Madhya Pradesh High Court
Amra S/O Shri Limba Sirvi (Decd.) Thr. ... vs Collector Barwani on 5 August, 2024
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 5th OF AUGUST, 2024
FIRST APPEAL No. 1936 of 2019
AMRA S/O SHRI LIMBA SIRVI (DECD.) THR. LRS BABULAL
SIRVI AND OTHERS
Versus
COLLECTOR BARWANI AND OTHERS
Appearance:
Shri Rohit Kumar Mangal, learned counsel for the appellants.
___________________________________________________________________________________
FIRST APPEAL No. 1937 of 2019
BADRI SIRVI
Versus
COLLECTOR BARWANI AND OTHERS
Appearance:
Shri Rohit Kumar Mangal, learned counsel for the appellant.
JUDGEMENT
Both the present appeals have been filed by the appellants under
Section 54 of the Land Acquisition Act, 1894 r/w Section 96 of CPC,
1908 being aggrieved by the award dated 22.08.2019 passed by Second
Additional District Judge, Badwani, District-Badwani dismissing the
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application for enhancement of the amount.
2. Brief facts of the case are that appellants in F.A. No.1936/2019,
were the owners of survey Nos.96/2 and 98/1 situated at village-
Nandgaon, District-Badwani and appellant in F.A. No.1937/2019 was the
owner of survey Nos.96/1, 98/2 and 98/3 situated at village-Nandgaon,
District-Badwani. On date 07.12.2014, a notification under Section 4 of
the Land Acquisition Act, 1894 was published showing intention to
acquisition of the land situated in the aforementioned survey numbers. In
pursuance of the land acquisition proceedings, Land Acquisition Case
No.4/A-82/2012-13 was registered before the Land Acquisition Officer in
both the appeals. On 27.09.2013, an award was passed by the Land
Acquisition Officer and the award was affirmed by District Collector,
Badwani. An application was preferred before respondent No.1/Collector
seeking reference under Section 18 of Land Acquisition Act, 1894 for
enhancement of compensation. In pursuance of the application under
Section 18, reference was submitted before the reference court and after
recording the evidence of the appellants, the reference court vide order
dated 22.08.2019 dismissed the reference application.
3. Being aggrieved by the impugned award, appellants filed these first
appeals before this Court and submitted that reference court has
committed serious error of law in not applying the provision of proviso to
Section 24(2) of The Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter
referred as 'Act, 2013') on the ground that the award was passed on
27.09.2013 i.e. prior to enforcement of the Act, 2013. Appellants further
submitted that it is undisputed that notice under Section 12 was served in
the month of February, 2014 as well as amount was deposited in the year
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of 2015, therefore, as per proviso to Section 24(2), the appellants are
entitled for compensation in accordance with the provisions of Act, 2013,
hence, impugned award deserves to be set aside.
4. Learned counsel for the appellants submits that present appeals
may kindly be allowed and the impugned award dated 22.08.2019 in
Land Acquisition Case No.900005/2015 and Land Acquisition Case
No.900004/2015 passed by the Second Additional District Judge,
Badwani may kindly be set aside and reference court be directed to
decide the reference petition for determination of compensation in
accordance with the provisions of The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 in the interest of justice. He has placed reliance upon the judgment
delivered by the Apex Court in the case of Indore Development
Authority Vs. Manoharlal and others, 2020 (8) SCC, 129. The Apex
Court in this judgment in para No.366.4 has held as under:-
"366.4. 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 the 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,
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."
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5. On the other hand, learned counsel for the respondent -State has
placed heavy reliance upon sub-Section (2) to Sec. 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 2013 and his contention is that as it was not a
case of more than 5 years old, sub-Section (2) is not applicable and the
appellant has rightly been paid the compensation by taking into account
the statutory provisions, as contained under the Land Acquisition Act,
1894.
6. Undisputedly, the Award was passed on 22nd August, 2019 and the
compensation was not paid prior to 01.01.2014. Section 24 of the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 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, --
(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 deem ed 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:
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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.
