Jila Singh @ Jile Ram And 2 Others vs Union Of India And 4 Others
2017 Latest Caselaw 3294 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.39
 

 
Case :- WRIT - C No. - 36634 of 2017
 

 
Petitioner :- Jila Singh @ Jile Ram And 2 Others
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Gautam Kumar
 
Counsel for Respondent :- C.S.C.,A.S.G.I.,Anjali Upadhya
 

 
Hon'ble Dilip Gupta, J.

Hon'ble Dinesh Kumar Singh-I, J.

The petitioners claim to be co-owners with transferable rights of Khasra No.48 ad-measuring 7-14-10 bighas and Khasra No.49 ad-measuring 6-15-1 bighas of land situated in village Sakipur, Pargana Dadri, Tehsil Sadar, District Gautam Budh Nagar. The aforesaid land was included in the notification dated 31 December 2004 issued under section 4(1) of the Land Acquisition Act, 18941 for acquisition of 504-7-19-0 bighas of land as also the declaration made under section 6 of the 1894 Act in regard to the 498-2-1-0 bighas of land. Possession of 461-2-10-10 bighas of land, including that of the land of the petitioners, was taken between 30 December 2005 and 28 January 2011. In fact, possession of the land belonging to the petitioners was taken on 30 December 2005 and the compensation was paid to the petitioners on 29 January 2007 on the basis of an agreement entered into between the parties under the provisions of the Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 19972. The award was subsequently made by the Special Land Acquisition Officer under section 11 of the 1894 Act on 6 August 2011.

The records indicate that the petitioner had earlier filed Writ-C No.54048 of 20163 asserting that the acquisition stood lapsed in view of the provisions of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20134 as possession of the land had not been taken, though compensation had been paid. This petition was disposed of on 11 November 2016 with a direction to the petitioners to move an appropriate application before the District Magistrate in terms of the Government Order dated 30 January 2015 and the District Magistrate was directed to send his recommendation to the State Government within six weeks so that the State Government could pass an order. The judgment is reproduced below :

"Heard learned counsel for the petitioner and Sri Ramendra Pratap Singh, the learned counsel appearing for the respondent no.4.

The petitioner contends that pursuant to a notification issued in the year 2004, the petitioner entered into an agreement and under the Karar Niyamawali 1997 compensation was paid but till date possession has not been taken. The contention of the petitioner is that the acquisition proceeding stood lapsed in view of the provision of Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. In this regard the Court finds that the State Government has issued a notification dated 30.1.2015 by which the Collector will process the matter and send its recommendation to the State Government for final decision.

In view of the aforesaid, we dispose of the matter directing the petitioner to move an appropriate application before the District Magistrate in terms of the Government Order dated 30.1.2015. If such an application is filed, the District Magistrate will process the matter and send its recommendation to the State Government within six weeks from the date of production of a certified copy of the order. The State Government will thereafter pass appropriate orders on the petitioner's application."

(emphasis supplied)

The petitioners filed a representation dated 16 December 2016 before the State Government in regard to 7-14-17 bighas of land situated in Khasra No. 48 as is clear from the comments submitted by the District Magistrate, Gautam Budh Nagar to the State Government. The comments mention that possession of the aforesaid plot was taken on 30 December 2005, compensation was received on the basis of an agreement under the 1997 Rules and the award was made under section 11 of the 1894 Act on 6 August 2011. Thus, the representation was liable to be rejected.

