Calcutta High Court (Appellete Side)
State Of West Bengal vs Anup Kumar Mondal & Anr on 22 December, 2022
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Rai Chattopadhyay
MAT No.607 of 2022
With
CAN No.1 of 2022
With
CAN No. 2 of 2022
State of West Bengal
Versus
Anup Kumar Mondal & Anr.
For the Appellants : Mr. Supratim Dhar,
Mr. D.Nayak,
For the Petitioners/respondents : Mr. Amit Kr. Pan,
Mrs. T.Santra.
Hearing concluded on : 10/08/2022
Judgment on: 22/12/2022
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Rai Chattopadhyay, J. :
(1) The respondents/writ petitioners' challenge in this appeal is twofold,
predominantly that the Ld. First Court should not have directed the State
to consider afresh any proposal of 'direct purchase' of their land as there
is no scope for it to do so having the land acquisition case now been ended
into declaration of award and elementarily that the compensation assessed
and the notice of payment of compensation issued by the State on 8th
February, 2016, is wholly erroneous and liable to be set aside, having not
taken into its fold the provisions of section 25 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 ( 2013 Act).
(2) The appeal has however, been preferred by the State, challenging the order
of Ld. First Court dated 7th October, 2021. Let us first go through the
impugned order.
(3) The Court records the writ petitioners/respondents' case to have arisen out
of their grievance that the State Authorities acquired and utilized the plot
of land owned by them for the purpose of construction of a road but no
compensation for the same has been granted to the petitioners. A
notification is referred to, i.e, Notification No.756-I.P/IA-03/14(Pt-II)
dated 25th February, 2016. Court records that in view of the said
notification, the writ petitioners/respondents are agreeable to the proposal
of the State for 'direct purchase' of the land, in terms of the said
notification.
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(4) Court further records and directs the State Authority to deal with the
matter and consider the proposal for direct purchase of the land of the writ
petitioners, utilized for the purpose of construction of road in terms of the
said notification. It has further been directed that the entire exercise
should be completed within four months from the date of communication
of the order and after affording reasonable opportunity of hearing to all the
affected parties including the writ petitioners, in accordance with law.
(5) With this order the writ petition was disposed of, without, however,
inviting any affidavits.
(6) For better understanding of the issue, let the said notification be produced
hereinbellow :
GOVERNMENT OF WEST BENGAL
Land and Land Reforms Department
Land Policy Branch
NABANNA (6th Floor)
325, SaratChatterjee Road, Howrah-711 102.
No. 756-LP/1A-03/14(Pt-II) Date: 25.02.2016
MEMORANDUM
It has been observed that often important infrastructure projects like food godowns, roads, bridges etc. are not fully
commissioned for want of small parcels of land. To ensure the optimal utilization of public funds and early implementation of
such projects, direct land purchase from land owners may become necessary.
2. The State Government has considered the immediate need of land for such projects.
3. Now, therefore, the Governor is hereby pleased to allow the various departments of the State Government and also the
Central Government department(s) or its organization(s) based on merit of its project to go in for the direct purchase of land for
public purpose mainly involving the early commissioning of infrastructure projects like roads, railways, bridges, food godowns,
drinking water, flood protection works and other similar projects, as the Government may consider, in rural and/or urban areas
through ZillaParishad/Municipality/Municipal Corporation/ other Government bodies and parastatals, as the case may be, by
adopting the following procedures :
(i) (a) The administrative department(s) will take concurrence of the Standing Committee on Industry, Infrastructure &
Employment before going ahead with the purchase of land indicating its tentative location, quantum and financial involvement.
In terms of Finance Department Memorandum No. 862-FB Dated 14/10/2015, the administrative department shall get the
proposal vetted by the Finance Department before placing it for Cabinet approval.
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(b) The Central Government department or its organization i.e. the Requiring Body will take prior approval/ concurrence of the
competent authority which shall be the concerned Ministry of the Government of India. The relevant department in the State
Government looking after the affairs of the concerned Requiring Body shall seek concurrence of the Standing Committee on
Industry, Infrastructure and Employment prior to moving the proposal before the Purchase Committee. A representative of the
RB shall be a member of the Purchase Committee.
(ii) A 15-day local notice mentioning preference and details of land intended for purchase shall be given in the public offices and
local newspaper(s) informing the prospective land owners and requesting them to submit application in plain paper indicating
their intention to sell their lands.
(iii) The department concerned will select the appropriate plot(s) of the land to be purchased as per suitability and other
considerations from among the applications/offers received on the basis of the notice.
(iv) The relevant administrative department will undertake land searching through the panel advocate(s) at the respective sub-
registry office to guard against fraudulent transfer. Besides, the BL & LRO will verify the right and title of the selected lands
within 14 days and shall furnish report in the enclosed format to the Purchase Committee.
(v) Land would be purchased through the ZillaParishad/Municipality/Municipal Corporation/ Parastatal as may be decided by
the administrative department(s).
