Araul Refrigeration Industries ... vs State Of U.P. & 3 Others
2015 Latest Caselaw 605 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 9
 

 
Case :- WRIT - C No. - 29680 of 2015
 

 
Petitioner :- Araul Refrigeration Industries Pvt. Ltd. & Another
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Vishnu Sahai,Aman Mehrotra
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Dubey
 

 
Hon'ble Arun Tandon,J.

Hon'ble Surya Prakash Kesarwani,J.

Heard Sri Vishnu Sahai, learned counsel for the petitioners and learned Standing Counsel on behalf of State -Respondents.

Petitioners before this Court seek quashing  of the Notification dated 24.12.2013  issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act 1894")  published in the official gazette on 4.1.2014 as also the Notification dated 20.1.2015 issued under Section 6 of the  Land Acquisition Act, 1894.

The notifications  are challenged on the ground  that the Notification under Section 4 was published in the newspapers in the year 2013, while the same Notification was published in the  official gazette on 4.1.2014. Date of publication in the gazette  is subsequent to the enforcement of the The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "Act 2013") which has been enforced w.e.f. 1.1.2014. It is, therefore, submitted that the date of publication of the Notification in the official gazette is the date  of initiation of the acquisition proceeding  which  is subsequent   to the  repeal of the Land Acquisition Act, 1894, as per Section 114 of Act, 2013, which is legally not permissible.  Similarly, it is stated that  Notification under Section 6 of the Act has been admittedly issued in the year 2015 when the Act, 2013  had came into force.  Because of  Section 114 of Act, 2013,  the proceeding under the old Act, 1894 could not have been continued. The other ground which has been pressed before this Court is that the petitioner filed his objections under Section 5A of the Act, 1894, which had not been considered before issuance of Section 6 notification and that no opportunity of personal hearing was afforded to the petitioners.

We may first  deal with the issue with regard to the publication  of Notification under Section 4 of the  Act, 1894  in the official gazette in the month of January, 2014  i.e. whether the   publication  of such notification in the facts of the case under the old Act, 1894 is legally sustainable or not ?

It is no doubt true that vide  Section 114 of the Act, 2013, the Land Acquisition Act, 1894  has been repealed. Section 24 of the Act, 2013 is relevant in respect of the proceeding which had been initiated under the old Act, 1894. Section 24 of Act, 2013 reads as follows : -

"Section 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, 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."

From simple reading of Section 24 of the Act, 2013, it is apparently clear that it starts with a non-abstante clause i.e. notwithstanding anything contained in the Act, 2013, which will also include the repealing Section 114. It has been provided  under 24(1)(a) of Act 2013 that  if proceeding under the Land Acquisition Act, 1894 had been initiated,  and  the award under Section 11 of the Land Acquisition Act  has  not been made, then compensation shall be determined  in accordance with the provisions of the Act, 2013. This simply means that  if the proceedings had been initiated under the old Act, 1894  prior to enforcement of Act, 2013 i.e. 1.1.2014, then such proceedings would  continue including making of the award thereunder, subject however to the condition that the amount  of  compensation shall be determined in accordance with the provision of Act, 2013. Section 24 of the Act, 2013, therefore, saves the proceedings  which had been  initiated under the old Act, 1894. The  proceedings  so initiated shall not be effected  because of the enforcement of the Act, 2013. The proceedings will have to  be taken to their logical end subject to condition that if the award has not been made then  the compensation will be determined under the Act, 2013  .

Now we have to see as to whether in the facts of this case acquisition proceedings had been initiated under the old Act, 1894 prior to 1.1.2014 or not .

For the said issue, we have to examine as to under the Act, 1894 when the proceeding of  acquisition  can be said to have been initiated. Whether publication of the notification under Section 4 in newspapers  would result  in initiation of the acquisition proceedings or not or it is only the date of publication in gazette which will be the  determining factor. It is worthwhile to reproduce Section 4 of Act, 1894 which reads as follows :

"4. Publication of preliminary notification and powers of officers thereupon.-(1)  Whenever  it appears to the [appropriate Government] that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at  least one shall be in the regional  language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)] 

(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen, -

to enter upon and survey and take levels of any land in such locality ; to dig or bore into the sub-soil ;

to do all other acts necessary to ascertain whether the land is adapted for such purposes ;

to set out the boundaries of the land proposed to be taken and the intended lien of the work ( if any) proposed to be made thereon;

to mark such levels, boundaries and line by placing marks and cutting  trenches ; and,

where otherwise the survey cannot be completed and the levels taken and the boundaries and lien marked, to cut down and clear away any part of any standing crop, fence or jungle:

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling - house ( unless with the consent of the occupier thereof) without previously giving such occupier at least seven days'  notice in writing of his intention to do so."

From  simple reading of Section 4 it  is clear that after the State Government after  forming an opinion that the land in any locality is needed or is likely to be needed for any public purpose or for a company, it shall  publish a notification stating the purpose for which the land is needed, or is likely to be needed describing the  affected area in the manner prescribed.

The manner of the publication is provided under Section 4(1) of the Land Acquisition Act, 1894.

Thus, the Notification under Section 4 (1) of he Act, 1894  has to be published  in Official Gazette and in two daily newspapers having circulation in that locality of which at least one shall be in the regional language  to be  followed by publication, by beat of drums etc.  through Collector of the area.

We may record that notification under Section 4  has to be published in official gazette and newspapers , there is no mandate under the  provisions that the publication  in the  official gazette shall precede  the publication in the newspaper.

In the facts of the present case  publication in the newspaper  had taken place  prior to the enforcement of the Act, 2013 i.e. prior to 1.1.2014. Therefore, we have no hesitation to record that initiation of acquisition proceeding under the old Act, 1894 had taken place prior to the enforcement of Act, 2013.

Having arrived at the said conclusion, we find no illegality in publication of the Notification  under Section 6 of the Act, 1894 subsequent to the enforcement of Act, 2013. Such Notification is saved by Section 24 of the Act, 2013.

Copy of the notification  published under Section 6 has been enclosed at page 73 of the present paper book. The notification records that the same is being published  under Section 6 of the Act, 1894 but compensation shall be determined in accordance with the provision of the Act, 2013.

The objections raised by the learned counsel for the petitioners  are ,therefore rejected.

This take the Court to the last ground raised namely the procedure  prescribed in respect of publication of the Notification under Section 6  of Act, 1894 having been followed or not. 

We require  the Standing Counsel  to file an affidavit of the competent authority  by 6th July, 2015 for explaining as to whether the objections raised by the petitioners had been considered and decided before the publication  of Notification under Section 6 was made or not and  as to whether any opportunity of personal hearing  had been afforded to  the petitioners or not. It may also be indicated as to whether Munadi  was done in the concerned locality or not.

Put up on 28th May, 2015.

Order Date :- 21.5.2015

Mukesh

.

Case :- WRIT - C No. - 29680 of 2015

Petitioner :- Araul Refrigeration Industries Pvt. Ltd. & Another

Respondent :- State Of U.P. & 3 Others

Counsel for Petitioner :- Vishnu Sahai,Aman Mehrotra

Counsel for Respondent :- C.S.C.,Sunil Kumar Dubey

Hon'ble Arun Tandon,J.

Hon'ble Surya Prakash Kesarwani,J.

For order see our order of date passed on separate sheets. 

Order Date :- 21.5.2015

Mukesh