The decision of the State Government has not been filed but this petition has been filed not only for quashing the comments dated 25 January 2017 sent by the District Magistrate but also for the following additional reliefs:

"i) a writ, order or direction in the nature of certiorari quashing the order dated 25.01.2017 (Annexure-2) passed by the District Magistrate, Gautam Budh Nagar.

ii) writ, order or direction in the nature of Mandamus/declaration declaring Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ultra vires Article 14 of the Constitution of India.

iii) issue a writ, order or direction in the nature of mandamus commanding the respondents to delete words 'to the commencement of this Act, but' contained in Section 23(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

iv) issue a writ, order or direction in the nature of mandamus commanding the respondents to amend the provisions of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to read; Notwithstanding anything contained in Sub-section (1) of the land acquisition proceedings initiated under Land Acquisition Act, 1894 where an award under Section 11 of the Act 1894 has been made five years or more and physical possession of the land has not been taken or the compensation has not been paid, shall be deemed to have lapsed and the appropriate Government if it so choose, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.

v) issue a writ, order or direction in the nature of mandamus declaring proceeding of the land of the petitioner being Khasra No.48 area 7-14-10 Bigha and Khasra No.49 area 6-15-01 Bigha of Revenue Village Sakipur, Pargana Dadri, Tehsil Sadar District Gautam Budh Nagar being a lapsed.

vi) issue a writ, order or direction commanding the respondents that appropriate Government if it so choose shall initiate proceeding of such land acquisition afresh in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013."

Sri Gautam Kumar Upadhyay, learned counsel for the petitioners has referred to the provisions of Section 24(2) of the 2013 Act and has submitted that fixing of 5 years period for the award under section 11 of the 1894 Act from the date of commencement of the 2013 Act i.e. 1 January 2014 is arbitrary. To substantiate his submission, learned counsel pointed out that if the award under Section 11 of the 1894 Act was made 5 years or more prior to 1 January 2014 but compensation has not been paid or physical possession of the land has not been taken, the acquisition would lapse. However, in case the award has been made under section 11 of the 1894 Act within 5 years from 1 January 2014 it would not. The submission, therefore, is that the fixing of 1 January 2014 as the date from which the period of 5 years should be counted is arbitrary and in fact no date should have been fixed. In the alternative, learned counsel submitted that since compensation for the land acquired was paid on 29 January 2007, the said date should be taken as the date on which the award was made and, if that be so, the provisions of Section 24(2) of the 2013 Act would apply since the award was made five years or more prior to 1 January 2014.

Sri B.B. Jauhari, learned counsel appearing for the Greater Noida Industrial Development Authority5 and the learned Additional Chief Standing Counsel appearing for the State of Uttar Pradesh have, however, contended that Section 24(2) does not suffer from the vires of discrimination and that the date of payment of compensation under the provisions of the 1997 Rules cannot be said to be the date on which the award under section 11 of the 1894 Act was made.

We have considered the submissions advanced by the learned counsel for the parties.

In order to appreciate the contentions, it would be useful to reproduce Section 24 of the 2013 Act and the same is as follows:-

"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."

Before dealing with the contentions advanced by the learned counsel for the parities, it would be useful to first examine the factual aspect.

The notification under Section 4(1) of the Act was issued on 31 December 2004 for acquisition of 504-7-19-0 Bighas of land situated in village Sakipur, Pargana Dadri, Tehsil Sadar District Gautam Budh Nagar for planned industrial development. The provisions of Section 17(1) and (4) were made applicable. The declaration under Section 6 of the Act was made on 5 September 2005 for 498-2-1-0 bighas of land. Possession of 438-4-9-10 bighas of land was taken by the State on 30 December 2005, of 20-4-19 bighas on 7 March 2008 and of 2-13-2 bighas of land on 28 January 2011. Thus, possession of 461-2-10-10 bighas of land was taken between 30 December 2005 and 28 January 2011. Possession of 36-19-10-10 bighas of land was not taken because of the interim orders passed by the High Court nor award was made for this area.