(vi) Funds will be allotted to the ZillaParishad/Municipality/ Municipal Corporation/Parastatal by the administrative department
for payment to land owners and payment will be made to their bank accounts. An appropriate administrative cost will be given
to ZillaParishad/Corporation by the administrative department
(vii) A committee of the following officials will finalize the price of land for the purchasing department:
a) District Magistrate of the district - Chairperson
b) DL & LRO - Member
c) Special LAO - Member
d) Two members from the concerned PanchayatSamity to be nominated by the Chairperson - Members
e) FC & CAO, ZillaParishad - Member
f) Representative of administrative department/RB - Member
g) District Registrar - Member
h) Secretary ZillaParishad - Member Secretary
In case of purchase of land for Municipal areas, the Chairman of Municipality will also be a Member of the Committee in place
of the members of PanchayatSamities as in SI. (d).
(viii) For areas under Municipal Corporations the Purchase Committee will be as follows :
a) District Magistrate - Chairperson
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b) Mayor - Member
c) Municipal Commissioner/ CEO, Corporation - Member
d) DL & LRO/1 st LA Collector - Member
e) District Registrar - Member
f) Special LAO - Member
g) Two members from Ward Councillors to be nominated by the Chairperson - Members
h) Chief Municipal Auditor, Corporation - Member
i) Representative of administrative department/RB - Member
j) Secretary, Corporation - Member Secretary
However, for purchase of land situated within the jurisdiction of Kolkata Municipal Corporation, the Secretary of the L&LR
Department will act as Chairperson of the Committee.
(ix) As regards the direct purchase of land by parasatals/ development authorities like WBIDC, WBSIDC, WBIIDC, WBSEDCL,
WBSETCL/ Asansol Durgapur Development Authority (ADDA), Burdwan Development Authority (BDA), DighaSankarpur
Development Authority (DSDA), Haldia Development Authority (HDA), SiliguriJalpaiguri Development Authority (SJDA),
SriniketanSantiniketan Development Authority (SSDA), New Town Kolkata Development Authority (NKDA) or any other such
agency that qualifies to be parastatal/ development authority as per the statute, the administrative department shall obtain
concurrence of the Standing Committee on Industry, Infrastructure and Employment as in Para 3(i)(a) and thereafter the
Parastatal/ Development Authority shall move the proposal before the Purchase Committee as in para (vii) and para (viii), as
the case may be.
(x) Value of buildings/structures, would be assessed by the Executive Engineer, PWD/Municipal Engineering Directorate/
District Engineer/Executive Engineer, ZillaParishad or by such agency as the administrative department may decide.
(xi) The base price of the land will be determined taking into account the assessed value of land or set forth value of land
whichever is higher. Incentive on the price of land finally determined will be given to the land owner if land registration is done:
(a) within 30 days - 50% (b) within 31 to 60 days - 10%, from the date of publication/ communication of land price to the
landowners. For this purpose, individual land owner will be informed of the price of land in writing by the Member-Secretary of
the Land Purchase Committee, for registration of sale deed.
(xii) After the purchase of land from the land owners, land will be registered in the name of ZillaParishad/ Municipality/Municipal
Corporation/ Parastatal. Thereafter, ZillaParishad/Municipality/ Municipal Corporation/ Parastatal, as the case may be, could
formally transfer the land in favour of administrative department(s).
(xiii) Care would be taken by the ZillaParishad/ Municipality/Municipal Corporation/Parastatal to ensure that the entire
transaction is fair and transparent and it is based on mutual consent. There shall be no element of coercion.
(xiv) Stamp duty shall be exempted for such purchase of land by ZillaParishad/ Municipality/ Municipal Corporation/ Parastatal
and also for subsequent transfer to administrative department(s).
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(xv) The Panchayat and Rural Development Department will issue direction upon all the ZillaParishads concerned to purchase
land for other department(s) u/s. 212 of the West Bengal Panchayat Act, 1973.
(xvi) The Municipal Affairs Department will issue direction upon all the Urban Local Bodies to purchase land for other
department(s) u/s. 429B of the West Bengal Municipal Act, 1993.
(xvii) In case, the aforesaid Purchase Committee fails to perform its functions within a reasonable time, the administrative
department would be free to use any Corporation /Parastatal/ Authority under its control to purchase the land on the same
terms & conditions as prescribed above.
This has the concurrence of the Finance Department vide U.O. No. Group T/2015-2016/ 0822, dated 14.01.2016.
This memorandum is issued in partial modification of the memorandum No. 3145-LP/1A-03/1 dated 24/11/2014 & Notification
No. 971-LP/1A-03/14 dated 01/07/2015 and also in cancellation of Memorandum No. 3580-LP dated 31/12/2014.
By order of the Governor,
Sd/- MANOJ PANT
L.R.C. & Principal Secretary to the Govt. of West Bengal.
(7) It appears that a special arrangement was made by dint of the said
notification, to eliminate the unnecessary time lag intervening in any
project of public good, in order to comply with the formalities and
procedure of law for acquisition of land.
(8) Be that as it may, Ld. First Court accepted the writ petitioners' case, that
an arrangement can be resorted to as provided in the said notification and
issued directions vide the impugned order dated 7th October, 2021.
(9) An unique feature of this appeal is that, both the parties are virtually
aggrieved with the said impugned order. The facts of the case may be
recounted, as mentioned herein below.
