Rajasthan High Court - Jaipur
Sms Investment Corp Pvt Ltd vs State (Urban Development)Ors on 7 July, 2017
Author: M.N. Bhandari
Bench: M.N. Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 11938 / 2016
SMS Investment Corporation Pvt. Ltd., a company incorporated
under the Indian Companies Act, 1956 and having its office at
Khasra No. 188, Sardar Patel Marg, Jaipur.
...Petitioner
Versus
1. State of Rajasthan through Principal Secretary to Government,
Urban Development and Housing Department, Government
Secretariat, Jaipur.
2. Jaipur Development Authority, Indira Circle, Jawahar Lal Nehru
Marg, Jaipur through Commissioner.
3. Commissioner, Jaipur Development Authority, Indira Circle,
Jawahar Lal Nehru Marg, Jaipur.
4. Enforcement Officer, Zone-1, Jaipur Development Authority,
Indira Circle, Jawahar Lal Nehru Marg, Jaipur.
....Respondents
_____________________________________________________ For Petitioner(s) : Mr KK Sharma, Sr Advocate with Mrs Alankrita Sharma, Mr Madhu Sudan Rajpurohit For Respondent(s) : Mr PS Narasimha, Sr Advocate, Additional Solicitor General of India Mr Rajendra Prasad, Additional Advocate General with Mr Prabhat Kumar and Mr M Shiromani Sharma _____________________________________________________ HON'BLE MR. JUSTICE M.N. BHANDARI Judgment Date of Judgment: 7th July, 2017 By this writ petition, a challenge is made to the acquisition of the land measuring 19098 square yards. The prayer is to declare acquisition to have lapsed as per section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the Act of (2 of 35) [CW-11938/2016] 2013").
The further prayer is to declare the constructed building on the aforesaid land was not part of acquisition and if court holds otherwise then declare it to have lapsed. The respondents be restrained to take any action and to restore the possession. The notice under section 72 of the Jaipur Development Authority Act, 1982 (for short 'the Act of 1982') has also been challenged. Brief facts of the case -
It is stated that a Covenant was entered between the Government of India and Lt. General Sir Sawai Mansingh Bahadur, Jaipur, wherein, land of Raj Mahal was declared to be his private property. The land was then gifted to Maharaja Bhawani Singh in February, 1957. A lease deed was executed on 10.4.1968 in favour of the petitioner company for the land measuring 74798 square yards. The petitioner company then assigned an area of 55,076 square yards to Gandhi Grah Nirman Sahkari Samiti (for short "the Sahkari Samiti"). The left out area of 19098 square yards remained with the petitioner company.
The State of Rajasthan issued a notification under section 52(2) of the Urban Improvement Trust Act, 1959 (for short "the Act of 1959") on 24.3.1973 showing intention to acquire vacant land near Residency Area, Jaipur. The Notification under (3 of 35) [CW-11938/2016] section 52(1) of the Act of 1959 was then issued on 11.7.1974.
The acquisition proceedings were challenged by the Sahkar Samiti and Maharaja Sawai Bhawani Singh at that stage. The litigation went upto the Supreme Court where no interference in the proceedings was made. The award was then passed on 19.10.1993. No compensation was awarded for the constructed portion thus only vacant land was acquired. A survey report was prepared on 18.5.1993 for khasra No.187 and 188. It shows that buildings were existing on some part of the land. A memo of possession was prepared by the Land Acquisition Officer on 2.11.1993 but physical possession of the land was not taken thus the petitioner company remained in possession of the entire land.
The possession memo was also for the vacant land and not of the constructed portion. The memo was not signed by the petitioner company. The part of the constructed building was used as an office of the company. The petitioner company was paying House Tax and other taxes for the said building which is having electricity and telephone connections.
The petitioner company filed a reference petition under section 18 of the Land Acquisition Act, 1894 (for short "the Act of 1894") to claim compensation for the entire land. The compensation towards land assigned to Sahkari Samiti was also claimed. The Sahkari Samiti had filed separate reference petition (4 of 35) [CW-11938/2016] No.7/1994. On 7.2.2001, a joint application was filed by Sahkari Samiti and the petitioner company assigning entire land to the company to receive compensation. On 22.8.2016, two notices were affixed by the respondents on the main building existing in khasra No.188. It was with a direction to remove the construction. In case of objection, it should be submitted in the office of the Jaipur Development Authority, Jaipur (JDA). The notices aforesaid were issued under section 72 of the Jaipur Development Authority Act, 1982 (for short "the Act of 1982").