The award for 461-10-10 bighas was made under Section 11 of the 1894 Act on 6 August 2011. The award mentions that compensation for an area ad-measuring 402-97-15-19 bighas was determined by agreement under the provisions of the 1997 Rules and for remaining area ad-measuring 59-1-14-11 bighas, the award was made under section 11(1) of the 1894 Act after determining the market rate of the land on the basis of exemplar sale deeds. The award also specifically mentions the plot numbers of which possession was not taken because of the interim orders passed by the High Court. Plot Nos.48 and 49 are not contained in the said list. Thus, these two plots were not covered by the interim orders passed by the High Court. The petitioners have also not asserted that any petition was filed by them to challenge the acquisition and interim order was passed as a result of which possession could not be taken or the award was not made. These two plots are in fact included in the plots for which compensation was paid on the basis of an agreement entered into under the provisions of the 1997 Rules. The petitioners also assert that compensation was paid on 29 January 2007. The award was subsequently made under section 11 of the 1894 Act on 6 August 2011 on the basis of the compensation agreed upon under the 1997 Rules, as is clear from a bare perusal of the award, a copy of which has been enclosed as Annexure No. 7 to the writ petition.

The petitioners had earlier filed Writ Petition No.54048 of 2016 alleging that the acquisition stood lapsed under section 24(2) of the 2013 Act as physical possession had not been taken, though compensation had been paid. This petition was disposed of on 11 November 2016 with a direction to the petitioner to move an application before the District Magistrate who was then required to send his recommendation to the State Government. The District Magistrate, Gautam Budh Nagar sent his comments dated 25 January 2017 to the State Government mentioning that possession of the land was taken on 30 December 2005, compensation was paid on 29 January 2007 and the award was also made under section 11 of the 1894 Act on 6 August 2011.

This petition has been filed to challenge the comments and for other reliefs referred to above.

In the first instance, it was for the petitioners to have also sought a relief that Section 24(2) of the 2013 Act is ultra vires Article 14 of the Constitution in the earlier writ petition filed by them but what transpires from the judgment dated 11 November 2016 rendered in the earlier writ petition filed by the petitioners is that the only submission that was made was for declaring that the acquisition stood lapsed under Section 24(2) of the 2013 Act since compensation was paid but possession had not been taken. Such being the position, it is not open to the petitioners to now challenge the vires of Section 24(2) of 2013 Act, when a finding has been recorded by the District Magistrate in the impugned comments, that possession of the acquired land had been taken on 30 December 2005 and the award was made on 6 August 2011.

It also needs to be noted that no submission has been advanced by learned counsel for the petitioners nor any ground has been taken in the petition that this finding is incorrect. In this view of the matter when possession had been taken and compensation had also been paid, it is not open to the petitioners to contend that the acquisition would stand lapsed under section 24(2) of the 2013 Act, irrespective of when the award was made, even if it be accepted that the fixing of 1 January 2014 from which the period of five years has to be counted for the making of the award is arbitrary and hit by Article 14 of the Constitution.

However, as learned counsel for the petitioners has made submissions that section 24(2) is ultra vires Article 14 of the Constitution, it is considered necessary to deal with this issue also.

The submission of learned counsel for the petitioners is both with regard to the fixation of 5 years period for the award to have been made prior to the date of commencement of the 2013 Act i.e. 1 January 2014 as also the fixation of 1 January 2014 as the date from which the aforesaid period of five years should be counted.

To appreciate the contentions advanced by learned counsel for the petitioners, it would also be useful to first examine the conditions under which a challenge can be made to the fixing of a date and the period as basis for classification.

The Supreme Court in Union of India and another Vs. M/s. Parameswaran Match Works, etc.6, pointed out that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. The Supreme Court also observed that there has to be a line or a point and there can be no mathematical or logical method of fixing it precisely and that the decision of the legislature or its delegate must be accepted unless it is found to be very wide of any reasonable mark.

The aforesaid decision of the Supreme Court was followed in Dr. (Mrs.) Sushma Sharma etc. Vs. State of Rajasthan and others7, State of Bihar and others Vs. Ramjee Prasad and others8 and University Grants Commission Vs. Sadhana Chaudhary and others9.