(10) Issue arose in 1979, when the appellant/State issued notice under section
3(1) of Act-II of 1948, in respect of 6.855 acres of land, comprised within
three mouzas, namely (i) Ganti, (ii) Chikanpara and (iii) Simulpur. This
notice was dated 6th June, 1979. Purpose for issuance of such notice was
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construction of Chandpara-Thakurnagar road, as per proposal of State
Highway Planning Circle (P.W.Roads).
(11) It would be beneficial if we reproduce section 3(1) of the West Bengal Land
(Requisition and Acquisition) Act, 1948, i.e, Act-II of 1948, which is as
follows :
3. Power to requisition :-
(1) If the State Government is of the opinion that it is necessary so to
do for maintaining suppliesand services essential to the life of the
community or for increasing employment opportunities for the
people by establishing commercial estates and industrial estates in
different areas or for providing proper facilities for transport,
communication, irrigation or drainage, or for the creation of better
living conditions in rural or urban areas, not being an industrial or
other area excluded by the State Government by a notification in this
behalf, by the construction or reconstruction of dwelling places in
such areas or for purposes connected therewith or incidental
thereto, the State Government may, by order in writing, requisition
any land and may- make such further orders as appear to it to be
necessary or expedient in connection with the - requisitioning :
Provided that no land used for the purpose for religious worship,
used by an educational or charitable institution shall be
requisitioned under this section.
(12) Pertinent also to mention here the object of the said Act-II of 1948, as
mentioned therein, which is as follows:
"An Act to provide for requisition and speedy acquisition of land for
certain purposes. WHEREAS it is expedient to provide for the
requisition and speedy acquisition of land for the purposes of
maintaining supplies and services essential to the life of the
community, increasing employment opportunities for the people by
establishing commercial estates and industrial estates in different
areas, providing proper facilities for transport, communication,
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irrigation or drainage and creating better living conditions in urban
or rural areas by the construction or reconstruction of dwelling
places in such areas or for puposes connected therewith and
incidental thereto; It is hereby enacted as follows"
(13) Section 4 of the said Act bestows power to the State Government to use or
deal with the land requisitioned under section 3, for the specified purposes
and also to acquire the same by publishing a notice in official gazette,
which would result in absolute vesting of the land in the State from the
date of publication of the notice. Therefore the said Act provided for
separate procedure and mechanism for requisition and acquisition of land.
(14) Now coming back to the facts of the present case, the appellant states that
the land acquisition case No. LA/II/08 of 1979-80 under the Act -II of
1948, in respect of the above named mouzas did not proceed further for
non placement of funds and the proceedings lapsed.
(15) According to the writ petitioners/respondents, case No. LA/II/08 of 1979-
80 under the Act -II of 1948, in respect of the above named mouzas, was
only a requisition proceeding, which subsequently did not proceed and
lapsed.
(16) However the purpose for which the said proceeding was started, i.e,
construction of Chandpara-Thakurnagar road, was materialized and
construction of road was completed. In doing so, certain amount of land
comprised within the above named three mouzas had also been utilized.
(17) Consequently some land owners filed a writ petition in the High Court
being W.P.No. 9300(W) of 2011 praying for compensation for the utilized
land within mouzas Ghanti and Chikanpara. The same was disposed of on
30th June, 2011, with the directions that the appropriate authority was to
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complete the proceedings, pass an award and disburse the compensation
in accordance with law, within a period of one year from the date of
furnishing a photocopy of the certified copy of the said order.
(18) Pertinent to mention that said Act-II of 1948 remained in force until 31st
day of March, 1997.
(19) After this Court's order dated 30th June, 2011 and in compliance thereof,
three separate land acquisition proceedings under Act-I of 1894 were
initiated being LA cases No. (i) 4/5 of 2013-14, (ii) 4/6 of 2013-14 and (iii)
4/7 of 2013-14, for mouzas Simulpur, Ghanti and Chikanpara respectively.
Notification under section 4 of 1894 Act, i.e, preliminary notification was
published on 4th December, 2013 and declaration under section 6 of the
same, i.e, declaration that the land is required for a public purpose, was
published on 16th April, 2014.
(20) Before that, the Act of 1894 was repealed with the coming into force of the
'Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013', with effect from 1st January,
2014. Hence, in this case section 4 notification was published before
coming into force of 2013 Act and section 6 notification was after the 2013
Act came into force.
(21) The appellant states that, in view of sections 114 and 24 of the 2013 Act,
assessment of compensation has been made under sections 26 to 30 read
with 1st schedule of the said Act of 2013 and an award was declared in the
case on 28th April, 2016.
(22) The appellant further states that soon after declaration of award, notice
was issued to the writ petitioners/respondents to accept the compensation
as assessed, which they did not respond to and did not accept the
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compensation. Therefore, according to the appellant, the assessment
proceedings has been completed in 2016, with publication of award on 28th
April, 2016. It is its further contention that in such a circumstance, there
would be no scope for the scheme under the notification dated 25th
February 2016, for 'direct purchase' of the land to be applicable in this
case. That, after completion of the proceedings and assessment of
compensation, direct purchase of the same property is only an illusory
concept and non-est in the eye of law as by operation of law the concerned
land has already been vested with the State.
(23) It is stated that the respondents/writ petitioners are at liberty to claim
their compensation, as assessed.