Proviso to sub-Section (2) makes it very clear that where an
Award has been made and compensation in respect of majority of land
holdings has not been deposited in the account of the beneficiaries then
all the beneficiaries are entitled for compensation after enforcement of
the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 by taking into account the
Act of 2013. The State Government after enactment of the Act of 2013
has also issued a Notification dt. 29/1/2014 and the relevant part of the
Notification ie., (5) reads as under :
5- vf/kfu;e] 2013 dh /kkjk 24 dh mi/kkjk ¼2½ ds vuqlkj
;fn fdlh ekeys esa vf/kfu;e] 1894 dh /kkjk 11 dsvarxZr
vokMZ ikfjr gq, 5 o"kZ ;k mlls vf/kd dh vof/k chr pqdh
gS vkSj ,sls ekeyks esa Hkwfe dk HkkSfrd dCtk ugh fy;k x;k gS
;k izfrdj ¼eqvkotk½ dk Hkqxrku ugh fd;k x;k gS rks ,sls
lHkh ekeys Lor% O;ixr le>s tk,axs vkSj ;fn ,sls ekeyks esa
Hkw&vtZu vko';d gS rks vf/kfu;e] 2013 ds varxZr u;s fljs
ls Hkw&vtZu dh dkjZokbZ djuk gksxhA
;gka ;g mYys[kuh; gS fd ;fn vokMZ ikfjr gks pqdk
gS vkSj dqy vftZr Hkwfe ds vf/kdrd fgrxzkfg;ksa ds [kkrs esa
izfrdj dh jkf'k tek ugha dh x;h gS rks vf/kfu;e] 1894 dh
/kkjk 4 ds varxZr Hkw&vtZu ds fy, tkjh izkjafHkd lwpuk ds
le; ds lHkh fgrxzkgh vf/kfu;e] 2013 ds izko/kkuksa ds
vuqlkj izfrdj izkIr djus ds gdnkj gksaxs vFkkZr ,sls ekeyks
esa izfrdj dk fu/kkZj.k vf/kfu;e] 2013 ds izko/kkuksa ds
vuqlkj djrs gq, lHkh fgrxzkfg;ksa dks Hkqxrku djuk
gksxkA ;g Hkh Li"V fd;k tkrk gS fd ftu fgrxzkfg;ksa dks
izfrdj dh jkf'k iwoZ esa vf/kfu;e 1894 ds vuqlkj ikfjr
vokMZ ds vuqdze esa Hkqxrku dh tk pqdh gS] ,slh Hkqxrku dh
x;h jkf'k dks vf/kfu;e] 2013 ds izko/kku ds vuqlkj laxf.kr
jkf'k ls lek;ksftr djrs gq, 'ks"k jkf'k Hkqxrku dh tk,xhA
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7. The aforesaid Notification of the State Government also makes it
very clear that the State is bound to follow the Act of 2013 and in all
those circumstances where compensation has not been paid till the
appointed date, the land holders will be entitled to compensation by
taking into account the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Not only this, Hon'ble the Delhi High Court in the case of Tarun Pal
Singh and Another Vs. Lt. Governor, Govt. of NCT of Delhi & Ors.,
(2015 SCC OnLine Del. 9789) has dealt with a similar controversy. The
Delhi High Court has taken into account the judgment delivered in the
case of Pune Municipal Corporation Vs. Harakchand Misirimal
Solanki reported in (2014) 3 SCC 183. Paragraph 4, 6 and 11 of the
aforesaid judgment reads as under :
4. The case of the petitioners is that the said first proviso
would fully apply and therefore they are entitled to
compensation under the 2013 Act. The learned counsel for
the respondents submitted that the said first proviso would
not be applicable inasmuch as the case of the petitioners
does not fall under section 24(2) of the 2013 Act.
Because, according to them, the Award was made less
than five years prior to the commencement of the 2013
Act. Therefore, the petitioners would be governed by the
provisions of section 24(1)(b) of the 2013 Act and as such
the acquisition proceedings would continue under the
provisions of the 1894 Act as if the same had not been
repealed.
