Punjab-Haryana High Court

The Ithad Motors Transport Pvt Ltd vs State Of Haryana & Ors on 8 September, 2022

CWP No. 94 of 2016                                                -1-


       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH

                                                       CWP No. 94 of 2016
                                               Date of decision : 08.09.2022

The Ithad Motors Transport Pvt. Ltd.
                                                              .... Petitioner
                                     Versus
State of Haryana and others

                                                             ...Respondents

CORAM: HON'BLE MR. JUSTICE RAVI SHANKER JHA, CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN PALLI

Present:- Mr. B.S. Bedi, Advocate, for the petitioner.

Mr. Ankur Mittal, Addl. Advocate General, Haryana with Mr. Saurabh Mago, Asst. Advocate General Haryana, and Ms. Kushaldeep K. Manchanda, Advocate, for the respondents.

RAVI SHANKER JHA, C.J.

1. The controversy involved in the matter at hand revolves around the

applicability of Section 24 (2) of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013 (for short, `the Act of 2013') onto the facts of the case wherein the

award under Section 11 of the Land Acquisition Act, 1894 was

announced on 07.05.1992 i.e. more than five years prior to the

commencement of the Act of 2013 on 01.01.2014 and as contended by

the petitioner, neither the possession of the land has been taken by the

State nor compensation has been paid/deposited till date. In view of said

facts, prayer has been made to declare that the acquisition proceedings

have lapsed under Section 24 (2) of the Act of 2013.

2. The interpretation of Section 24 (2) of the Act of 2013 had

remained under cloud for long until it finally came to be decided by the

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Constitution Bench of the Supreme Court in the case of Indore

Development Authority v. Manoharlal and others SLP (C) 9036-9038

of 2016, whereby the Apex Court has laid down the guiding principles in

order to decide whether in given facts and circumstances, the acquisition

proceedings can be declared to have been lapsed in view of deeming

fiction provided under Section 24 (2) of the Act of 2013. The concluding

paragraph 363 of the judgment is reproduced here-in-below:-

'....1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.

2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.

3. The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non- deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.

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5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non- deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.

6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).

7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).

8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition'.

3. The exposition of the law made by the Apex Court can be

summarized in the following manner for more clarity on the principles

laid down by the Constitution Bench:-

(a) In all those cases wherein the acquisition process had been

initiated but the award has not been announced under

Section 11 of the Act of 1894, on the date of commencement

of the Act of 2013 i.e. 01.01.2014, there is no lapse of

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proceedings and the same will continue, however, with the

rider that the compensation has to be determined under the

provisions of the Act of 2013. All those cases wherein the

award under Section 11 of the Act of 1894 has been

announced prior to commencement of the Act of 2013, the

provisions of the Act of 2013 would have no bearing or

application and the proceedings will continue in respect of

those cases, as if, the Act of 1894 has not been repealed.

(b) The word 'or' used in between both the contingencies of

Section 24 (2) of the Act of 2013 is to be read as 'nor' or as

'and' which means that to seek lapsing of the acquisition

proceedings both the contingencies must be fulfilled.

Meaning thereby, that if the possession had been taken but

the compensation was not received, there would be no

lapsing. Similarly, if compensation has been accepted but

the possession has not been taken, there would be no

lapsing. (reference to para 99 and 363(2) of the judgment)

(c) As far as the aspect of compensation for the land acquired is

concerned, the Supreme Court has categorically observed

that the expression `paid' in the main part of Section 24 (2)

of the Act of 2013 does not include a deposit of

compensation in court. What is required to be proved is that

the compensation amount was tendered, which has been

explained in para 203 to mean that the amount is made

available to the landowner and that it would be a discharge

of the obligation to make the payment and in such event, the

State cannot be penalized for the default in making the

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payment. While referring to Section 31(1), 31(2), 34 of the

Act of 1894 and comparing them with the pari materia

provisions i.e. Section 71 and 80 of the Act of 2013, the

Apex Court has clarified that the only consequence of non-

payment of compensation is to make the payment of interest

as per Section 34 of the Act of 1894. The Supreme Court has

further clarified that once the payment of compensation has

been offered/tendered under Section 31 (1), the acquiring

authority cannot be penalized for non-payment as the

amount has remained unpaid due to refusal to accept by the

landowner. To clarify it further, the Supreme Court has

observed that if a landowner has filed the reference for

higher compensation he cannot claim that he was not paid

the amount.

(d) While reading the proviso to Section 24 (2) of the Act of

2013, the Supreme Court has clarified that in case, the offer

for payment has been made but not deposited, liability to

pay amount along with interest subsists and if not deposited

for majority of holdings for five years or more,

compensation under the Act of 2013 has to be paid to the

landowners as on the date of notification for land acquisition

under Section 4 of the Act of 1894. Regarding the deposit, it

has been clarified in para 242 of the judgment that for

higher compensation to follow, the money should not have

been deposited with the Land Acquisition Collector or in the

Treasury or in the Court with respect to majority of land

holdings, meaning thereby if it was deposited in any of the

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three modes with respect to majority of holdings, the higher

compensation will not follow, but interest under Section 34

of the Act of 1894 would be the consequence.