(24) It is reiterated that the writ petitioners/respondent's first contention is
that the proceedings undertaken by the State in the year 1979, under the
1948 Act has been a 'requisition' proceeding under section 3 of the said Act
(since repealed). They further state that the said proceeding for requisition
of land under 1948 Act has never been converted to one under the 1894
Act, after repeal of the 1948 Act, for the purposes of acquisition of land in
question to be followed by declaration of award. They have admitted lapse
of 1979 proceedings under the 1948 Act. According to them, the acquisition
proceedings started for the first time only in the year 2013-14, under
provisions of Act-I of 1894. They say that award was not made under
section 11 of 1894 Act, on the date the said Act stood repealed and 2013 Act
came into being, i.e, 1st January, 2014. Therefore in their case, the
provisions under section 24(1)(a) of the Act of 2013 should apply, the date
for the purpose of determination of compensation should be reckoned to
the date of coming into force of the 2013 Act, i.e, 1st January, 2014 and that
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in their case compensation should be determined in accordance with the
provisions of 2013 Act.
(25) Mr. Dhar, for the appellant/State is very precise and candid in arguing that
LA Case No. 4/5 of 2013-14, which pertains to Simulpur mouza and
concerns the present writ petitioners/respondents, has ended in
publication of an award under section 11 of the 1894 Act and in due
compliance with the statutory provision, compensation therein has been
assessed under the provisions of the 2013 Act. He argues that payment
notice has already been issued to the land losers under section 12(2) of the
1894 Act, read with section 24 of the 2013 Act, back on 8th December,
2016. He says that writ petitioners have not yet claimed the same, though
the State is now ready to pay after due compliance with all the formalities
and in accordance with law. Appellant has relied on an "unreported'
judgment of three Judge's Bench of the Hon'ble Apex Court, decided
on 28th July, 2022, i.e, Haryana State Industrial and Infrustructure
Development Corporation Limited and Others vs Mr. Deepak
Aggarwal and Others.
(26) Mr.Pan, on behalf of the writ petitioners/respondents has relied on a
judgment of Hon'ble Apex Court reported in (2022) 2 SCC 772 [Executive
Engineer, Gisikhurd Project Ambadi, Bhandara, Maharashtra
Vidarbha Irrigation Development Corporation vs Mahesh and
Others].
(27) For better understanding of the matter and before discussing the ratio of
the judicial pronouncements relied on by the parties, let the arguments
made on behalf of the writ petitioners/respondents be discussed at the
outset.
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(28) It is Mr. Pan's first contention that in the instant case, land of the writ
petitioners/ respondents has never been acquired either under the 1948
Act or under the Act of 1894, during their respective lifetimes. He states
that it is the condition precedent that before declaration of the 'award' the
land ought to have been acquired in order to vest the same with the State.
He states that the only step taken by the State/appellant is that of issuance
of a notification with respect to the land under section 3(1) of Act-II, 1948,
on 6th June, 1979 and thereafter, after operation of the 1948 Act came to an
end with effect from 31st March 1997, by issuing a notification under
section 4(1)(a) of the Act of 1894, on 4th December, 2013. According to
him, this 2013 notification is an intention of the State for acquisition and
the same shall not have the effect of vesting of the land unto the State.
(29) He contends that at this stage, the Act of 1894 was repealed with effect
from 1st January, 2014. Though he accepts that a notification has also been
published under section 6 of 1894 Act, with respect to the land of the
respondents on 16th April, 2014, but says that the same is non-est in the
eye of law, as the Act of 1894 has already been repealed much before that
date. He says that in the particular facts and circumstances of this case, not
only the publication under section 6 of 1894 Act but any other provisions
of the said Act cannot be taken into consideration for the purpose of
declaration of the 'award'. He says that after coming into force of the 2013
Act, as per section 114 of the same, provisions of the Act of 1894 is saved to
the extent that do not hinder application of provisions of section 24 of the
new Act. He argues that as regards determination of compensation, the
provisions of the new Act from section 25 to section 30 would be
applicable.
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(30) He points out that the repeal date of the Act of 1894, i.e, 1st January, 2014,
is also the date of promulgation and coming into force of the Act of 2013,
as mentioned above. Hence with effect from 1st January, 2014, the
acquisition proceedings with respect to the respondent's land, lapsed and a
fresh proceeding under the new Act reckoning from the date of its
promulgation, i.e, 1st January 2014, should have been started.
(31) It is his argument that since that date, i.e, 1st January 2014, formalities as
regards acquisition of his clients land should only be governed by the
provisions of the Act of 2013. He submits that section 24 of the Act of 2013
shall have overriding effect in view of its non-obstante clause, and thus
section 114 of the said Act as well as section 6 of the General Clauses Act,
1897 shall not apply to the extent hindered by section 24(1) of 2013 Act.
(32) As regards section 24(1) of 2013 Act, he submits that the statute would
require the State, in case of his client's land, regarding which an
acquisition proceeding was initiated under the Act of 1894 but no award
under section 11 of the said Act was made till the date of its repeal, to apply
all provisions of the 2013 Act relating to the determination of
compensation, notwithstanding anything contained in the said Act of 2013.
This provision, according to him hinders 'saving' clause, as enumerated in
section 114 of 2013 Act and also application of section 6 of the General
Clauses Act, 1897. Instead, according to him, the Collector has to
determine compensation in this case, by taking into consideration sections
25 to 30 of the 2013 Act, after compliance with the provisions of sections
19 and 21 of the same.
