Allahabad High Court
Munni Lal And 3 Others vs State Of U.P. And 3 Others on 31 March, 2023
Bench: Sunita Agarwal, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 43418 of 2018
Petitioner :- Munni Lal And 3 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Santosh Kumar Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Budhwar,J.
Order on Restoration Application No.3 of 2021:-
The explanation offered for non appearance of the counsel for the petitioners on the date fixed is to the satisfaction of the Court.
The restoration application is allowed.
The order dated 10.12.2021 passed by this Court is hereby recalled. The writ petition is restored to its original number.
Order on Petition:-
The prayers in the writ petition are as follows:
"I. Issue a writ, order or direction in the nature of certiorari quashing the notification dated 16.12.2002 issued under Section 4(1) and Section 17(4) which has been published in the newspaper namely Gandiv on 20.01.2003 as well as quashing the notification dated 17.01.2004 issued under Section 6 and Section 17(1) of the Land Acquisition Act, 1894 so far as it relates to the land of the petitioners i.e. Plot No.544 area 5 biswa 5 dhoor situated at village Keshavpur Sarpataha Tehsil- Gyanpur, District- Bhadohi.
II. Issue a writ, order or direction in the nature of mandamus directing the respondents authority not to interfere with the peaceful possession of the petitioner in respect of the land in question over which 9 shops have been constructed i.e. Plot No.544 area 5 biswa 5 dhoor situated at village Keshavpur Sarpataha Tehsil- Gyanpur, District- Bhadohi."
It is sought to be submitted by the learned counsel for the petitioners that pursuant to the acquisition notification dated 16.12.2002 under Section 4(1) read with Section 17(4) of the Land Acquisition Act, 1894 (in short, 'the 1894 Act') and the notifications dated 17.01.2004 issued under Section 6 of the 1894 Act, though award had been declared on 27.03.2006 with regard to the land of the entire village including those belonging to the petitioners, but till date the petitioners have not received compensation. The submission is that since the compensation has not been paid to the petitioners and physical possession of the land-in-question is with the petitioners, the entire acquisition proceedings stood lapsed.
On a further query of the Court as to whether the award dated 27.03.2006 is also with regard to the lands belonging to the petitioners, it is admitted by the learned counsel for the petitioners that the determination of compensation for the lands-in-question had been made by the competent authority. The submissions in para '13' and '14' of the writ petition further indicates that being aggrieved by the determination of the compensation, the petitioners have also filed a reference before the competent court which was registered as a Reference Case No.26 of 2009. A writ petition No.20747 of 2013 had also been filed wherein the petitioners had challenged the acquisition notifications, the said writ petition was dismissed vide judgment and order dated 09.02.2016 on the ground of delay further noticing that the award had already been made and the petitioners did not disclose the date of the award in the writ petition. It was also noted that, in case, the petitioners were not satisfied with the order of the Reference Court, they may seek appropriate remedy under the Land Acquisition Act.
Taking note of the fact that the efforts made by the petitioners to challenge the acquisition proceedings had been turned down by this Court and the petitioners themselves have disputed the determination of compensation by filing reference, outcome of which has not been disclosed in the present writ petition, we are of the considered opinion that the claim of the petitioners that the acquisition proceedings stood lapsed on account of non-payment of compensation, is found to be misconceived.
Even otherwise, the Apex Court in the case of Indore Development Authority (Lapse-5J.) vs. Manoharlal; 2020 8 SCC 129 has clarified that position with regard to the applicability of Section 24(2) of the Act, 2013. In para '366' of the said judgement, the provisions of Section 24(2) of the Act, 2013 has been interpreted in the following manner:
"366. In view of the aforesaid discussion, we answer the questions as under:
1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.
2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.
3. 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 proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. 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.
4. The expression 'paid' in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the 1894 Act.
5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.
6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2) not part of Section 24(1)(b).
7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.
9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition"
It was noted by the Apex Court therein that both the ingredients of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short, 'the Act, 2013'), i.e. in case possession has not been taken and compensation has not been paid, are required to be fulfilled to hold that the proceedings under the land acquisition would lapse by applying Section 24(2) of the Act, 2013. It was further noted that the mode of the taking possession under the 1894 Act, and as contemplated by Section 24(2) of the Act, 2013, is by drawing of inquest report/memorandum/ possession memo. Once award has been passed, on taking possession under Section 16 of the 1894 Act, the land vests with the State and there is no divesting provided under Section 24(2) of the Act, 2013, thus, once possession has been taken, there is no lapse under Section 24(2) of the Act.
In view of the said legal principles laid down by the Apex Court and the admitted fact of the matter that the award for the land-in-question had been made on 27.03.2006, the contention of the petitioners that the proceedings stood lapsed by virtue of Section 24(2), is liable to be turned down. There is no substance in the contention of the learned counsel for the petitioners that the petitioners are still in physical possession of the land-in-question, inasmuch as, with the preparation of the possession memo, the lands-in-question vested with the State Government. The possession of the petitioners over the land-in-question, if any, is only of an unauthorised occupants, or a tenure holder who cannot resist dispossession on any ground. The fact that the petitioners are running a shop over the lands-in-question would be of no relevance, inasmuch as, the occupation of the tenure holders over the acquired lands are only that of an occupant of the Government land, after vesting is complete under Section 16 of the Act, 1894.
The petitioners, therefore, cannot resist the action of the respondent, if any, to dispossess them from the lands-in-question.
For the aforesaid fact, no merit is found in the writ petition and the same is, accordingly, dismissed.
Order Date :- 31.3.2023/P Kesari