       (e)    As regards the mode of taking possession, the Supreme

              Court      has   clarified    that    drawing     of         inquest

report/memorandum would mean that physical possession

has been taken. The law with regard to vesting of land has

once again been reiterated to hold that once the possession

has been taken under Section 16 of the Act of 1894, the land

vests in the State and there cannot be any divesting or

lapsing.

(f) While computing the gap period of five years between the

date of award and commencement of the Act of 2013, period

of any subsisting interim order is to be excluded which

means that if after excluding the period of the interim order,

the pre-requisite gap period of 5 years is not there, the

provisions of Section 24 (2) cannot be invoked.

(g) The Hon'ble Court has further clarified that if the

acquisition of land had earlier been challenged and the

acquisition was upheld, which means the proceeding stood

concluded, the umbrella protection of Section 24 (2) of the

Act of 2013 cannot be invoked as it does not revive stale and

time barred claims.

(h) In para 337, the Hon'ble Court has made it clear that the

provision of Section 24 (2) of the Act of 2013 is meant to be

invoked by the beneficiaries i.e. landowners who were

recorded so at the time of issuance of notification under

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Section 4 of the Act of 1894. Any subsequent purchaser,

POA holder or otherwise, cannot invoke the provisions of

Section 24 (2) of the Act of 2013.

4. As per the case put forth by the petitioner, it is owner in possession

of the land comprised in Khasra No. 735(1-7), 737 (0-6), 5773/738 (3-

18), 5774/738(1-1) measuring 3 Bigha 6 Biswa i.e. half share in 6 Bigha

12 Biswa situated in Village Taraf Insar, Tehsil & District Panipat. The

petitioner is using the land in question for workshop and for parking of

its buses and has raised construction of boundary wall, workshop, labour

room, watchman room, store, toilets and bathroom for running the

business of transport. The said land of the petitioner along with land of

other land owners came to be acquired by the State of Haryana vide

notifications dated 10.05.1989 and 09.05.1990 issued under Section 4

and Section 6 of the Land Acquisition Act, 1894, followed by award

dated 07.05.1992 for the public purpose namely, the development and

utilization of land as Industrial, Institutional, Residential and Commercial

area for Sector 6, 7 & 8, Panipat. It is case of the petitioner that it is in

actual physical possession of the land in question and has not received

the compensation amount till date, therefore, the acquisition proceedings

qua the land in question has lapsed in terms of Section 24 (2) of the Act

of 2013.

5. The petitioner also challenged the acquisition proceedings earlier

by filing CWP No. 3011 of 1996 which was withdrawn by the petitioner

to seek benefit of the policy of the State Government issued on

24.01.2011 regarding release of land under acquisition on 18.05.2011,

pursuant to which a representation was filed, which is still pending

consideration as per the petition.

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6. In response to the submissions made by the petitioner, Mr. Ankur

Mittal, learned counsel appearing for respondents, has contended that the

present petition is squarely covered by the principles laid down in Indore

Development Authority (Supra) and thus, has prayed for its dismissal.

His preliminary objection is as regards the maintainability of the instant

petition at the instance of the petitioner as it had earlier challenged the

acquisition proceeding by filing CWP No. 3011 of 1996 which was

withdrawn on 18.05.2011 with only liberty to pursue its representation,

which implies that as far as challenge to the acquisition proceedings was

concerned, same was given up and consequently, it had attained finality.

Thus, in view of categoric observations of the Supreme Court in Para 359

of Indore Development Authority (supra), Section 24 (2) of the Act of

2013 cannot be used as a tool to reopen the concluded proceedings. He

has further contended that in the case at hand, both the contingencies

under Section 24 (2) of the Act of 2013 remain unfulfilled as the

possession of the land was taken at the time of announcement of award

itself by recording Rapat Roznamcha No. 349 dated 07.05.1992 and same

was handed over to the beneficiary department i.e. HSVP. He submits

that the drawing of Panchnama, which in the present case is recording of

Rapat Roznamcha, is a valid mode of taking possession of the land and

once it is taken, the land vests in the State free from all encumbrances.

7. Further, he submits that the compensation for land in question was

duly tendered i.e. was made available to the petitioner and other land

owners which is substantiated from the fact that out of total amount of

compensation i.e. Rs. 11,41,92,576/-, an amount of Rs. 8,31,04,049/- has

already been disbursed to the landowners, which is sufficient to show that

the amount of compensation was duly made available to the land owners.

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As regards the land in question, compensation amount is available and

the petitioner is at liberty to receive the same. He has placed reliance on

the exposition of law made in para 203 of Indore Development Authority

(supra), wherein the Hon'ble Court has observed that actual payment of

compensation is not necessary, tender of compensation amount is

sufficient to discharge the obligation of the State to pay the

compensation. Therefore, none of the contingencies of Section 24 (2) of

the Act of 2013 have been fulfilled and thus, present petition merits

dismissal.