(33) Issuance of notification under section 6 of 1894 Act on 16th April, 2014 and
notice under section 12(2) thereof on 8th December, 2016 are, according to
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him, steps taken by the State only erroneously and illegally, as, after repeal
of the said Act with effect from 1st January, 2014. In view of the non-
obstante clause appearing in section 24 the new Act of 2013, thereby
overriding the effect of 'saving' clause appearing in section 114 of the new
Act of 2013, provisions under 1894 Act would have not been applicable any
further, after coming into force of the Act of 2013. He says that the facts
and circumstances of this case would require the State to initiate a fresh
proceeding under the new Act, after lapse of the earlier proceedings with
the repeal of the previous Act and proceed in terms of sections 25 to 30 of
the same to determine compensation, after due compliance with the other
relevant provisions of the said Act.
(34) In support Mr. Pan has relied on Mahesh's case [(2022) 2 SCC 772], as
mentioned above.
(35) In the said judgment the Hon'ble Apex Court was interpreting Section 24
(1) (a) of the 2013 Act. The question that fell for consideration of the court
was "whether the two year period specified under Section 11 (A) of the
Land Acquisition Act, 1894 ('The 1894 Act' for short), will apply even
after the repeal of the 1894 Act, or the twelve months period as
specified in Section 25 of 2013 Act will apply for the awards made
under Clause (a) of Section 24 (1) of the 2013 Act?" The Hon'ble Court
considered further as to "whether the award dated 30-10-2014 is
within the permissible time limit or whether the acquisition
proceedings have lapsed?"--- that is a question somewhat identical to
what it is in this appeal, excepting that the date of 'award' here is 28th
April, 2016.
Page 15 of 27
(36) The court went on to interpret the law in a way to give affect and meaning
to the underline intention of the legislature in the words "all the
provisions relating to determination of compensation" as occur in
Section 24 (1) (a) of the 2013 Act. It was held that the phrase as above
would include the period of limitation specified in Section 25 of the 2013
Act. The words 'relating to' were held required to be given an expansive
and wider meaning. Findings of the court may be quoted below:-
"Given this trend in interpretation, the words "all the provisions of
this court relating to the determination of compensation" must not
be imputed a restricted understanding of the word "relating" only to
the substantial provisions on calculation of compensation, i.e,
Sections 26 to 30 of the 2013 Act. Rather, the expression should be
given an expansive meaning so as to include the provision on
limitation period for calculation of compensation, i.e, Section 25 of
the 2013 Act."
.............................
"In the context of clause (a) to Section 24(1) of the 2013 Act, it is to be
stated that the said clause would apply only if the period for making
of an award had not ended and time was available as on 1-1-2014.
Where and if the period for making of the award had already lapsed
before 1-1-2014, clause (a) to Section 24(1) would not apply so as to
deprive and deny the vested rights which have already accrued in
favour of the landowners. The present case is not of divesting of
vested rights of the landowners on enactment of the 2013 Act. "
.............................
"The expression "all the provisions relating to the determination of
compensation" under the 2013 Act will encompass Section 25 of the
2013 Act."
.............................
"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."
(37) State has conceded to the fact that in this case determination of
compensation is to be made under the 2013 Act. It has relied on a written
communication dated 4th March, 2014 by LRC & ACS, Land and Land
Reforms Department, Government of West Bengal, noting therein that
L.A. Cases where Section 4 has been notified but Section 11 has not been
done, would be governed under L.A. Act, 1894, but compensation is to be
determined under the 2013 Act. This communication was made to the
Collector of the respective Districts with reference to judgment of the
Hon'ble Supreme Court dated 24th January 2014 (Pune Municipal
Corporation & Anr. Vs. Harakchand Misirimal Solanki & Ors.). It is their
contention that pursuant to the direction of the concerned department as
above, determination of compensation in this case has been made in strict
adherence to the provisions under Sections 26 to 30 of the 2013 Act.
(38) State has relied on the judgment of Deepak Aggarwal's as mentioned
above to submit that the State action in determination of compensation is
in absolute compliance with the ratio decided therein. Hence, so far as the
point of objection of the writ petitioners/ respondents as to the
determination of compensation is concerned, according to the State the
same is to be overruled in view of determination of compensation in this
case, that being in concurrence with and in due compliance with the settled
provisions of law.
(39) In Deepak Aggarwal's case a three judges bench of the Hon'ble Supreme
Court was considering and interpreting the word "initiated" employed in
Section 24 (1) of the 2013 Act, with reference to Land Acquisition
proceedings under the Land Acquisition Act, 1894. Court held that:
"A perusal of Section 24 would reveal that passing of an Award
under Section 11 of the L.A. Act is the key factor in deciding the
manner and nature of continuance of the land acquisition
proceedings. A scanning of Section 24 (1) (a) would reveal that if
land acquisition proceeding was initiated under the L.A. Act, but no
award was passed under Section 11 thereof, then, all provisions of
the 2013 Act relating to the "determination of compensation" would
apply."
..........................