The petitioner company submitted a representation denying allegation of encroachment. On 24.8.2016, officers of the JDA along with their paraphernalia, took possession forcefully from the persons residing in the building and the office block. The petitioner company was not even allowed to take their record. The objections submitted by the petitioner company on 23.8.2016 were also ignored. It is despite the fact that according to the JDA also, 0.04 hectare land was in possession of the petitioner company.
The issues raised by the petitioner company -
The acquisition of land was only of vacant land. The compensation was also determined and deposited in the civil court for the vacant land only. The constructed building was not part of acquisition thus neither possession was taken nor compensation (5 of 35) [CW-11938/2016] was determined. The constructed portion always remained in possession of the petitioner company thus even if it is assumed that it was part of acquisition then it lapsed as per section 24(2) of the Act of 2013.
The acquisition was initiated under the Act of 1959 but before its completion, Land Acquisition Act, 1894 was applied to the State of Rajasthan w.e.f. 24.9.1984 by bringing the Land Acquisition (Rajasthan Amendment) Act, 1987. Therein, section 52 of the Act of 1959 was amended and section 53 to 59B were deleted. New section 60A was inserted for pending cases of acquisition. The amending Act of 1987 did not receive assent of the President, therefore, it was struck down by this court.
The Rajasthan Urban Improvement (Amendment and Validation) Act, 1990 was thereafter enacted which received assent of the President on 24.3.1995 and it was given effect since 1.8.1987. The award in the instant case was passed on 19.10.1993 and it was under section 11 of the Act of 1894. The Land Acquisition Act, 1894 has also been repealed by the Act of 2013. As per section 24(2) of the Act of 2013, acquisition lapses if physical possession of the land has not been taken or compensation has not been paid. In the instant case, physical possession of entire land remained with the petitioner company till they were recently dispossessed. The possession memo otherwise shows it to be for vacant land leaving the constructed building.
(6 of 35) [CW-11938/2016] The period after passing of the award is of 23 years and suddenly section 72 of the JDA Act was invoked to demolish and to take possession of 150 years old building. If the acquisition of land of vacant portion is not interfered then, alternatively, to accept the claim for constructed building.
It is submitted that acquisition proceedings were initiated under the Act of 1959 but award was passed under section 11 of the Act of 1894 thus section 24(2) of the Act of 2013 applies to the case. It is more so when even as per section 60A, as added under the Act of 1959, notice issued under section 52(1) and 52(2) of the Act of 1959 is treated to be notification under section 6(1) and 4(1) of the Act of 1894 respectively. In view of the above, notification issued under section 52(2) is to be treated as notification under section 4 of the Act of 1894 and notification under section 52(1) to be treated as declaration under section 6 of the Act of 1894. With deeming fiction, entire acquisition comes under the Act of 1894. A reference of the judgment in the case of "State of Bombay versus Pandurang Vinayak", AIR 1953 SC 244, "PEK Kalliani Amma versus K Devi", AIR 1996 SC 1963 and "Mundri Lal versus Sushila Rani", (2007) 8 SCC 609 has been given. The statutory fiction should be taken to its logical conclusion.
A further reference of the judgment of the Apex Court in the case of "Rajendraswami versus Commissioner of Hindu Religious and Charitable Endowments", AIR 1965 SC 502 and (7 of 35) [CW-11938/2016] "Manorey @ Manohar versus Board of Revenue", (2003) 5 SCC 521 has been given.
The argument of the respondents about non-application of Section 24(2) of the Act of 2013 after vesting of land has been contested. The vesting of land has no effect on section 24(2) of the Act of 2013. In the instant case, neither actual physical possession was taken nor compensation was paid thus section 24(2) of the Act of 2013 would apply. It is even if theory of vesting of land in the State is applied. A reference of the judgment in the case of "Delhi Development Authority versus Sukhbir Singh & ors", AIR 2016 SC 4275 has been given where the prayer of the counsel to revisit the judgment in the case of "Pune Municipal Corporation & anr versus HM Solanki", (2014) 2 SCC 183 was declined. The Act of 2013 was held to be a beneficial legislation thus vesting of land has no effect on section 24(2) of the Act of 2013. Therein, judgment in the case of "Satendra Prasad Jain & ors versus State of UP & ors", (1993) 4 SCC 369, was also considered. The application of section 24(2) of the Act of 2013 remains even if acquisition was earlier challenged and remained unsuccessful. It would not be even if petitioner sought reference under section 18 of the Act of 1894 and did not challenge the acquisition for part of the land.