8. After having perused the pleadings of both the contesting parties

and recording their contentions, we have no hesitation to conclude that

the matter at hand is squarely covered by the principles laid down by the

Supreme Court in the case of Indore Development Authority (supra) and

the prayer of the petitioner claiming lapsing of acquisition proceedings

deserves dismissal for the following reasons:-

a) The petitioner has invoked the provisions of Section 24 (2)

of the Act of 2013 to claim lapsing of the land acquisition

proceedings qua the land in question. The Supreme Court in

Indore Development Authority (supra) has categorically

held that the plea of Section 24 (2) is available to only those

land owners, in respect of whom the acquisition proceedings

were pending on the date of coming into effect of the Act of

2013 i.e. 01.01.2014. It has been clarified that Section 24

contemplates pending proceedings and not the concluded

ones. After making the detailed discussions and placing

reliance on the previous judicial pronouncements, the

Supreme Court in Para No. 359 has made it clear that

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Section 24 (2) cannot be used to revive dead and stale claims

and concluded cases as the same cannot be permitted to be

canvassed on the pretext of enactment of Section 24. Para

359 is extracted here-in-below:-

'...359. We are of the considered opinion that Section 24 cannot be used to revive dead and stale claims and concluded cases. They cannot be inquired into within the purview of Section 24 of the Act of 2013. The provisions of Section 24 do not invalidate the judgments and orders of the Court, where rights and claims have been lost and negatived. There is no revival of the barred claims by operation of law. Thus, stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24.

In exceptional cases, when in fact, the payment has not been made, but possession has been taken, the remedy lies elsewhere if the case is not covered by the proviso. It is the Court to consider it independently not under section 24(2) of the Act of 2013...'

Since earlier petition filed by the petitioner challenging the

acquisition proceedings was withdrawn, implying that the

challenge to the acquisition proceedings was given up, the

plea of lapsing of the acquisition under Section 24 (2) of the

Act of 2013 is not available and thus, the instant petition

being not maintainable, deserves to be dismissed.

b) Though the petitioner has contended that actual physical

possession of the land in question is with it, however, the

said averment is without any substance, firstly, in view of

the interpretation of 'physical possession' made by the Apex

Court in Indore Development Authority (Supra) wherein the

Hon'ble Court has categorically held that the word

"possession" used in the Act of 1894 has same meaning as

that of "physical possession" used in Section 24 (2) of Act

of 2013. When the State Government acquires the land and

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draws memorandum of taking possession, which in the

present case is by recording Rapat Roznamcha No.349 dated

07.05.1992, it amounts to taking of the physical possession

of the land and once the possession is taken, there is

absolute vesting of the land in the State. Thereafter, even if

the landowner retains the possession of the land, he is a

trespasser, and such possession of trespasser enures to the

benefit and on behalf of the owner i.e. State. As observed

above, the possession of the land in question was taken by

recording Rapat Roznamcha No. 349 dated 07.05.1992,

therefore, the possession of the land stands duly taken and

the same vests in the State free from all encumbrances.

Thus, we have no hesitation to hold that the physical

possession of the land in question stands taken and thus, it is

not available to the petitioner to contend that it is still in

possession of the land in question and accordingly, one of

the contingencies occurring in Section 24 (2) of the Act of

2013 goes.

c) As far as the aspect of compensation is concerned, it is

important to highlight here that the Apex Court while

interpreting the word 'paid' occurring in Section 24 (2) and

the word 'deposited' used in proviso to Section 24 (2) of the

Act of 2013 has very categorically observed the meaning

and effect of both by holding that the word 'paid' does not

include deposit and in case, the amount has been tendered,

the obligation to pay is fulfilled. What would construe to

mean "tender of the amount" has been explained in Para 203

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to mean that the amount is/was made available to the

landowner and that would be a discharge of the obligation to

make the payment. It is the specific stand of the Respondent

State that the compensation amount was duly tendered to the

landowners and was made available to the landowners. Once

it is so, there does not remain even an iota of doubt that the

compensation amount was duly tendered to the petitioner,

however, it had chosen not to accept the same and thus, no

inaction can be attributed to the State in this regard.

d) Further it is pertinent to mention that the acquisition

proceedings stood concluded way back in the year 1992 and

as pointed out by the learned counsel appearing for the State

of Haryana, the land in question has been planned and is to

be utilized for institutional site, 50 mtr. wide green belt, 12

mtr. wide service road along GT Road, as per the approved

development plan, therefore, the land in question is essential

for achieving the public purpose for which the land was

acquired and cannot be released from the acquisition, more

so when the possession of the land stands already taken.

9. As a sequel of the above discussion and in view of the law

summarized in para 363 of Indore Development Authority (supra),

specifically after having recorded that in the case at hand, the physical

possession of the land in question having been taken, the obligation for

payment of compensation stands discharged and also considering that the

land in question is very much essential to achieve the public purpose, we

have no hesitation to hold that in the instant case, the State has fully

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discharged its obligation qua both the contingencies occurring in Section

24 (2) of the Act of 2013 and it being so, the instant petition is dismissed.

10. Having dismissed the main writ petition, pending application, if

any, also meets the same fate. Status quo, if any, stands vacated.