"A careful scanning of all the decisions cited by both sides would
thus reveal that all those decisions hold that land acquisition
proceedings under the L.A. Act begin with the publication of a
notification under sub-section (1) of Section 4. A declaration under
Section 6 of the L.A. Act is one of the steps under the L.A. Act which
ultimately culminates into the conclusion of the proceedings by
making an Award and taking over possession of the acquired land. A
declaration under Section 6 cannot be made without holding an
inquiry unless urgency clause under Section 17 is applied.
Publication of a notification under sub-section (1) of Section 4 of the
L.A. Act is condition precedent for taking further steps. Hence, such
a notification is the starting point of acquisition proceedings under
the L.A. Act. The initiation of the proceedings is by the publication of
the notification under sub-section (1) of Section 4 of the L.A. Act."
...........................
"The legislative intention behind bringing up the 2013 Act was to
have a unified enactment facilitating land acquisition for
industrialization, infrastructure and urbanization projects in a
timely and transparent manner and at the same time, providing for
just and fair compensation, to make adequate provision for
rehabilitation and resettlement mechanism for affected persons and
their families."
...........................
"Bearing in mind the aforesaid legislative intention we will have to
construe Section 24 and also the word 'initiated' has to be construed
with a view to implement the aforesaid twin purposes of providing
fair and just compensation and facilitating acquisition of land for
industrialization, infrastructure and urbanization projects."
...........................
(40) Admittedly, the land in question has already been converted into a metal
road under the project and virtually admittedly in this case that the
impugned order dated 7th October, 2021, is not sustainable. The writ
petitioners/respondents are yet to receive compensation as they challenge
the process by which the same has been assessed and determined, whereas
the State/appellant considers that it has duly and in accordance with laws
has completed the acquisition proceedings and determined the
compensation payable, which has, however, not been claimed by the
landowners as yet.
(41) The initial round of challenge is against the impugned order. If the scheme
framed for 'direct purchase' as per the notification dated 25th February,
2016 may be applied to in this case or not - is the issue to be answered.
(42) The scheme for direct purchase of land vide memorandum dated
25.02.2016 was framed to fortify the objects for early commissing of
infrastructure projects for public purpose.
(43) The case of the present land owners would not fall within the perview of
the said notification, broadly for the following reasons: - Firstly, that the
project of public purpose, i.e, construction of - read has already been
completed, and in doing so, the state has already utilized portion of land in
Mauza-Simulpur, which concerns the present land owners. Hence, there
remains no urgency to undertake measures provided in that notification, to
expediate the project work.
(44) Next is that the steps for acquisition in this case have been taken by the
state long back, in the year 1979. Since then, under various Acts in
operation, the proceedings are said to have been continued and ultimately
ended in to an 'award'. During continuance of such proceedings, (the
veracity of which is, however challenged), project work is completed. It is
not the scheme of the notification that the same may also be applied in a
case like this. At the cost of reiteration, it may be held that the state is not
holding any stake to urgently complete any work of public purpose, for
which land may be purchased directly from the owner by passing the entire
procedure of acquisition. More so, when acquisition proceedings in this
case has already been completed and rightly or wrongly an amount of
compensation has been determind, there is no scope that the parties could
have been directed to undergo the process under the said notification
again, for assessment of the price for land.
(45) These findings shall lead to one definite conclusion, that the notification
dated 25.02.2016, would not have any manner of application, in this case.
Thus, it has been erroneous and not in accordance with law for the Ld.
First Court to direct the parties to undergo a process as enumerated under
the notification dated 25.02.2016. Though the court records that the
parties have conceded to such an arrangement, the parties are not to
proceed with the same any further.
(46) All these unfailingly conclude that the impugned order dated 7th October,
2021, is not sustainable and is liable to be set aside.
(47) This brings us to the second point put forth by the state, i.e, due
compliance with the provisions of 2013 Act in determination of
compensation, by referring to the decision of 3 Judges Bench in Deepak
Aggarwal's case.
(48) Appellant states that with the repeal of 1894 Act, the proceedings
thereafter does not lapse, though compensation has to be determined in
accordance with the new Act, i.e, Act of 2013. That the state has duly
compiled with such requirement of law to declare 'award' in this case.
(49) Respondents have raised strong objection, as dealt with herein before in
details. In short, they say that proceedings under 1894 Act has lapsed,
after the prescribed period of repeal of the same and compensation in their
case should be determined by following the procedure prescribed under
the 2013 Act including that under section 25 of the Act, as per the mandate
of law.
(50) After repeal of Act of 1894, and coming into force of 2013 Act, Section 24
(1) (a) of the new Act shall have overriding affect, as to the provisions of
the said Act, in view of its non-obstante clause. Therefore provisions of
repeal and saving under Section 114 of the Act of 2013 shall operate to the
extent it is not hindered by the provisions of Section 24 (1) (a) of the said
Act. Provisions of Section 24 (1) (a) have fallen for interpretation time and
again before the Hon'ble Apex Court, the two cases in hand are amongst
those.
(51) It is now well settled that after promulgation of 2013 Act, with regard to
the land acquisition proceedings, initiated on a date before the said Act
came into force, the date of "initiation of the proceedings" would be
rekoned to the date of publication of notice under Section 4 of the 1894
Act, i.e, 4th December, 2013, in this case. Also that publication of notice
under Section 6 of the 1894 Act, is a step in the entire acquisition
proceedings. It is also settled that 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. Admittedly in this case, the proceedings did not
conclude on the date of coming into force of the 2013 Act, i.e, 1st January,
2014. Also admittedly, a notification under Section 6 of the 1894 Act, has
been made on 16th April, 2014, that is, after promulgation of the 2013 Act.