In the case of Dr. V.P. Malik and others Vs. Union of India10, the Supreme Court considered whether the fixation of 1 December 1991 as the date for implementing the recommendations of the Tikoo Committee report could be regarded as arbitrary. The Tikoo Committee report recommended that the teaching specialists should be placed in the grade of Rs. 4500-5700 after four years of the granting of the scale of Rs. 3700-5000, and distinction between the functional grade and non-functional grade should be done away with and promotion be made to the grade of Rs. 4500-5700 on a time-bound basis on completion of 8 years as specialists. It was submitted that they have not been implemented from the date of the submission of the report on 31-10-1990, but from 1-12-1991. The stand of the Ministry, however, was that as the Office Memorandum could be issued only on 14-11-1991 incorporating the decisions of the Government relating to the various recommendations of the Committee, the benefit was made available from the first day of the ensuing month i.e. December 1991.

In this context, the Supreme Court observed as follows:-

"As to whether the fixation of the date (1-12-1991) can be regarded as arbitrary, it may be stated that fixation of a cut-off date can be so regarded by court if the same be one about which it can be said that it has been "picked out from a hat", as stated by this Court in D.R. Nim V. Union of India. A Bench of this Court to which one of us (Hansaria, J.) was a party examined the question of fixation of cut-off date on the touchstone of Article 14 in Union of India v. Sudhir Kumar Jaiswal. In that case the case of D.R. Nim was noted in para 4, followed by reference to other important decisions on this aspect in paras 5 to 7. We do not propose to reiterate what was stated in Jaiswal case. It would be enough to point out that the observation of Holmes, J. in Louisville Gas and Electric Co. V. Clell Coleman, that a choice of cut-off date can be interfered with if the fixation be "very wide of any reasonable mark" was cited with approval by this Court in Union of India V. Parameswaran Match Works. It was further added that a choice of date cannot be dubbed as arbitrary unless it is shown to be capricious or whimsical in the circumstances.

In the present case, the date (1-12-1991) having been fixed because of the issuance of the Office Memorandum containing the decisions of the Government on the Tikoo Committee recommendations on 14-11-1991, the cut-off date of 1-12-1991 is far from arbitrary and whimsical; it is really reasonable. It has not been picked out from a hat, but is founded on logic."

(emphasis supplied)

A Division Bench of this Court in D.B. Kauser Vs. Union of India & Anr.11 also examined the circumstances under which the cut off date can be said to be arbitrary and the observations are as follows :-

"5. So far as the challenge to the cut off date is concerned, the Court should not forget that while fixing the cut off date, the Authority has to consider various aspects of the case and there is very limited scope of judicial interference in such matters. It is settled proposition of law that a cut off date can be introduced, but it is not permissible to do in such an artificial manner that it may discriminate the similarly situated persons. Cut off date may be introduced by creating a fiction but while doing so, the consequences must be examined thoroughly and the date must have some nexus to the object sought to be achieved. Generally it should be prospective but may have retrospective effect also. Consideration of financial constraints on public exchequer etc. are good and valid reasons for fixing particular cut-off date by the legislature directly or by the executive instructions."

(emphasis supplied)

After considering a number of judgments of the Supreme Court on this issue, the Division Bench observed :

