Rajasthan High Court

Brij Mohan Jain vs State Of Raj And Ors on 27 October, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 5780/2018

Brij Mohan Jain Son Of Dal Chand Jain, Resident Of House No.
5563, Ward No. 09, Near Jain Mandir, Janipuri, Rewari Haryana
                                                                     ----Petitioner
                                     Versus
1.     State Of Rajasthan Through The Secretary, Industry,
       Government Of Rajasthan, Secretariat, Jaipur.
2.     The Land Acquisition Officer, Riico, 22 Godown, Jaipur Raj
3.     Rajasthan State Industrial Development And Investment
       Corporation, Tilak Marg, Jaipur Rajasthan Through Its
       Secretary
                                                                  ----Respondents

For Petitioner(s) : Mr. R.K. Mathur Sr. Adv, with Mr. Aditya Kiran Mathur and Ms. Kritin Sharma For Respondent(s) : Mr. R.P. Singh, AAG Mr. Jaivardhan Singh Shekhawat Ms. Sheetal Mirdha, AAG with Mr. Prateek Singh

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

27/10/2021

Instant writ petition has been filed by the petitioner with the

following prayers:-

"(I) by an appropriate writ, order or direction, the entire land acquisition proceedings initiated through notification issued under Section 4 of the Act of 1894 dated 23.9.1997 be declared lapsed in view of the fact that the petitioner is in actual physical possession of the land and possession of the land has never been taken by the respondents inasmuch as the compensation of the land has not been paid to the petitioner.

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(ii) By issuing an appropriate writ, order or direction, it may be declared that in view of the express provisions of Sub-section (20 of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 the land acquisition proceedings automatically lapsed as the award came to be passed five years prior to 01.01.2014 and the compensation of the land has not been paid.

(iii) That by issuing an appropriate writ, order or direction, the respondents be restrained not to proceed for dispossessing the petitioner from his aland in Khasra No.433 as the land acquisition proceedings have already lapsed in view of provisions of sub-section (2) of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

(iv) This Hon'ble Court may also be pleased to pass any other and further writ, order or direction as may be deemd just and proper in the facts and circumstances of the case in favour of the humble petitioner.

(v) Cost of the writ petition may kindly be awarded in favour of the petitioner."

Brief facts of the case are that the respondent-State of

Rajasthan issued a notification under Section 4 on 23.09.1997 of

the Land Acquisition Act for acquisition of 152 Bigha 15 Biswa

Khatedari land for development of IIIrd phase of Industrial Area

Bhiwadi situated in Village Kushkeda, Karoli, Budi Babal, Tehsil

Tijara, District Alwar and the land of the petitioner is also included

in the said notification of acquisition. The declaration under

Section 6 was also published by the respondents on 16.12.1998

and thereafter the Land Acquisition Officer passed the award on

12.01.2001, pursuant to which majority of co-Khatedars accepted

the compensation. So far as the land of the petitioner is

concerned, compensation in two cheques dated 14.11.2008 was

deposited before the Reference Court and possession of the land

in dispute was taken by the Land Acquisition Officer and handed

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over to the RIICO by preparing panchnama on 24.12.2008 and

thereafter the land in dispute was recorded in the name of RIICO.

Hence, this writ petition has been filed by the petitioner.

A bare reading of the prayer made by the counsel for the

petitioner in this writ petition clearly shows that the same has

been filed merely on the basis of provisions of Section 24 of the

Rights to fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (hereinafter referred to

as "the Act, 2013").

This Court on 04.05.2018considering the provision under

Section 24(2) of the Act, 2013 and the fact that the interpretation

with regard to applicability of Section 24(2) is pending before the

Constitutional Bench of the Hon'ble Supreme Court, passed the

interim order, which reads as under:-

"Issue notice to the respondents. The issue involved in the present writ petition relates to Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

In view thereof, the matter shall be heard after the decision rendered by the Constitutional Bench of the Hon'ble Supreme Court relating to Land Acquisition Matters.