The Sahkari Samiti did not claim compensation of the constructed building and even if they have claimed, it will have no effect. It is due to joint application in the year 2001 to assign (8 of 35) [CW-11938/2016] rights in favour of the petitioner company. The denial of title of constructed building and land adjoining thereto of khasra Nos.187 and 188 is in ignorance of the fact that Sahakari Samiti was only an assignee and not the owner of the land. The right of the petitioner company never extinguished. The locus of the petitioner company to challenge action of the respondents for land and building treating to be of the Sahkari Samiti is not tenable.
Learned counsel for petitioner further submits that even if it is assumed that respondents had taken possession through memo dated 2.11.1993, same is illegal. The respondents ignored that even as per section 52(5) and (6) of the Act of 1959 and section 16 of the Act of 1894, a notice to take possession was required to be served. No notice for taking possession was served thus the procedure given under section 52(5) and 52(6) has not been applied.
In the instant case, award was passed on 19.10.1993 thus the State Government could not have exercised power under the Act of 1959, as amended. The trust ceased to exist after the JDA Act of 1982. In view of the above, entire action of the respondents is not only illegal and arbitrary but suffers from motive thus the prayer made in the writ petition may be granted. Arguments of the side opposite (9 of 35) [CW-11938/2016] Learned Additional Advocate General Mr Rajendra Prasad submits that a notification to acquire 65 bigha 16 biswa of land was issued under section 52(2) of the Act of 1959 on 5.3.1973. Subsequently, a notification under section 52(1) of the Act of 1959 was issued on 11.7.1974. The land of khasra No.187 and 188 apart from other khasras were shown in the name of Gandhi Grah Nirman Sahkari Samiti when the notification was published on 12.9.1974. The acquisition of land was challenged by Sahkari Samiti and Shri Bhawani Singh. The Single Bench of this court quashed the acquisition vide its order dated 15.10.1980. The State preferred an appeal before the Division Bench which was allowed. The judgment of the Division Bench was challenged before the Apex Court but the appeal therein was dismissed on 30.3.1993. The petitioner neither challenged the acquisition nor raised objection for khasra No.187 and 188 when shown in the name of Sahakari Samiti. It did not even challenge the mutation of the said land. The Land Acquisition Officer therefore passed an award on 19.10.1993 but the petitioner company did not raise objection even towards compensation of khasra No.187 and 188 in favour of Sahakari Samiti. The possession of entire land was taken. Shri Kalyan Mal Kabra and Shri Haldiya had signed the possession memo on 2.11.1993. The compensation was determined and deposited with the civil court. The entire land of khasra No.187 and 188 was shown to be part of acquisition thus it include the building therein.
Four Reference Petitions were filed. The Reference (10 of 35) [CW-11938/2016] Petition No.6/1994 was filed by the petitioner company and 7/1994 was filed by the Sahkari Samiti. The Sahakari Samiti made claim for khasra No.187 and 188 apart from others after showing it to be of their ownership. It was categorically stated that possession of the said land apart form other khasra was taken from them on 2.11.1993. In the Reference Petition preferred by the petitioner company, admission of transfer of land measuring 55700 square yards out of 74798 square yards to the Sahakari Samiti was made. The petitioner company retained 19098 square yards of land. The reply of the Reference Petition was filed on 20.5.2000 by the Sahakari Samiti. It was admitted that the land measuring 55700 square yards was purchased by them and possession thereof was taken by the Land Acquisition Officer on 2.11.1993. It is, thereupon, that joint application in collusion was filed by the Sahakari Samiti and the petitioner company before the civil court but it is only to seek compensation.
In view of the facts given above, the land of khasra No.187 and 188, where the structure exists, does not belong to the petitioner company after its purchase by the Sahakari Samiti. The petitioner company has no locus to challenge action of the respondents on any of the grounds raised herein. The petitioner company has not approached this court with clean hands as it has suppressed material facts. Even map/ plan submitted along with Reference Petition No. 6/1994 has not been filed though it makes a mention about the map. It shows conduct of the petitioner company thus adverse inference may be drawn against them.
