to test whether the compensation has not been paid to the petitioners and, thus, the second alternative negative condition prescribed by Section 24 (2) stands fulfilled.

In the counter affidavit filed on behalf of the NOIDA in paragraphs 35 and 37, it has been pleaded as under.

"35. That the contents of paragraph no. 15 of the 1st supplementary affidavit need no reply from the side of answering respondents. It is, however, submitted that 95% of compensation has already been disbursed by the answering respondents. The petitioners with mala fide intention did not accept the compensation, as such, it has been deposited with A.D.M. (L.A.).

37. That the contents of paragraph no. 17 of the 1st supplementary affidavit are not admitted and are denied. It is further submitted that compensation has already been paid by the answering respondents, which has been deposited with ADM (LA), the same can very well be received by the petitioners."

In view of the aforesaid averments, it is, thus, clear that compensation has neither been paid to the petitioners nor it has been deposited in the court to which a reference under Section 18 would be submitted as mandated by Section 31 of Act, 1894, which reads as under.

"31. Payment of compensation or deposit of same in court. - (1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the court to which a reference under Section 18 would be submitted: "

Thus, Section 31 of Act, 1894 enjoins upon the Collector of making an award under Section 11 to tender payment of compensation to persons interested entitled thereto according to the award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2), which are:

(i) the person interested entitled to compensation did not consent to receive it, (ii) there is no person competent to alienate the land, and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it.

If due to any of the contingencies contemplated in Section 31 (2) of Act, 1894, the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, he is required to deposit the compensation in the court to which reference under Section 18 may be made.

While interpreting the expression 'compensation has not been paid' used in Section 24 (2), Hon'ble Apex Court in the case of Pune Municipal Corporation (supra), has held as under.

"15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31 (2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18.

16. The mandatory nature of the provision in Section 31 (2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Section 32, 33 and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.

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). 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.

18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad[1]) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."

The same view has been reiterated in the case of Bharat Kumar (supra), Bimla Devi (supra), Rajiv Chowdhrie HUF (supra) and Sita Ram Vs. State of Haryana & Anr., (2015) 3 SCC 597.

In view of the undisputed and admitted facts of the case that award was made on 11.01.2000 and the petitioners have not received the compensation and since the same was deposited with the A.D.M. (L.A.), in view of the law laid down by the Hon'ble Apex Court referred to above, will not tantamount to compensation paid to the land holders/persons interested, inasmuch as the law stands settled that unless the deposit is made in the court to which a reference would lie in accordance with Section 31 of the Act, 1894 and the acquisition proceedings initiated under the old Act cannot escape the mischief of Section 24 (2) of Act, 2013.

In view of the aforesaid facts and discussions and the reasons recorded by us, the acquisition proceedings in respect of the petitioners' land stands lapsed.

The writ petition, accordingly, stands allowed. The impugned notification in so far as the land of the petitioners is concerned, the same stands quashed.

We, however, leave it open to the State Government, if it so chooses, to initiate proceedings for acquisition of the land in dispute afresh in accordance with the provisions of Act, 2013.

However, in the facts and circumstances, we do not make any order as to costs.

December 15th, 2015

VKS