"7. The ratio of the aforesaid judgments is that if the State cannot bear the financial burden to meet a particular requirement, it may be a sufficient cause to fix a particular cut off date and even to make the law with retrospective effect. However, the basis must be shown to have a nexus with the object of classification as well as of legislative exercise. If the choice of fixing a particular date is shown to be wholly arbitrary and introduces discrimination, which violates the mandate of Article 14 of the Constitution, the date can be struck down for the reason that a purpose of choice unrelated to the object sought to be achieved cannot be accepted as valid. However, in a given case the fixing of a period of experience or from what particular date it will run, are within the legislative competence and wisdom and there is nothing which may warrant a Court to invalidate such an enactment/ executive instruction. If the law/ rules/ regulation is based on experience and the legislature has the freedom to choose the minimum period of experience required and the date from which such experience is to be computed, i.e. fixation of a certain tenure of service for the purpose of grant of advanced increment (s) / absorption / regularization promotion, then fixation of such criteria has a rational nexus with the object sought to be achieved. In such matters, the homogenous class of existing employees cannot be divided in two separate classes on arbitrary and irrational basis. If fixing of a cut off date is not devoid of rational consideration and wholly not whimsical and the Authorities had not acted malafide with a view to deprive a particular section of employees of such benefits and the cut off date has been fixed on the recommendation of the Expert Committee/Board or on proper consideration by the Authority concerned, it may meet the test of reasonableness and cannot be held arbitrary. While examining the cases like the instant, the Court has to be very conscious because judicial review is not permissible unless the Court is satisfied that the cut off date is "very wide off the reasonable mark or so capricious or whimsical as to permit judicial interference." In all such matters, the Government/Authority has to fix a particular date for computing the eligibility and if the date so adopted meets the test of reasonableness, it cannot be invalidated merely on the ground that it may adversely affect some persons. In such a case the rational behind the Policy has to be examined."

(emphasis supplied)

In Government of Andhra Pradesh & Ors. Vs. N. Subbarayudu & Ors.12, the Supreme Court also observed :

"5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab and Ors. v. Amar Nath Goyal and Ors, (2005) 6 SCC 754.

......................

7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.

8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad, (1990) 3 SCC 368, Union of Indian and Anr. v. Sudhir Kumar Jaiswal, [(1994) 4 SCC 212 para 5], Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors., [(2004) 2 SCC 76 para 31], University Grants Commission v. Sadhana Chaudhary, (1996) 10 SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.

9. As has been held by this Court in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and in Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720 the court must maintain judicial restraint in matters relating to the legislative or executive domain."

(emphasis supplied)

The Supreme Court in Central Bank of India Vs. M. Sethumadhavan & Ors.13, also examined whether the Central Bank of India was justified in fixing a cut off date for payment of gratuity. The pay had been revised with effect from 1 July 1993 but in relation to gratuity it was stipulated that the benefit of the revised pay for the purpose of calculation of gratuity would be for those who retired after 31 October 1994. Thus, for those who retired prior to 31 October 1994, the calculation of gratuity was to be on the basis of the pre-revised scale. Repelling the contention that the date was fixed in an arbitrary manner, the Supreme Court observed :

"8. Fixing of cut-off date has been a well accepted principle and we do not find that the same needs to be supported by any judgment since it has been the consistent view taken by this Court. In State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754, which was subsequently followed in Government of Andhra Pradesh v. N. Subbarayudu, reported in (2008) 14 SCC 702, this Court has referred to all the judgments in that regard. In the peculiar facts of this case, having regard to the background of the regularisation making process, we are of the view that the cut-off date fixed by the appellants in the regularisation was not arbitrary, unjust or unfair."

What, therefore, transpires from the aforesaid judgments is :

(i) The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming unless it is shown to be capricious or whimsical;

(ii) There has to be a point from which the period has to be counted and there cannot be any mathematical or logical method of fixing a precise date. The decision of the legislature or its delegate must be accepted unless it is found to be very wide of any reasonable mark;

(iii) A choice of date can be regarded as arbitrary by the Court if it can be said that it has been "picked out from a hat";

(iv) A choice of date can be struck down if the purpose of choice is unrelated to the object sought to be achieved;

(v) In a given case, the fixing of a period of experience or from what particular date it will run, are within the legislative competence and wisdom;

(vi) The Government/Authority can fix a particular date for computing the eligibility and if the date so adopted meets the test of reasonableness, it cannot be struck down merely on the ground that it may adversely affect some persons;

(vii) The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix a cut off date; and

(viii) The Court must not declare a date to be arbitrary and violative of Article 14 of the Constitution unless the said cut off date on the face of it is blatantly discriminatory or arbitrary and leads to some capricious or outrageous result.