(11 of 35) [CW-11938/2016] It is thus stated that the petitioner company has not narrated correct facts and otherwise suppressed material facts relevant to the case. Hence, the writ petition may be dismissed on the aforesaid ground alone.
Challeng to the locus of the petitioner-company -
It is stated that section 24(2) of the Act of 2013 would not apply to the case where initiation of acquisition was not under the Act of 1894. The petitioner company cannot otherwise challenge acquisition on any of the grounds for want of locus. The land of khasra No.187 and 188 was all through shown to be of Sahkari Samiti. It was not only during the course of acquisition but even when Reference Petition was filed by respective parties. The compensation was also awarded in favour of the Sahakari Samiti. The petitioner company did not raise objection when the land of khasra No.187 and 188 was shown to be of Sahakari Samiti in the notification under section 52(2) and 52(1) of the Act of 1959. It did not challenge even the award, rather, preferred Reference Petition along with site map which does not include khasra No.187 and 188. It did not even question the mutation when the land was entered in the name of the UIT, Jaipur. The possession of remaining land was also taken.
According to the petitioner company, land belonging to (12 of 35) [CW-11938/2016] the structure was never part of the acquisition. If that is so, then question of lapsing under section 24(2) of the Act of 2013 would not arise. It applies only when acquisition was initiated followed by an award under the Act of 1894.
The objection on the ground of delay has also been raised. The Act of 2013 came into effect since 1.1.2014 but the writ petition to claim lapse was filed lately in the year 2016 without explaining delay. The petitioner company justified delay in reference to proceedings for removal of encroachments. They did not challenge even the mutation when the land was entered in the name of UIT and otherwise the land in dispute was shown to be of the Sahakari Samiti.
Arguments in reference to section 24(2) of the Act of 2013 -
It is submitted that section 24(2) of the Act of 2013 has no application to the instant case. The acquisition proceedings were not initiated under the Act of 1894 which is a pre-condition for application of the Act of 2013. The initiation of the acquisition in the instant case was under the Act of 1959. The notification under section 52(1) followed by possession resulted in vesting of land in the government free from all encumbrances. It has been ignored by the petitioner company on a misconceived arguments. Once the land vest in the State free from all encumbrances, it cannot be divested. In the case in hand, possession of the land (13 of 35) [CW-11938/2016] was taken and compensation was also deposited in the court.
Learned counsel has given reference of the judgment of the Apex Court in the case of "Pratap & anr versus State of Rajasthan & ors", (1996)3 SCC 1. If the land vest in the government free from encumbrances then subsequent notification and amendment in the Act of 1959 would be irrelevant, rather, of no consequence. It is held that even extension of the Central Act cannot have effect thus application of section 11A of the Act of 1894 was not accepted. The vesting of land has been questioned in ignorance of the fact that possession of the land was taken after the notification under section 52(1) of the Act of 1959.
Learned counsel further submits that even section 60A, as amended by the Amending And Validation Act of 1990, is not to the benefit of the petitioner company. The proceedings initiated under the Act of 1959 are not taken to be under the Act of 1894, rather, it has only saved the proceedings. The argument of the petitioner company that notifications under section 52(1) and 52(2) have been taken to be declaration under section 6 and notification under section 4 of the Act of 1894, respectively. Section 60A provides for application of sections 4 and 6 of the Act of 1894 for reckoning limitation. Hence, petitioner company has misinterpreted the provision. Section 60A was otherwise a transitory provision for the pending cases with a further provision that the proceedings initiated under the Act of 1959 would not be challenged due to inconsistency between the two. Sub-section (4) (14 of 35) [CW-11938/2016] of section 60A protect vesting of land, rather, it provides that it cannot be challenged even on the ground of non-payment of compensation. Reference of section 3 of the Validating Act of 1990 has also been given to show that it saves all the proceedings under the Act of 1959 but does not provide it to be under the Act of 1894. The Validating Act of 1990 thus in no way benefit the petitioner.
In view of the above, section 24(2) of the Act of 2013 does not apply to the present case. It is not only that possession of entire land was taken but even for the reason that petitioner company has no locus to challenge it. The compensation has been deposited.
