Naresh Pal Singh & 98 Others vs State Of U.P. & 3 Others
2015 Latest Caselaw 735 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - C No. - 32858 of 2015
 

 
Petitioner :- Naresh Pal Singh & 98 Others
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Anil Sharma,Dheeraj Singh Bohra
 
Counsel for Respondent :- C.S.C.,Mahendra Pratap
 

 
Hon'ble Arun Tandon,J.

Hon'ble Surya Prakash Kesarwani,J.

Heard learned counsel for the parties.

Ninety-nine (99) tenure holders have filed this writ petition for quashing of the notification issued under Section 4 and dated 19.12.2012 of the Land Acquisition Act, 1894 (herein after referred to as the Act, 1894) as well as the notification issued under Section 6 of the Act, 1984 dated 20.10.2014.

The notifications are challenged basically on one ground before us namely that the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (herein after referred to as the Act, 2013) had been enforced w.e.f. 01.01.2014. Section 114 of the Act, 2013 declares that the Act, 1894 stands repealed. It is, therefore, submitted that the publication of Section 6 notification on 20.10.2014 under the repealed Act, 1894 is illegal.

Counsel for the petitioners, therefore, submits that once the Act, 1893 has been repealed, there was no power with the State to issue notification under Section 6 of the Act, 1894 on 20.10.2014. He contended that the notifications under Section 4 and 6 of the Act, 1894 are rendered illegal. The petitioners cannot be dispossessed from their land holdings in pursuance thereof.

It is no doubt true that vide Section 114 of the Act, 2013, the Land Acquisition Act, 1894 has been repealed.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.

Counsel for the petitioners submitted that issuance of notification under Section 4 of the Act, 1894 cannot be treated to be initiation of the land acquisition proceedings.

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. 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)]

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 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.

The last date of the publication of the notification/giving of public notice under Section 4 of the Act, 1894 is the starting point for computation of the prescribed period for publication of the declaration that a particular land is needed for public purpose or for a Company by the State Government under Section 6 of the Land Acquisition Act. This period for publication of Section 6 notification has been provided for under Section 6 proviso 1 and 2. It is further apparent from a reading of Section 6 that declaration under Section 6 can only be made in respect of plots which were subject matter of notification under Section 4 and not having beyond it. Section 6 (1) and (3) which in so far relevant for our purposes reads as follows :

?Declaration that land is required for a public purpose.--- (1) Subject to the provisions of of Part VII of this Act, [when the appropriate Government] is satisfied, after considering the report, if any, made under section 5A, sub-section (2)], that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders [and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2)]:

[Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),-

i.published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or

ii.published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:]...............

(3) The sad declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the [appropriate Government] may acquire the land in manner hereinafter appearing.?

It may be clarified that sub section 3 of Section 6 of the Land Acquisition Act declares that the notification under Section 6 shall be conclusive evidence that the land is needed for public purpose or Company and after making such declaration, the government may acquire the land in a manner herein after appearing.

It is thus clear that for all practical purpose the publication of the notification under Section 4 is the starting point/initiation of land acquisition proceedings under the Land Acquisition Act, 1894.

In the facts of the present case publication of notification under Section 4 of the Old Act had taken place prior to the enforcement of the Act, 2013 i.e. prior to 1.1.2014 to be precise on 19.12.2012. 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. The objections raised by the learned counsel for the petitioners are, therefore, rejected.

For the aforesaid reasons we do not find any good ground to entertain the present writ petition.

Writ petition is dismissed.

Order Date :- 28.5.2015

VR