In the meanwhile, the petitioner shall not be dispossessed."

Counsel for the petitioner submits that as on today the

petitioner is in actual physical possession of the land, constructed

shops as well as having electric connection over the land in

dispute. Counsel further submits that although the respondents

have deposited the compensation before the Reference Court but

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the petitioner has not received any notice from the said Court for

receiving the said compensation.

Mr. R.P. Singh and Ms. Sheetal Mirdha, learned Additional

Advocate General strongly opposed the writ petition and

submitted that the issue involved in this writ petition has already

been considered and decided by the Constitutional Bench of the

Hon'ble Supreme Court in the matter of Indore Development

Authority Vs. Manoharlal and Others reported in (2020) 8 SCC

129, and in paras No.272, 274, 279 & 366, it has been held as

under:-

"272. The decision in Velaxan Kumar cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it can be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing panchnama, which has been a rarely recognized and settled mode of taking possession.

274. It was submitted on behalf of landowners that under Section 24 the expression used is not possession but physical possession. In our opinion, under the 1894 Act when possession is taken after award is passed under Section 16 or under Section 17 before the passing of the award, land absolutely vests in the State on drawing of panchnama of taking possession, which is the mode of taking possession. Thereafter, any re-entry in possession or retaining the possession is wholly illegal and trespasser's possession

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inures for the benefit of the owner and even in the case of open land, possession is deemed to be that of the owner. When the land is vacant and is lying open, it is presumed to be that of the owner by this Court as held in Kashi Bai vs. Sudha Rani Ghose. Mere re-entry on government land once it is acquired and vests absolutely in the State (under the 1894 Act) does not confer any right to it and Section 24(2) does not have the effect of divesting the land once it vests in the State.

279. The Court is alive to the fact that there are a large number of cases where, after acquisition land has been handed over to various corporations, local authorities, acquiring bodies etc. After depositing compensation (for the acquisition) those bodies and authorities have been handed possession of lands. They, in turn, after development of such acquired lands have handed over properties; third-party interests have intervened and now declaration is sought under the cover of Section 24(2) to invalidate all such actions. As held by us, Section 24 does not intend to cover such cases at all and such gross misuse of the provisions of law must stop. Title once vested, cannot be obliterated, without an express legal provision; in any case, even if the landowners argument that after possession too, in case of non-payment of compensation, the acquisition would lapse, were for arguments' sake, be accepted, these third-party owners would be deprived of their lands, lawfully acquired by them, without compensation of any sort. Thus, we have no hesitation to overrule the decisions in Velaxan Kumar and Narmada Bachao Andolan with regard to mode of taking possession. We hold that drawing of panchnama of taking possession is the mode of taking possession in land acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does not inure for conferring benefits under Section 24(2) of the 2013 Act.

366.In view of the aforesaid discussion, we answer the questions as under:

366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 01.01.2014, the date of commencement of the 2013 Act, there is no lapse of

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proceedings. Compensation has to be determined under the provisions of the 2013 Act.

366.2. In case the award has been 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 2013 Act under the 1894 Act as if it has not been repealed.

366.3. 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 2013 Act 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.

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 landholdings 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.

366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, 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

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court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners 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 2013 Act.

366.6 The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act 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 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.8 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 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned 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.

366.9 Section 24(2) of the 2013 Act 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 2013 Act 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."

Learned AAGs further submitted that in view of the

judgment passed by the Hon'ble Supreme Court in the matter of

Indore Development Authority (supra), the present writ petition

does not survive and the same deserves to be dismissed.

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Heard counsel for the parties and perused the record.

This writ petition filed by the petitioner deserves to be

dismissed; for the reasons; firstly, the award was passed by the

Land Acquisition Officer in the year 2001 and the petitioner has

filed this writ petition in the year 2018 after a delay of 17 years

without challenging the award, secondly, after depositing the

compensation in the Civil Court the possession has been taken by