The issue about application of section 24(2) of the Act of 2013 was recently considered by the Apex Court in the case of "the Special Land Acquisition Officer, Kiadb, Mysore versus Anasuya Bai", (2017) 3 SCC 313. Therein, provisions of Karnataka Industrial Areas Development Act, 1966 were considered. The effect of vesting of land has been taken into consideration. In the case of "M Nagabhushana versus State of Karnataka", (2011)3 SCC 4, it was held that section 11A of the Act of 1894 would not apply to the land acquired under the Karnataka Industrial Areas Development Act, 1966. It is by applying the principle laid down by the Apex Court in the case of Pratap (supra). The Division Bench of the Karnataka High Court yet applied section 24(2) of the Act of 2013 in the case of Anasuya (supra) which was then (15 of 35) [CW-11938/2016] challenged before the Apex Court. It was held that section 24(2) of the Act of 2013 would not be applicable. The said judgment governs the controversy raised herein. It is not only in reference to the judgment in the case of Anasuya (supra) but also in the case of Pratap and Satendra Kumar Jain (supra). The dispute about possession -
It is stated that while possession of the vacant land through a "memo" was taken, constructed portion was left as it was not part of the acquisition. The argument aforesaid has been raised in ignorance of the notification for acquisition because it was for the entire land shown therein which includes the land on which structure exist.
The challenge to the acquisition of land of khasra No.187 and 188 apart from other khasras in the hands of the Sahakari Samiti remained unsuccessful, rather, Apex Court upheld the acquisition. The petitioner company is trying to take benefit of a note in the possession memo which shows possession of the vacant land leaving the constructed portion.
The mode of possession has been considered by the Apex Court in the case of "Banda Development Authority, Banda versus versus Moti Lal Agarwal & ors", (2011) 5 SCC 394. The possession in the instant case has been taken by the procedure (16 of 35) [CW-11938/2016] given therein. In view of the above, petitioner company has no case to challenge the acquisition or the action of the respondents initiated under section 72 of the Act of 1982. The writ petition may accordingly be dismissed with costs.
I have considered rival submissions of the parties and perused the record.
The writ petition has been filed to seek lapse of acquisition. It is as per Section 24(2) of the Act of 2013. A notice given by the JDA under Section 72 of the Act of 1982 has also been challenged with a prayer to hand over the possession. The perusal of the notice under Section 72 shows it to be for Khasra No.188 of Village Hathroi. The constructed portion is shown on 400 square metres.
Learned counsel for petitioner-company submitted that a lease deed was executed by Shri Bhawani Singh in their favour on 10th April, 1968 for the land measuring 74798 square yards. The petitioner company assigned 55076 square yards land in favour of Sahakari Samiti on 29th March, 1972. The deed refers as to which portion has been assigned, rather, transferred to the Sahakari Samiti.
The relevant portion of the deed is quoted hereunder to show as to which portion was assigned to the Sahakari Samiti and (17 of 35) [CW-11938/2016] the rights given therein:
"NOW THIS INDENTURE WITHNESSETH that in pursuance of the said Agreement and in consideration of the sum of Rs. 75,000/- (Rupees Seventy Five thousand) only paid on or before the execution of these presents by the - Assignee to the Assignor (the receipt thereof the Assignee doth hereby admit and acknowledge and of and from the some and every part thereof doth hereby acquit, release and discharge the Assignee) and in further consideration of the sum of Rs. 9,03,880/-(Nine Laksh three thousand Eight hundred and Eighty) bearing the balance of the purchase price covenanted to be paid the Assignee to the Assignor as hereinafter stated, IT the Assignor doth hereby assign and transfer upto the Assignee All THAT the leasehold right, title and interest of the Assignee in all that piece or parcel or land together with the two buildings or structures standing thereon situate at Raj Mahal, Residency Road, Jaipur, containing by admeasurement 55700 Square Yards or thereabouts in Registration Sub-District of Jaipur comprised in and demised by the hereinbefore recited Indenture of Lease dated the 10 th day of April 1968 and delineated on the plan thereof thereto annexed and thereon surrounded by red coloured boundary lines and more particularly described in the Second - Schedule hereunder written (all which said land hereditements and premises are hereinafter for the sake of brevity referred to as "the said premises") TOGETHER WITH two buildings or structures standing thereon and also All AND SINGULAR (18 of 35) [CW-11938/2016] the courts, yards, areas, ways, walls compounds, paths, lights, liberties, casements, profits, privileges, advantages, rights, members and-appurtenances whatsoever to the said premises belonging to in anywise appertaining or with the sameor any part thereof usually held, used or occupied therewith or - repuged to belong or be appurtenant