It is in the light of the principles enunciated in the aforesaid decisions that the submission advanced by the learned counsel for the petitioners regarding the provisions of sub-sections (1) and (2) of section 24 of the 2013 Act have to be examined.

It needs to be noted that the 2013 Act that repeals the 1894 Act was published in the Gazette on 27 September 2013 and came into force on 1 January 2014. It provides in section 11 for publication of the preliminary notification while the declaration and summary of rehabilitation and resettlement is contemplated under section 19 of the 2013 Act. The award is made by the Collector under section 23. Section 24(1) of 2013 Act provides that notwithstanding anything contained in the 2013 Act, in any case of land acquisition proceedings initiated under the 1894 Act, where no award under Section 11 of the 1894 Act has been made, then all the provisions of 2013 Act relating to the determination of compensation shall apply but where an award under Section 11 has been made, then such proceedings shall continue under the provisions of the 1894 Act, as if, the said Act had not been repealed. Thus, what has been made clear under sub-section (1) of Section 24 is that if the award has not been made under Section 11 of the 1894 Act by 1 January 2014, then all the provisions of the 2013 Act relating to determination of compensation shall apply. In other words, even if the proceedings had been initiated under the provisions of the 1894 Act by issuance of a notification under Section 4(1) of the 1894 Act and the making of declaration under Section 6 of the 1894 Act but award has not been made under section 11 of the 1894 Act prior to 1 January 2014, then in that case the provisions of the 2013 Act relating to determination of compensation shall apply. However, in case the award under section 11 of the 1984 Act has been made prior to 1 January 2014, then the proceedings shall continue under the provisions of the 1894 Act as if the said Act had not been repealed.

Sub-section (2) of Section 24 of the 2013 Act, however, provides that notwithstanding anything contained in sub-section (1), where an award has been made under Section 11 of the 1894 Act five years or more prior to 1 January 2014 but the physical possession of the land has not been taken or the compensation has not been paid, the said proceedings shall stand lapsed.

Thus, both under sub-section (1) and sub-section (2) of Section 24 of the 2013 Act, the cut off date has been taken as the date of commencement of the 2013 Act, namely 1 January 2014. It was clearly the intention of the legislature to make things clear about the acquisitions made under the repealed 1894 Act on the date when the 2013 Act came into force. If the award under Section 11 of the 1894 Act had not been made prior to 1 January 2014, then the provisions of the 2013 Act would apply for determination of the compensation and if the award had been made prior to 1 January 2014 then all the provisions of the 1894 Act would apply to proceedings. However, the acquisition proceedings initiated under the provisions of the 1894 Act would lapse if the award was made under section 11 of the 1894 Act five years or more prior to 1 January 2014 but compensation was not paid or physical possession was not taken.

The contention of learned counsel for the petitioners is that there was no justification for the legislature to fix 1 January 2014 as the date from which the period of five years or more has to be counted and that there was no justification for declaring that the acquisition would lapse only in those cases where the award was made under section 11 of the 1894 Act five years or more prior to 1 January 2014. The 2013 Act, as noticed above, came into force on 1 January 2014. It cannot, therefore, be said that the aforesaid date has been "picked out from a hat" by the Legislature or that it is so capricious or whimsical and unrelated to the object sought to be achieved. The legislature intended to consider those acquisitions where the award under the 1894 Act had already been made prior to 1 January 2014 because if the award had not been made by 1 January 2014, the award had necessarily to be made keeping in mind the provisions relating to determination of compensation under the 2013 Act as is contemplated under section 24(1)(a) of the 2013 Act. The legislature also intended that acquisition shall lapse in such cases where the award had been made five years or more prior to 1 January 2014, provided ofcourse compensation had not been paid or physical possession of the land had not been taken.

