Allahabad High Court
Gopal And 8 Others vs State Of Up And 3 Others on 21 November, 2024
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:182311-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
*****
(Sl.No. 67)
Court No. - 21
Case :- WRIT - C No. - 35858 of 2024
Petitioner :- Gopal And 8 Others
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Rajeev Giri
Counsel for Respondent :- C.S.C.,Nipun Singh
Hon'ble Manoj Kumar Gupta,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Shri Rajeev Giri, learned counsel for the petitioners, Shri Naman Agarwal, Advocate holding brief of Shri Nipun Singh, learned counsel for Avas Evam Vikas Parishad and Shri Rajiv Gupta, learned Additional Chief Standing Counsel appearing for State-respondents.
2. The petitioners have assailed an award dated 05.07.2024, passed by Additional District Magistrate (Land Acquisition) Joint Organization, U.P. Awas Evam Vikas Parishad, Mathua to the extent it relates to Gata no. 159M having area 0.6920 hectares, situated at village Alhepur, Chhatikara, Sadar, District-Mathura, and for a further direction to recompute the compensation in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act, 2013'), by treating the reference date as 1.1.2014.
3. Indisputably, the aforesaid land of the petitioner was subjected to acquisition under the provisions of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as 'the Adhiniyam').
4. The notification under Section 28 of the Adhiniyam was issued on 28.10.2006, followed by notification under Section 32 on 21.08.2010. The award for the subject land came to be made on 05.07.2024, after almost 18 years of the issuance of notification under Section 28 of the Act.
5. The award has been challenged on the ground that after the enforcement of the Act, 2013, the beneficial provisions hereunder relating to computation of the compensation amount, would apply also to acquisitions made under the Adhiniyam. It is urged that in the instant case, the compensation amount has been calculated with reference to the date of notification under Section 28 of the Adhiniyam, whereas, it should have been 1.1.2014 (the date of commencement of the Act, 2013). In support of the said contention, learned counsel for the petitioner has placed reliance on a judgment of this Court dated 20.5.2024 in Writ - C No. 12796 of 2024 (Hem Chandra vs. State of U.P. and 3 others). In the said case, this Court has held that in respect of the acquisitions made under the Adhiniyam where the award had not been declared until the commencement of the new Act, they would be governed by the provisions of the new Act. Consequently, the reference date for determining the rate of compensation would be 1.1.2014, i.e. the date of enforcement of the new Act. For arriving at the said conclusion, reliance has been placed on the judgment of Supreme Court in U.P. Avas Evam Vikas Parishad vs. Chandra Shekhar and others (Civil Appeal No. 3855 of 2024, arising out of SLP (C) No. 779 of 2016, decided on 5.3.2024)1; Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation vs. Mahesh and others2 and Larger Bench judgment of Supreme Court in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and Another3. The relevant discussion is extracted below:-
"19. A combined reading of Section 114 of the New Act along with Section 6 of the General Clauses Act 1897 would establish beyond doubt that the repeal of Land Acquisition Act, 1894 would not affect any right, privilege, obligation or liability acquired, accrued or incurred under the said enactment, consequent to its repeal. Thus, the acquisition made by U.P. Avas Evam Vikas Parishad in the instant case would not lapse but, at the same time, the right of the petitioner to receive compensation also gets saved.
20. Under the New Act, undoubtedly, the rate of compensation is much higher as compared to LA Act. Thus, while repealing LA Act, the New Act, by virtue of Section 24(1)(a) mandates determination of compensation in cases where no award has been made, as per the provisions of the New Act. Obviously, it is a balancing act of the legislature. While it saves acquisitions under the LA Act in larger interest of the community, it protects the interest of the affected persons by providing them with compensation as per the principles enshrined under the New Act.
21. In Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation v. Mahesh and others, the Supreme Court considered the issue as to whether limitation of two years prescribed under Section 11-A for making award under LA Act, 1894 would apply even after repeal of the said Act, or the twelve months period specified in Section 25 of the New Act, 2013 will apply for award made under clause (a) of Section 24(1) of LA Act, 1894? Giving a purposive interpretation, the Supreme Court ruled that in such cases, the limitation of twelve months prescribed under Section 25 of the New Act, 2013 would apply. In so holding, the Supreme Court held that notification under Section 6 of the LA Act, 1894 is to be treated at par with notification under Section 19 of the Act. Consequently, the award is to be made in such cases within twelve months from 01.01.2014, the date of commencement of New Act, 2013 if the limitation had not expired as per Section 11-A of the LA Act. We may usefully refer to the relevant extract from the said judgment-
"30. A rational approach so as to further the object and purpose of Sections 24 and 26 to 30 of the 2013 Act is required. We are conscious that Section 25 refers to publication of a notification under Section 19 as the starting point of limitation. In the context of clause (a) to Section 24(1) of the 2013 Act there would be no notification under Section 19, but declaration under Section 6 of the 1894 Act. When the declarations under Section 6 are valid as on 1-1-2014, it is necessary to give effect to the legislative intention and reckon the starting point. In the context of Section 24(1)(a) of the 2013 Act, declarations under Section 6 of the 1894 Act are no different and serve the same purpose as the declarations under Section 19 of the 2013 Act.