thereto AND ALL the estates, right, title, interest, benefit, claim and demand whatsoever both at law and inequity of the Assignor into out ofor upon the said premises or any part thereof TO HAVE AND TO HOLD THE SAID premises described in the- Schedule hereunder written AND ALL AND SINGULAR other the premises hereby assigned transferred or expressed so to be with their and every of their rights, members and appurtenances unto and to the use and benefit of the Assignee for all the residue now unexpired of the said term of 99 years granted by the hereinbefore recited Indenture of Lease dated the 10 th day of April, 1968 and SUBJECT NEVERTUELESS to the payment of the rents and performance and observance of the covenants, conditions and stipulations in the hereinbefore recited- Lease reserved and contained and hence forth on the part of the Assignee on as the Lease to be paid, performed and observed and the Assignor doth hereby covenant with the Assignee that not withstanding any act, deed or thing by the Assignor or by any person or persons lawfully or equitably claiming by, form, through or in trust for it done, executed, committed or ommitted or knowingly-suffered to the contrary the hereinbefore recited-Indenture of Lease dated the 10th day of April 1968 is now good and effectually (19 of 35) [CW-11938/2016] valid and subsisting lease in law of the premises therein comprised and hereby assigned and transferred or expressed so to be and that the said lease has not been forfeited or surrendered or become void or voidable and that the rents, covenants, and conditions by and under the hereinbefore recited indenture of Lease dated the 10th day of April, 1968."
If the relevant para of the deed quoted above is read with First and Second Schedules then it would reveal that 55,700 square yards together with building and structure thereto were transferred to the Sahakari Samiti.
The reference of aforesaid is relevant to find out locus of the petitioner-company. It is also for the reason that at the time of acquisition, Khasra Nos.187 and 188, in which structures are existing, has been shown in the name of Sahakari Samiti and petitioner-company did not raise objection against it. They did not question the award even when compensation was made in favour of Sahkari Samiti. The reference petitions were also filed under Section 18 of the Act of 1894 separately by the Sahakari Samiti and the petitioner-company. In the year 2001, a joint application was filed to get compensation even for the land belonging to the samiti. Prior to the aforesaid, acquisition of the land in question was challenged by the Sahkari Samiti and not by the petitioner- company.
(20 of 35) [CW-11938/2016] The acquisition proceedings were upheld by the Apex Court in the year 1993 itself. The aforesaid shows that till 2001, no claim in Khasra No.188 was made by the petitioner-company. The lapse of acquisition of land of constructed portion apart from entire land of 19098 square yards has been claimed by the petitioner-company.
There exists other factual aspects. It would be considered while taking into consideration the legal issues raised by the petitioner-company and even the preliminary objections raised by the respondents. This court is first considering the issue of locus of the petitioner-company to claim lapse of acquisition under Section 24(2) of the Act of 2013.
The locus of the petitioner-company to claim lapse of acquisition under Section 24(2) of the Act of 2013 -
The lapse of the acquisition has been claimed for 19098 square yards of land which includes the land where structure exists. The possession on the structure has been shown not only in reference to memo of possession but the payment of house tax and UD tax apart from existence of electricity and telephone connections. In view of the above, I am considering the case regarding vacant land as well as of structure separately.
The structure exists in Khasra No.188. The petitioner-
(21 of 35) [CW-11938/2016] company said to be in possession of the building. The question is as to whether they have locus to claim lapse of acquisition for the land where building exist. The perusal of the assignment deed shows that land where structures were existing had been transferred to the Sahakari Samiti. In view of the above, how the lapse pertaining to the land, having structure, can be claimed by the petitioner-company. When acquisition proceedings under the Act of 1959 was initiated followed by award, it was shown in the name of Sahakari Samiti. The representatives of the Sahakari Samiti are signatory of the possession memo. It is, however, a fact that memo exclude possession of the structure. The possession on the building is coming out from the notice under Section 72 of the Act of 1982 itself. It may be for 400 square yards but the notice was given to show the possession of the company though said to be encroachment. It had even deposited the urban development tax, etc., though, in the year 2016 but prior to the notice under Section 72 of the Act of 1982. If the physical possession of the building would have been with the Sahakari Samiti, the notice under Section 72 of the Act of 1982 should have been given to the Samiti and not to the petitioner company.