6. It is evident that under section 24(1), two situations are
set out. One where no award has been made under section
11 of the 1894 Act and the other where an award has been
made under section 11 of the said Act. Insofar as the latter
case is concerned, section 24(2) provides an exception
and it begins with a non-obstante clause. In other words,
in cases where Awards have been made under section 11
of the 1894 Act, another subcategory of Awards has been
carved out by virtue of section 24(2) and those relate to
Awards which had been made more than five years prior
to the commencement of the 2013 Act, that is, more than
five years prior to 01.01.2014. In such cases, that is,
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where the Awards have been made more than five years
prior to the commencement of 2013 Act, if physical
possession of the land in question has not been taken or
compensation has not been paid, the acquisition
proceedings are deemed to have lapsed. [see: (i) Pune
Municipal Corporation and Anr v. Harakchand Misirimal
Solanki and Ors: (2014) 3 SCC183 (ii) Union of India
and Ors v. Shiv Raj and Ors: (2014) 6 SCC564 (iii)
Sree Balaji Nagar Residential Association v. State of
Tamil Nadu and Ors: Civil Appeal No.8700/2013 decided
on 10.09.2014; and (iv) Surender Singh v. Union of India
and Ors.: W.P.(C) 2294/2014 decided 12.09.2014 by this
Court]..
11. Coming back to the facts in the present petitions, we
find that the Awards were made within the period of five
years prior to the commencement of the 2013 Act.
Clearly, section 24(2) does not apply. On the other hand,
section 24(1)(b) would apply. But, the exception carved
out by the first proviso which has been placed after
section 24(2) would also apply. This is so because
compensation in respect of the majority of land holdings
has not been deposited in the account of the beneficiaries.
This is an admitted fact. The consequence of this would
be that all the beneficiaries which include the petitioners
herein who have been specified in the notification under
section 4 of the 1894 Act would be entitled to
compensation in accordance to the provisions of the 2013
Act. It is held accordingly.
8. In the light of the aforesaid judgment and the law laid down by
the apex Court Pune Municipal Corporation (supra), the appellants
are certainly entitled for compensation as per the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013.
In another case, the Full Bench of Bombay High Court in the case
of Dayaram Bhondu Koche and others Vs. State of Maharashtra
reported in (AIR 2017 BOMBAY 52) has dealt with a similar
controversy. Paragraph 3 to 7 and 10 to 12 reads as under :
3. We are concerned with the cases where an
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award under Section 11 of the 1894 Act was made
within a period of five years prior to the date of
commencement of the 2013 Act with effect from 11
2014, and we are not concerned with the cases where
either no award was made or the award was made
five years or more prior to the commencement of the
2013 Act. In the present case, the award was passed
under Section 11 of the 1894 Act on 17112010, and
the 2013 Act came into force with effect from
112014.
4. Section 24 of the 2013 Act, being relevant, is
reproduced below :
"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
subsection(1), in case of land acquisition
proceedings initiated under 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
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this Act."
Subsection (1) of Section 24 begins with non
obstante clause and it has been given overriding effect
over all other provisions of the 2013 Act. It deals only
with the applicability of the provisions for determination
of compensation under the 2013 Act in a case where the
land acquisition proceedings are initiated under the 1894
Act. Subsection (2) also begins with non obstante
clause,
and it has overriding effect over subsection (1) of Section
24 of the 2013 Act. Subsection (2) deals with the lapsing
of proceedings initiated under the provisions of the 1894
Act.
5. The provision of clause (a) of subsection (1) of
Section 24 clearly spells out the intention of the
Legislature to apply all the provisions of the 2013 Act
only in relation to the determination of compensation
where no award has been made under Section 11 of
the 1894 Act before coming into force of the 2013
Act. Similarly, the intention of the Legislature to
continue to apply the provisions for determination of
compensation under the 1894 Act where an award
under Section 11 of the 1894 Act has been made, is
also clearly spelt out under clause (b) therein, and in
such a case, the proceedings shall continue as if the
1894 Act has not been repealed. Thus, if no award is
made under Section 11 of the 1894 Act before
commencement of the 2013 Act, the provisions of the
2013 Act in relation to the payment of compensation
shall apply, and if an award under Section 11 is
passed prior to coming into force of the 2013 Act, the
compensation payableshall be determined as per the
1894 Act, as if it is not repealed.
6. Subsection (2) of Section 24 deals only with
the lapsing of proceedings initiated under the 1894
Act, leaving the choice of the appropriate
Government open to initiate the proceedings of such
land acquisition afresh in accordance with the
provisions of the 2013 Act. This provision enacts that
in relation to the land acquisition proceedings
initiated under the 1894 Act, where an award has
been made five years or more prior to the
commencement of the 2013 Act, and either of the two
contingencies is satisfied, viz. (i) that the physical
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possession of the land has not been taken, or (ii) that
the compensation has not been paid, such acquisition
proceedings shall lapse.