31. Consequently, we hold that in cases covered by clause (a) to Section 24(1) of the 2013 Act, the limitation period for passing/making of an award under Section 25 of the 2013 Act would commence from 1-1-2014, that is, the date when the 2013 Act came into force. Awards passed under clause (a) to Section 24(1) would be valid if made within twelve months from 1-1-2014. This dictum is subject to the caveat stated in paras 20 to 23* (supra) that a declaration which has lapsed in terms of Section 11-A of the 1894 Act before or on 31-12-2013 would not get revived."
22. Where the award is declared under the saving clause embodied in Section 24(1)(a) of the New Act, 2013, it has been held in several judgments of Coordinate Benches that the reference date for making the award would be 01.01.2014, the date of commencement of New Act. While coming to the said conclusion, reliance has been placed on the judgment of Supreme Court in Hori Lal vs. State of U.P. & others and D.O. letter of the State Government dated 26.10.2015 clarifying that the reference date in such cases would be 01.01.2014. In Pyare Lal and 24 others vs. Union of India and 4 others, we have taken the same view. The relevant paragraphs from the said judgment are extracted below:
"10. In Smt. Sabita Sharma (supra), a Co-ordinate Bench of this Court, after examining various earlier Division Bench judgements of this Court and most of which were upheld with the dismissal of special leave petitions filed before the Supreme Court and in one case, namely, Hori Lal vs. State of U.P. and 3 Others with dismissal of Civil Appeal No.1462 of 2019, held that the relevant date would be 01.01.2014 i.e., the date of commencement of the new Act, 2013. The judgement takes notice of Section 113 of the new Act, 2013, which empowers the Central Government to make such provisions or give such directions not inconsistent with the provisions of the new Act, 2013, as may appear to it to be necessary or expedient for removal of the difficulty. It has been held that in exercise of said power, the Central Government had issued a D.O. No.13013/01/2014-LRD(Pt) dated 26.10.2015 wherein the issue at hand was specifically answered in reference to a query raised by the Government of Maharashtra. The relevant part of the said D.O. is extracted below:
S.No.
Issues raised by the Government
of Maharashtra
Opinion of the DoLR
1.
While determining the amount of compensation under Section 27 of the RFCTLAR&R Act, 2013 of Hon'ble Supreme Court's orders are followed or cost of assets have to be separately computed in addition to cost of land?
Under Section 26 of the RFCTLAR&R Act, 2013 market value of land is determined while under section 27, value of all assets attached to the land is added to the market value to determine the amount of compensation. Thus, it is not contradictory to the Supreme Court's orders quoted in the letter of Maharashtra Government.
2.
Under Section 24(1), the reference date for calculating 12% interest should be date of preliminary notification under Land Acquisition Act, 1894.
Under section 24(1), the reference date for calculating 12% interest should be date of preliminary notification under Land Acquisition Act, 1894. Department of Land Resources agrees to this, as there is no other reference date, that can be treated as equivalent to date of SIA notification under the RFCTLAR&R Act, 2013.
3.
For calculation of market value, under Section 24(1)(a), reference date should be 01.01.2014 (commencement of RFCTLAR&R Act, 2013) or date of issuing preliminary notification under Land Acquisition Act, 1894?
The reference date for calculation of market value, under Section 24(1)(a) should be 01.01.2014 (commencement of RFCTLAR&R Act, 2013), as the Section reads "in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, 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. Under section 26 reference date is date of preliminary notification, but section 24 is a special case of application of the Act in retrospective cases, and a later date of determination of market value is suggested (i.e., 01.01.2014) with a view to ensure that the land owners/farmers/affected families get enhanced compensation under the provisions of the RFCTLAR&R Act, 2013 (as also recommended by Standing Committee in its 31st report).
11. The Division Bench, thereafter, concluded as follows:
"From a perusal of the D.O. letter dated 26th October, 2015, issued by the concerned Ministry of the Central Government forwarded to the Principal Secretary of the State of U.P., for information and necessary action, it is evident that the said direction was made in order to remove difficulty arose in giving effect to the provisions of the RFCTLARR Act, 2013, in the matter of calculation of market value under Section 24(1)(a), in the land acquisition proceedings initiated under the Act, 1894. The said directions issued by the Central Government being in exercise of the power under Section 113 of the RFCTLARR Act, 2013 have statutory force and are binding on all the State Government being in view of the power conferred on the Central Government to make such provision or give such directions which are not inconsistent with the provisions of the RFCTLARR Act, 2013, for removal of any difficulty arising in giving effect to the provisions of the RFCTLARR Act, 2013."
12. It is noteworthy that when same view was taken by an earlier Division Bench in Hori Lal (supra), the matter travelled to Supreme Court and the Civil Appeal No.1462 of 2019 (Hori Lal vs. State of U.P. and Others) was dismissed by the Supreme Court repelling the contention that the relevant date would be the date on which the award was made. The view taken by the Division Bench of this Court that relevant date would be 1st of January, 2014 was thereby upheld. The relevant extract from the said judgement of the Supreme Court is as follows:
"20. We, therefore, find no good ground to accept the submission of the learned counsel for the appellant when he contended that the date for determining the compensation should be the date on which the Land Acquisition Officer passed the award. This argument does not have any basis and is, therefore, not acceptable for the simple reason that such date is not provided either in the old Act, 1894 or in the Act, 2013.