The Supreme Court has time and again observed that fixing of a particular period and the date from which the particular period has to be counted are within the domain of the legislature. The legislature has the freedom to choose the date and the period required from the said date for a particular benefit to be conferred and unless it is established that the said date is capricious or whimsical, the Courts would not be justified in interfering. In fact the Courts must exercise judicial restraint and leave it to the legislature and the executive authorities to fix the cut off date. The petitioners have failed to substantiate that the fixing of 1 January 2014 as the date from which the period of five years has to be counted is, on the face of it, blatantly discriminatory or arbitrary. Five years period was considered to be reasonable by the Government because if the award had been made and physical possession was not taken or compensation was not paid, the Government may not be interested in the acquisition and, therefore, it was considered appropriate to declare that the acquisition would lapse. The petitioners cannot, therefore, be permitted to contend that no date or period should have been fixed for the making of the award. It cannot also be urged, merely because in certain cases the acquisition would not lapse, that the fixing of the cut off date or providing a minimum period for the award to have been made prior to 1 January 2014 is ultra vires Article 14 of the Constitution. The classification has a clear nexus to the object sought to be achieved.

At this stage it would also be pertinent to refer the proviso to section 17 of the U.P. Urban Planning and Development Act, 197314. Section 17 of the 1973 Act deals with compulsory acquisition of land. Sub-section (1) of section 17 provides that if in the opinion of the State Government, any land is required for the purpose of development, or for any other purpose, under 1973 Act, the State Government may acquire such land under the provisions of the 1894 Act. The proviso, however, stipulates that any person from whom any land is so acquired may after the expiration of a period of of five years from the date of such acquisition apply to the State Government for restoration of that land to him on the ground that the land has not been utilized within the period for the purpose for which it was acquired and if the State Government is satisfied to that effect it shall order restoration of the land to him on repayment of the charges which were incurred. Thus, in the said Act also, five years period has been considered to be a reasonable period within which the acquiring body should utilize the land for the purpose for which it was acquired.

It also needs to be noted that the Collector proceeds to determine the market value of the land under section 23 of the 2013 Act on the date of publication of the notification under section 11 of the 2013 Act. Section 26 of the 2013 Act also provides that the date for determination of the market value of the land shall be the date on which the notification has been issued under section 11 of the 2013 Act. Difficulties, however, arose in those cases where the acquisition proceedings had commenced under the 1894 Act but the award could not be made by 1 January 2014. Under section 24(1)(a) of the 2013 Act, the compensation has to be determined under the provisions of the 2013 Act. In such circumstances, the Central Government intervened and issued directions under section 113 of the 2013 Act that the market rate of the land should be determined as on 1 January 2014. In Ishan International Educational Society Vs. State of U.P. & Ors.15, a Division Bench of this Court held, in view of the directions issued by the Central Government under section 113 of the 2013 Act, that it would be reasonable to determine the market value of the land as on 1 January 2014.

This judgment was assailed before the Supreme Court in Special Leave to Appeal (C) No.17660 of 2017 which was dismissed on 19 July 2017. The judgment rendered by the Supreme Court is as follows :

"Heard the learned counsel for the petitioner and perused the relevant material.

We do not find any legal and valid ground for interference. The Special Leave Petition is accordingly dismissed."

Learned counsel for the petitioners also urged that since the compensation was paid to the petitioners on 29 January 2007 on the basis of the amount determined by agreement under the 1997 Rules, the date of making of the award contemplated under section 24(2) of the 2013 Act should be treated as 29 January 2007 and in that case the provisions of section 24(2) of the Act would be applicable since the award would then be made five years or more prior to 1 January 2014.

