Bombay High Court
Arun Shriram Patil And Others vs The State Of Maharashtra Through ... on 16 January, 2023
Bench: Mangesh S. Patil, S. G. Chapalgaonkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7873 OF 2022
Arun Sitaram Patil and others
Versus
The State of Maharashtra and others.
...
Mr. Vijay B. Patil, Advocate for the petitioners.
Mr. Siddharth B. Yawalkar,AGP for respondent Nos. 1 and 2
Mr. Ajay D. Pawar, Advocate for respondent No.3
...
CORAM : MANGESH S. PATIL
& S.G. CHAPALGAONKAR, JJ.
RESERVED ON : JANUARY 4, 2023.
PRONOUNCED ON : JANUARY 16, 2023.
ORDER [ S.G. CHAPALGAONKAR,J ] :-
The petitioners have approached this Court under Article
226 of the Constitution of India seeking issuance of writ in terms of
prayer clauses (B) and (C) which read thus :-
" (B) By appropriate writ, order or direction in the like nature of
writ, may please kindly be direct the respondents to determine
and to pay the amount of compensation to the
petitioners/claimants in respect of their acquired land in
accordance with the provisions of Right to Fair compensation and
Transparency in Land Acquisition Rehabilitation and Re-
settlement Act 2013, as per the award in SR No.37/2001 under
section 11 of the Land Acquisition Act dated 29.11.2013 and for
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that purposes appropriate orders may kindly bé passed in favour
of petitioners.
(C). By appropriate writ, order or direction in the like
nature of writ, may please kindly be transfer the references of the
petitioners u/s 18 of the Land Acquisition Act filed and pending
before the court of Civil Judge Senior Division Dhule as stated in
EXHIBIT-D to the Authority constituted u/s 51 as references u/s
64 of Right to Fair compensation and Transparency in Land
Acquisition/ Rehabilitation and Re-settlement Act 2013 and for
that purposes appropriate orders may kindly be passed in favour
of petitioners.
2. The petitioners are agriculturists and they were holding
respective lands at village Ghodasgaon, Tq. Shirpur, Dist. Dhule. The
respondent No.3 had initiated acquisition proceedings in SR/37 of 2001
for Nimna Tapi Prakalpa, Padalse Dam. The notification under Section 4
of the Land Acquisition Act, 1894 (hereinafter referred to as the "old
Act") was published on 18.4.2010, which was followed by notification
dated 4.7.2011 under Section 6 of the old Act. The award dated
29.11.2013 came to be passed under Section 11A of the old Act.
However, till commencement of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act,
2013, (Hereinafter referred to the as the "New Act") neither possession of
lands was taken nor was compensation parted in favour of the
petitioners.
3. In the year 2017, notices under Section 12(2) of the old Act
were issued in purusnace to award passed by the respondent No.2. The
possession of the lands under acquisition was taken and compensation
amount came to be disbursed as per the award passed by the Special
Land Acquisition Officer/Deputy Collector, Dhule.
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4. Mr. Vijay B. Patil, learned counsel appearing on behalf of the
petitioners would submit that though the award under section 11 of the
old Act was passed on 29.11.2013, the possession of the lands continued
with the petitioners. Notices under Section 12(2) of the old Act were
issued in the year 2017 and possession was taken by the respondents. He
would submit that in view of Section 24(1)(b) of the New Act,
proceedings under the old Act would continue, however, petitioners
would be entitled to the compensation as per the provisions of the new
Act.
5. He would further submit that since the compensation was
deposited in the year 2017 followed by delivery of possession, the proviso
to Section 24(2) of the new Act would apply and the petitioners would
be entitled to compensation in accordance with the provisions of the new
Act.
6. Mr. Siddharth Yawalkar, learned Additional Government
Pleader appearing on behalf of respondent Nos. 1 and 2 would submit
that the award under section 11 of the old Act has been passed on
29.11.2013 . Therefore, the proceeding would be governed by the old
Act, as if the Act has not been repealed. He would rely upon sub-clause
(b) of Section 24(1) of the new Act to contend that neither there is
lapsing of award nor are the petitioners entitled to compensation under
the new Act.
7. Mr. Ajay Pawar, learned counsel for respondent No.6 would
submit that in the facts of the present case, the proceeding would
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continue under the old Act as the Award under Section 11 has been
passed on 29.11.2013. As per the requisition of the respondent No.2,
compensation amount has been deposited in terms of the award. The
petitioners have received the compensation amount and they have filed
proceeding under Section 18 of the old Act, seeking enhancement of
compensation. The petitioners having accepted the award under the old
Act, they are not entitled to claim compensation under the new Act. To
buttress his contention, he relies upon the judgment of the Honourable
Supreme Court of India in the matter of Indore Development Authority
Vs. Manoharlal and others reported in (2020) 8 SCC 129.