(52) In such a case, the Hon'ble Supreme Court has been pleased to hold that
all provisions of 2013 Act relating to "determination of compensation"
would apply, including that under Section 25 of the 2013 Act. Relevant
portions of the two judgments, dealt with by the parties in this case, may
again be gone through as hereinbelow:-
Mahesh's judgment [(2022) 2 SCC 772]-
"24. Law of limitation is generally regarded as procedural as
its object is not to create any right but prescribe periods within
which legal proceedings should be instituted for enforcement of
rights or adjudication orders should be passed. Statutes of
limitation, therefore, have retrospective effect insofar as they
apply to all legal proceedings brought after they come into
force. However, the laws relating to limitation have been held
to be prospective in the sense that they do not have the effect of
reviving the right of action which is already barred on the date
of their coming into operation, nor do they have the effect of
extinguishing a right of action subsisting on the date. In this
sense, the limitation provisions can be procedural in the
context of one set of facts and substantive in the context of a
different set of facts. Therefore, unless the language of the
provision dealing with period of limitation clearly manifests, in
express terms or by necessary implication, a contrary intention
divesting vested rights, such provision is to be construed as
prospective. In the context of clause (a) to Section 24(1) of the
2013 Act, it is to be stated that the said clause would apply only
if the period for making of an award had not ended and time
was available as on 1-1-2014. Where and if the period for
making of the award had already lapsed before 1-1-2014, clause
(a) to Section 24(1) would not apply so as to deprive and deny
the vested rights which have already accrued in favour of the
landowners. The present case is not of divesting of vested rights
of the landowners on enactment of the 2013 Act.
25. Section 25 is a rule of procedure immediately following
Section 24 and a part of fasciculus of "all the provisions", from
Sections 25 to 30, "relating to determination of compensation".
Hence, the expression "all the provisions relating to the
determination of compensation" under the 2013 Act will
encompass Section 25 of the 2013 Act.
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."
Deepak Aggarwal's judgment [unreported]-
"A perusal of Section 24 would reveal that passing of an Award
under Section 11 of the L.A. Act is the key factor in deciding the
manner and nature of continuance of the land acquisition
proceedings. A scanning of Section 24 (1) (a) would reveal that
if land acquisition proceeding was initiated under the L.A. Act,
but no award was passed under Section 11 thereof, then, all
provisions of the 2013 Act relating to the "determination of
compensation" would apply."
(53) Chapter IV of the 2013 Act, enumerates about "Notification And
Acquisition" to encompass Sections 11 to 30. Section 25 thereof provides
for the "Period within which an award shall be made", which is as follows:-
"25. Period within which an award shall be made. - The
Collector shall make an award within a period of twelve
months from the date of publication of the declaration under
section 19 and if no award is made within that period, the
entire proceedings for the acquisition of the land shall lapse:
Provided that the appropriate Government shall have the
power to extend the period of twelve months if in its opinion,
circumstances exist justifying the same:
Provided further that any such decision to extend the period
shall be recorded in writing and the same shall be notified and
be uploaded on the website of the authority concerned."
(54) Therefore in compliance with the settled law, in this case, the land
acquisition proceedings being initiated on 4th December, 2013 with
publication of notice under Section 4 of the 1894 Act and having not been
concluded by declaration of an Award within the period prescribed therein
and the 2013 Act having coming into force in the midst of such
proceedings, the provisions of the 2013 Act, as regards determination of
compensation, shall apply. It is now settled well that, 'provisions as
regards determination of compensation', in 2013 Act, would entail that
under Section 25 of the 2013 Act.
(55) The fate of a proceeding which has been initiated prior to coming into
force of the 2013 Act by issuance of a notification under Section 4 of the
1894 Act has been categorically determined by the Honorable Supreme
Court in the said 3 Judges Bench decision in Deepak Aggarwal's case, in
the following manner :
"Thus, it is obvious that in case of non-passing of an award
in terms of Section 11 of the L.A. Act where the acquisition
proceedings have been initiated prior to 01.01.2014, all
provisions under the 2013 Act relating to the determination of
compensation alone would apply to such acquisition
proceedings. In other words, it would mean that in such
circumstances the land acquisition proceedings should
continue, but all the provisions relating to the determination of
compensation under the 2013 Act alone will be applicable to
such proceedings, meaning thereby, the 2013 Act would come
into play only at that stage. There can be no doubt with respect
to the position that between the initiation of land acquisition
proceedings by issuance an publication of notice under Section
4(1) of the L.A. Act and the stage at which compensation for the
acquisition calls for determination, there are various
procedures to be followed to make the acquisition in
accordance with the law. The question is when Section 24 (1) of
the 2013 Act makes it clear with necessary implication that all
provisions of the 2013 Act relating to the determination of
compensation alone would be applicable to such proceedings
initiated under the L.A. Act but, not culminated in an award,
how the procedures are to be regulated during the intervening
period till the proceedings reach the stage of determination of
compensation. There cannot be any uncertainty on that aspect.