21. Indeed, how the compensation is required to be determined and with reference to what date, is provided under the Act and admittedly the date suggested by the learned counsel is not the date prescribed either in the old Act or the new Act. This submission has, therefore, no merit and deserves to be rejected. It is accordingly rejected.
22. We, therefore, find no good ground to take a different view than what was taken by the High Court in the impugned order"
13. In view of the above discussion, we are of the opinion that the issue is no more res integra. The relevant date for determining the compensation in respect of acquisition initiated under the old Act but where award could not be made by the time the new Act, 2013 came into force, would be 1st of January, 2014 i.e., the date of commencement of the new Act, 2013."
23. In the instant case, admittedly, the notification under Section 32 of the Adhiniyam, which is at par with Section 6 notification under LA Act, was made on 07.07.1982. However, award was not made for almost 42 years. This became possible because the timelines under the Amending Act are held to be inapplicable. Now, should the Parishad continue to delay the awards taking benefit of the non-applicability of the timelines and at the same time, also not pay compensation according to the New Act?
24. This controversy has now been settled by the Supreme Court in Chandra Shekhar (supra). The said case also arose out of the acquisition made under the Adhiniyam. The notification under Section 28 was issued on 17.07.2004. It also appears that the subsequent action of the Parishad was subjected to challenge and it was held that the same was not valid as proper opportunity, as contemplated under Section 5-A of the Land Acquisition Act 1894, was not given. The Supreme Court upheld the judgment of the High Court quashing the subsequent action of Parishad on the ground of non compliance of the procedure. The Supreme Court, however, held that since substantial development had already taken place, therefore, it would not be proper to quash the acquisition but the land holder should be substantially compensated. It specifically considered the impact of Section 55 of Adhiniyam and held that the New Act shall be deemed to be read in place of Old Act, 1894 on the ground that the acquisition had not attained finality before 01.01.2014. The relevant observations in this regard are as follows:-
"18. Having held so, the question that falls for further consideration is as to what should be the future course of action for the appellant-Board, so that neither the public interest to utilize the subject-land for the Scheme that has been substantially developed is frustrated nor the true tenure holders are deprived of the adequate compensation for their land. It may be seen from Section 55 of the 1965 Act that the compensation for the acquired land was required to be assessed in accordance with the provisions of the Land Acquisition Act 1894, which stood repealed w.e.f. 01.01.2014 by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "the 2013 Act"). Section 55 of the 1965 Act cannot be given effect unless it is declared by way of a deeming fiction that instead of 1894 Act which now stands repealed, the compensation shall be assessed in accordance with the provisions of the 2013 Act. We hold accordingly. Since the acquisition could not attain finality before 01.01.2014, we are of the considered opinion that the Acquiring Authority/Board are obligated to pay compensation to the ex-propriated owners, as is to be assessed in accordance with Section 24(1) of the 2013 Act.
19. Consequently, we hold that the tenure-holders/owners of Khasra No.673, which was still under the acquisition process when 2013 Act came into force, shall be entitled to be paid compensation in accordance with Section 24(1) of the 2013 Act."
25. The Supreme Court, at the same time, did not make applicable the procedure relating to carrying out of Social Impact Assessment Study under the New Act and only determination of compensation was directed to be made as per the New Act.
26. In the instant case also, admittedly, the acquisition proceedings were not finalized before 01.01.2014 as no award was declared by the Parishad by that time. The award has been declared, as noted above, on 27.02.2024 and, therefore, in our opinion, the Competent Authority should have determined compensation as per the provisions of the New Act, 2013 by treating the reference date as 01.01.2014, i.e. the date of enforcement of the New Act as emerges from combined reading of Chandra Shekhar (supra) and EE, Gosikhurd Project (supra).
27. In Jainul Islam (supra), the Larger Bench of Supreme Court has held that the beneficial provisions of the Amending Act, 1984 relating to determination of compensation would apply to the acquisitions made under the Adhiniyam to save it from arbitrariness and discrimination. As the Act, 1894, as amended from time to time, stands replaced by the New Act, 2013, we are of the considered opinion that the affected persons would be entitled to compensation as per the New Act, 2013, again to save Section 55 of the Adhiniyam from being rendered unconstitutional on the touchstone of Article 14 of the Constitution."
6. Learned counsel appearing on behalf of U.P. Avas Evam Vikas Parishad, very fairly concedes that the said issue is concluded by the aforesaid judgment.
7. In view of the above, the writ petition is allowed.
8. The award dated 05.07.2024 is quashed to the extent it relates to the land of the petitioners bearing Gata no. 159M having area 0.6920 hectares situated at village Alhepur, Chhatikara, Sadar, District-Mathura. The Land Acquisition Officer is directed to make a fresh award in light of the law laid down in Hem Chandra (supra).
Order Date :- 21.11.2024
Kirti
(Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.)