7. The proviso below subsection (2) of Section
24 deals with a situation where in respect of
acquisition initiated under the 1894 Act, an award has
been made and compensation in respect of 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 in Section
4 notification become entitled to compensation under
the 2013 Act.
10. The proviso below subsection (2) deals with
the subject of applicability of the provisions of the
2013 Act relating to the determination of
compensation covered by clause (b) of subsection (1)
of Section 24 therein, subject to the satisfaction of
condition that the compensation in respect of a
majority of land holdings has not been deposited in
the account of the beneficiaries. In our view, the
proviso has to be read as an exception to the
provision of clause (b) in subsection (1) of Section 24
of the 2013 Act so as to advance the intention of the
Legislature to strike the balance of conflicting
interest between the land holders and the State, and
to award a fair compensation.
11. In the decision in the case of Pune Municipal
Corporation and another v. Harakchand Misirimal
Solanki and others, reported in AIR 2014 SC 982, the
Apex Court was considering the question of lapsing
of proceedings initiated under the 1894 Act upon
bringing into force of the 2013 Act with effect from
11 2014. The undisputed factual position before the
Apex Court was that the award was made under
Section 11 of the 1894 Act on 3112008, which was
five years prior to the date of coming into force the
2013 Act on 112014. The Apex Court has held that
the condition of payment of compensation by deposit
of such amount in the Court, as provided by Section
31(2) of the 1894 Act, was not satisfied. The Apex
Court, after recording its satisfaction about
fulfillment of conditions under subsection (2) of
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Section 24 of the 2013 Act, holds in paragraph 20
that the subject land acquisition proceedings shall be
deemed to have lapsed.
12. While dealing with the provision of Section
24(2) of the 2013 Act, the Apex Court has held in
paragraph 11 of the judgment as under :
"11. Section 24(2) also begins with non
obstante clause. This provision has overriding
effect over Section
24(1). Section 24(2) enacts that in relation to the
land acquisition proceedings initiated under 1894
Act, where an award has been made five years or
more prior to the commencement of the 2013 Act and
either of the two contingencies is satisfied, viz; (i)
physical possession of the land has not been taken
or(ii) the compensation has not been paid, such
acquisition proceedings shall be deemed to have
lapsed. On the lapse of such acquisition proceedings,
if the appropriate Government still chooses to
acquire the land which was the subjectmatter of
acquisition under the 1894 Act then it has to initiate
the proceedings afresh under the 2013 Act. The
proviso appended to Section 24(2) deals with a
situation where in respect of the acquisition initiated
under the 1894 Act 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 the beneficiaries specified in
Section 4 notification become entitled to
compensation under 2013 Act." (Emphasis supplied)
In our view, the observations of the Apex Court,
which we have emphasized, clinches the issue. It is held
that the proviso appended to Section 24(2) deals with a
situation where in respect of the acquisition initiated
under the 1894 Act 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 the beneficiaries specified in Section 4
notification become entitled to compensation under the
2013 Act. The view, which we have taken, gets support
of these observations. No doubt, that the Apex Court was
not consideringa case under clause (b) of subsection (1)
of Section 24, where an award was made within a period
of five years prior to the date of coming into force of the
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2013 Act on 112014, but an obiter of the Apex Court, in
the absence of any direct contrary pronouncement is
binding upon us under Article 141 of the Constitution of
India. For this proposition, we rely upon the decision of
the Apex Court in the case of Oriental Insurance Co. Ltd.
v. Meena Variyal and others, reported in (2007) 5 SCC
428, more particularly the portion in paragraph 26,
wherein it is held that an obiter dictum of the Apex Court
may be binding only on the High Courts in the absence of
the direct pronouncement on that question elsewhere by
the Apex Court.
9. In the light of the aforesaid judgment, undisputedly the amount of
compensation was deposited in 2015 so, the impugned award deserves to
be set aside and are accordingly hereby set aside. The matter is
remanded back to Second Additional District Judge, Badwani to pass a
fresh order after by taking into account the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 and by calculating the quantum of compensation by taking into
account the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 only.
10. The exercise of passing fresh Award, as directed by this Court, be
concluded within a period of three months from the date of receipt of
certified copy of this order.
The parties are directed to mark their appearance before the learned
Second Additional District Judge on 21.08.2024.
Both the present appeals stand disposed of. No order as to cost.
(HIRDESH)
JUDGE
N.R.