The procedures to be undertaken and the manner in which they
are to be regulated cannot remain uncertain. They are
conducted either in the manner provided under the L.A. Act or
in the manner provided under the 2013 Act. But then, in view of
Section 24 (1) (a), the provisions relating to the determination
of compensation alone can be applied to such proceedings or in
other words, there is only a restricted application of the
provisions of the 2013 Act in relation to such proceedings. The
inevitable conclusion can only be that what is applicable to the
various procedures to be undertaken during the period up to
the stage of determination of compensation are those
prescribed under the L.A. Act. We have no doubt that without
such a construction, the provisions under Section 24 (1) (a)
would not work out, in view of the restrictive application of the
2013 Act."
It has further been held as follows:
"Certainly, it would not be in public interest to allow such
proceedings to lapse or allow the authorities to follow the
procedures during such period according to their sweet will. A
uniform procedure has to be followed in respect of such
proceedings. The acquisitions initiated for public purposes
should go on in a fair and transparent manner with a view to
achieve the intent and purport of the 2013 Act and at the same
time, the persons affected shall have definite idea about the
manner in which procedures would be conducted. The Party 'B'
would not be justified in describing such situations of necessity
and the consequential application of provisions which are
actually saved on account of the construction of Section 24 as
an attempt to bring the words expressly employed in Section 24
(1) (b) and absent in Section 24(1) (a), by indirect method to
Section 24 (1) (a) of the 2013 Act. The aforesaid conclusions
and findings would make the contentions of Party 'B' that
Section 4(1) notification issued prior to 01.01.2014 could not
survive after 01.01.2014 and also that Section 6 notification
under the L.A. Act could not be issued after 01.01.2014,
unsustainable. In fact, all such procedures and formalities
shall be continued till the determination of compensation by
applying all the provisions for determination of compensation,
under the 2013 Act. A contra-construction, in view of the
restrictive application of the provisions to such proceedings
during its continuance, would make the provisions under
Section 24(1) (a) of the 2013 Act unworkable."
(56) Having read that, along with the findings of the Court in Mahesh's
judgment [(2022) 2 SCC 772] that ".... 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." - it can well be construed in this case
that the land acquisition proceeding which was initiated in this case by
publication of notification under Section 4 of 1894 Act on 4th December,
2013 shall continue even after promulgation of 2013 Act. It continued in
this case. The next procedural step for publication of notification under
section 6 of the 1894 Act , which has been held in Mahesh's judgment, to
be akin to a declaration under section 19 of the 2013 Act, was undertaken
on 16th April, 2014. The next step would be for declaration of Award and
determination of compensation. Here come into play the provisions of
2013 Act for determination of compensation - which would include the
provision of section 25 of 2013 Act too within its purview. In other words ,
in this case an Award should have been declared within a period of twelve
months from the date of publication of notification under section 6 of the
1894 Act ( which is akin to a declaration under section 19 of the 2013 Act).
However, admittedly in this case the Award was declared on 28th April,
2016, i.e, beyond the said prescribed statutory period.
(57) There would be no gainsaying to state that in this case no Award was
declared within a period of twelve months from the date of publication of
notification under section 6 of the 1894 Act (which is akin to a declaration
under section 19 of the 2013 Act). Therefore upon expiry of the said twelve
months period from the date of publication of notification under section 6
of the 1894 Act ( which is akin to a declaration under section 19 of the 2013
Act), the proceedings lapse. There would be no scope for the authorities to
declare any Award in this case, after the said period of time and the
purported Award dated 28th April 2016, in this case is perverse and a
nullity in the eyes of law. The only option with which the appellant is left,
is to start a fresh proceeding, in accordance with law.
(58) The other point worth mentioning is that, though the appellant has
claimed to have determined the compensation in accordance with the
provisions of 2013 Act, from the document submitted on behalf of the
respondent/ writ petitioner, being annexed with his affidavit in opposition
(affirmed on 22nd June, 2022) it could be gathered that the calculations
and determination of compensation was done in the Award under the
provisions of section 11 of the repealed Act of 1894. Illegality of State
action is absolutely manifest which cannot sustain in the eyes of law.
(59) In the facts and circumstances aforestated, we dispose of the appeal and
the connected applications with the following directions:-
(i) The order under appeal is set aside.
(ii) We declare that the award published on April 28, 2016, is non-
est in the eye of law.
(iii) The acquisition proceedings have lapsed by reason of non-
publishing of award within a year from the date of publication of
declaration under Section 6 of the 1894 Act.
(iv) The State is not in a position to return the land to the owner
since the same has been utilized for construction of a public
road.
(v) Consequently, the State shall start fresh acquisition proceedings
which will necessarily have to be under the provisions of the
2013 Act as there is no other statute under which acquisition
proceedings can be initiated. Such acquisition proceedings shall
be initiated and completed and the compensation determined
under the provisions of the 2013 Act shall be paid to the
respondents/writ petitioners within 4 months from the date of
communication of this order to the concerned Land Acquisition
Collector.
(60) Urgent certified website copy of this judgment, if applied for, be supplied
to the parties upon usual undertaking.
I agree,
(Rai Chattopadhyay,J) (Arijit Banerjee,J)