8. We have heard the rival submissions put forth on behalf of
the parties. The petitioners were owners of the land which are acquired
for the "Nimna Tapti Project, Padalse Dam". The proceeding for
acquisition of the land was initiated on 18.11.2004 by issuing notification
under Section 4 of the old Act. The award under Section 11 of the old Act
was passed on 29.11.2013. Notices under Section 12(2) of the old Act
were issued in the year 2017. The petitioners have parted with
possession of their land after receipt of notices under Section 12(2) of
the old Act. They have also received the compensation amount in terms
of notices under Section 12(2) of the old Act.
9. There is no controversy as regards the factual aspects of the
matter. The only question that is posed for our consideration is regarding
applicability of proviso appended to sub-Section (2) of Section 24 of the
new Act. The only contention that has been advanced on behalf of the
petitioners is that they are entitled to compensation as per the new Act
since till the date of commencement of the new Act, i.e. 1.1.2014, the
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possession of the land continued with them and compensation was also
paid to them in the year 2017 in terms of the award under Section 11 of
the old Act.
10. Section 24 of the new Act reads as under :-
"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."
11. The plain reading of aforesaid provision would show that
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where the award under Section 11 of the old Act has been passed, prior
to commencement of the new Act, the acquisition proceedings would
continue to be governed by the old Act, as if that Act has not been
repealed. It is, therefore, evident that there is no lapsing of reservation in
the facts of the present case, since the award under Section 11 was
passed on 29.11.2013.
12. Sub-Section (2) of Section 24 provides that where award
under Section 11 has been made five years or more prior to the
commencement of the new Act, but the physical possession of the land
has not been taken, or compensation has not been paid, the proceeding
would be deemed to have lapsed and the appropriate Government, if it
so chooses, shall initiate proceeding of such land acquisition afresh in
accordance with the provisions of the new Act.
13. The proviso appended to sub-clause (2) of Section 24 puts
an exception to the effect that if the compensation is not deposited in
respect of majority of land holdings in the accounts of the beneficiaries,
then the beneficiaries would be entitled to compensation in accordance
with the provisions of the new Act.
14. In our considered view, sub-section (2) of Section 24 of the
new Act or proviso, as indicated above, has no application in the facts of
the present case. It is an admitted fact that the award under Section 11
was passed during the window period of five years. Sub-section (2) of
Section 24 has application only when the award under old Act has been
passed five years or more prior to the commencement of the new Act i.e.
01.01.2014. In that view of the matter, the claim of the petitioners that
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they are entitled to compensation as per the new Act, cannot be
accepted.
15. We are guided by the observations of the Supreme Court of
India, in the matter of Indore Development Authority Vs. Manoharlal and
others (cited supra) which clarified the position emerging from lapsing
provisions under the new Act. The relevant observations of the apex
Court in para.189 and 190 of the judgment are as under :-
"Section 24(1)(a) operates where no award is made in a
pending acquisition proceeding; in such event all
provisions of the new Act relating to determination of
compensation would apply. Section 24 (1) (b) logically
continues with the second situation, i.e. where the award
has been passed, and states that in such event,
proceedings would continue under the Act of 1894.
Section 24 (2) - by way of an exception, states that
where an award is made but requisite steps have not
been taken for five years or more to take possession nor
compensation has been paid then there is lapse of
acquisition. If one of the steps has been taken, then the
proviso can operate. Time is the essence. It is on the
basis of time-lag that the lapse is provided and in default
of payment for five years as provided on failure to
deposit higher compensation is to be paid. It is hased on
that time-lag higher compensation has to follow. It is not
the mere use of colon under section 24(2) but the
placement of the proviso next to Section 24 (2) and not
below Section 24(1) Thus, it is not permissible to alter a
placement of proviso more so when it is fully in
consonance with the provisions of section 24(2). Section
24(2) completely obliterates the old regime to the effect
of its field of operation. Under section 24(1)(a), there is
a partial lapse of the old regime because all proceedings,
till the stage of award are preserved. The award, in such
proceedings, made after coming into force of the Act of
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2013 has to take into account its provisions, for
determination of compensation. Thus, proceedings upto
the stage of the award are deemed final under the old
Act. In the case under section 24(1)(b), the old regime
prevails. The proviso is an exception to section 24(2) and
in part the new regime for payment of higher
compensation in case of default for 5 years or more after
award.
In re: Proviso to be read as part of provision it is
appended
190. A proviso has to be construed as a part of the clause
to which it is appended. A proviso is added to a principal
provision to which it is attached. It does not enlarge the
enactment. In Case the provision is repugnant to the
enacting part, the proviso cannot prevail. Though in
absolute terms of a later Act."
16. Applying the aforesaid principles enunciated by the
Honourable apex Court, the case of the petitioners that they are entitled
to compensation as per the new Act cannot be approved.
17. The writ petition being sans merit is dismissed.
[S.G. CHAPALGAONKAR] [MANGESH S. PATIL]
JUDGE. JUDGE.
grt/-