This contention was repelled by a Division Bench of this Court in Writ-C No.1903 of 201716. The relevant observations are as follows :

"As noted above, the award under section 11 of the 1894 Act was made on 19 August 2011. Five years had not lapsed by 1 January 2014. It is for this reason that learned counsel for the petitioner had contended that the date of the award should be treated as 1 August 2008 on which date the compensation was paid to the petitioner in terms of the agreement arrived at in accordance with the Rules. The Rules have been framed under section 55 of the 1894 Act and Rules 2, 3, 4 and 5, which are relevant, are reproduced below :

"2. The body or Department for which the land if being acquired may, at any stage of the proceedings settle down the terms and conditions and rates of the land under acquisition with the landowners and appear before the Collectors and make an application indicating the terms and conditions so settled down and its readiness and willingness for determination of compensation and declaration of award in accordance with agreement. The Collector shall, if satisfied, issue notice to the persons interested in the land under acquisition to express their readiness and willingness to execute the agreement in writing, on the matters to be included in the award.

3. The Collector may, after hearing the parties, and upon being satisfied that the persons interested in the land are ready and willing to execute the agreement, grant the permission unless, for reasons to be recorded in writing he decides to refuse it.

4. (1) The Collector shall, where he grants the permission inform the persons interested in the land by registered post, about date, time and place for the execution of the agreement.

(2) The agreement shall be executed in the form appended to these rules, with necessary details as to whether possession has, or has not, been taken before the award.

(3) If the persons so informed fail to turn up and execute the agreement on such date, time and place or the extended date, as the case may be, the Collector shall proceed to make enquiry under Section 11 from the stage, at which the application under Rule 2 was made.

5. The amount of compensation to be settled in the agreement shall, always abide by the instructions issued by the State Government of Uttar Pradesh from time to time"

The form of Agreement as contained in Rule 4 (2) of the Rules is reproduced as under:

" Now, therefore, the owner/owners and/or interested party/parties does/do hereby agrees/agree with the Government as follows :--

1. That the Land Acquisition Officer .................... shall be competent to declare the award as per term of this agreement without any further enquiry which is required to be held under the provisions of the Land Acquisition Act, 1894;

2. If the Government deems it necessary to take immediate possession of the land under acquisition even though there is a standing crop on it the Government will be entitled to do so provided that compensation as shown in as per the award is paid;

3. That the owner/owners and interested party/parties shall not claim any amount in addition to the amount agreed upon as aforesaid as compensation and accept it without any protest;

............................"

Thus, under Rule 2, the acquiring body can, at any stage of the proceedings, settle the terms and conditions and rates of the land under acquisition with the land owners. It may then make an application to the Collector indicating the terms and conditions and its readiness and willingness for determination of compensation and declaration of award in accordance with the agreement. The agreement is, therefore, not the award. The award follows the agreement. The rates agreed between the acquiring body and the land owners would form the basis for determination of compensation under the award. The form of agreement also provides that the Land Acquisition Officer shall be competent to declare the award as per the terms of the agreement without any further enquiry and in fact the owners cannot claim any amount in addition to the amount agreed upon as compensation.

The petitioners cannot, therefore, contend that the agreement itself should be treated as an award because payment can only be made after the award is made. Mere making of the payment on the basis of the agreement cannot and does not mean that the agreement itself is the award as the award under section 11 of the 1894 will always follow the agreement though the compensation for the land acquired would be that as agreed upon by the tenure-holders in the agreement and no further inquiry has to be undertaken by the Special Land Acquisition Officer in the process of making the award."

It is, therefore, clear that the date on which the compensation is paid to a tenure holder on the basis of an agreement entered into under the 1997 Rules, cannot be taken as the date on which the award under section 11 of the 1894 Act has been made. The petitioners, therefore, do not satisfy the requirements contained in section 24(2) of the 2013 Act as the award was made within five years from 1 January 2014.

Thus, for all the reasons stated above, it is not possible to accept any of the contentions of the learned counsel for the petitioners.

The writ petition, therefore, deserves to be dismissed and is, accordingly, dismissed.

Order Date :- 17.08.2017

GS

(Dilip Gupta, J.)

(Dinesh Kumar Singh-I, J.)