In view of the above, I find locus of the petitioner company to challenge the action of the respondents for the structure/building. It is moreso when, deemed lapse of the acquisition has been claimed in reference to Section 24(2) of the Act of 2013 for the structures/building. The view aforesaid is (22 of 35) [CW-11938/2016] supported by the judgment of the Apex Court in the case of Government of NCT of Delhi Vs. Manav Dharam Trust & Anr. in Civil Appeal No.6112/2017 decided vide the judgment dated 04 th May, 2017.
So far as the vacant land measuring 19098 square yards is concerned, it remained under their title thus locus to challenge the action of the respondents or to claim deemed lapse cannot be questioned. The issue about locus of the petitioner company is decided accordingly.
Whether Section 24(2) of the Act of 2013 is applicable to the case in hand -
The petitioner company has claimed deemed lapse of the acquisition in reference to Section 24(2) of the Act of 2013. The issue as to whether it would apply to the facts of this case or not. For ready reference, Section 24 of the Act of 2013 is quoted hereunder for ready reference :
"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 (23 of 35) [CW-11938/2016] 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 to 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 holding 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."
Section 24 of the Act of 2013 would apply if initiation of the acquisition proceedings are under the Act of 1894 followed by an award under section 11 five years prior to enactment of the Act (24 of 35) [CW-11938/2016] of 2013. In the instant case, award was passed on 19 th October, 1993 thus it was five years prior to coming into effect the Act of 2013. The Notification under Section 52(2) followed by Notification under Section 52(1) were issued under the Act of 1959 thus initiation of the acquisition proceedings was not under the Act of 1894.
The acquisition was challenged by Brigadier Bhawani Singh and Sahakari Samiti prior to passing of the award. The Notifications were quashed by the Single Bench of this court. The Division Bench reversed the judgment of the Single Bench and finally judgment of the Division Bench was upheld by the Apex Court vide its judgment dated 30th March, 1993. The award was passed thereupon on 19th October, 1993.
In between, amendments were made in the Act of 1959. The Amending Act, 1987 was brought but in absence of the assent of the President, it was struck down. The Amending and Validation Act, 1990 was brought subsequently and assent of the President was received in the year 1995. Section 60A was inserted under the Act of 1959 by deleting certain provisions. Section 60A has been referred by the petitioner-company thus quoted hereunder:
"Section 60-A. Transitory provisions for pending matters relating to acquisition of land.--(1) Notwithstanding anything otherwise contained in Sub-section (1) of Section (25 of 35) [CW-11938/2016] 52, where, in any matter relating to the acquisition of land pending on the date of commencement of the Rajasthan Urban Improvement (Amendment) Act, 1987 (Act No. 29 of 1987) (hereinafter in this section referred to as the date of Commencement), an action, thing or order has been taken, done or made under and in accordance with the provisions of this Act as it stood before the date of commencement, such action, thing or order shall not be re-opened or reviewed or be liable to be challenged on the ground that such action, thing or order was at variance with that provided in the Land Acquisition Act, 1894 (Central Act 1 of 1894) (hereinafter in this section referred to as the Land Acquisition Act) subject, however, that any further proceeding, action or order in such matter conducted, taken or made on or after the date of commencement shall, subject to the other provisions of this section, be made under and in accordance with the Land Acquisition Act.
(2) The amount of compensation or interest or that payable for any other reason shall, in.a matter pending on the date of commencement, be payable under and in accordance with the provisions of the Land Acquisition Act and the money paid prior to the date of commencement shall be deducted from or adjusted against the said amount.
(3) Where in a matter pending on the date of commencement, a notice under Subsection (2) of Section 52 or a notice under Sub-section (1) thereof has been issued or, as the case may be, published,. such notice shall be deemed to be the notification or declaration published or made respectively under Sub-section (1) of Section 4 or, as the case may be, under Sub-section .(1) of Section 6 of the Land Acquisition Act and the declaration or award in such a matter shall be made respectively within a period of one year or, as the case may be, two years from the date of commencement.
(4) Where any land has, prior to the date of commencement, vested in the State Government or its possession has been taken in accordance with the provisions of this Act as it stood before the date of (26 of 35) [CW-11938/2016] commencement, such vesting or possession of land shall not be liable to be challenged on the ground that no amount of compensation was tendered and paid in accordance with Sub-section (3-A) of Section 17 of the Land Acquisition Act subject, however, the such amount shall be tendered and paid within a period of six months from the date of commencement.
(5) In determining the amount of compensation to be awarded in a matter pending on the date of commencement, the market value of the land of the date of which the notice was published in the Official Gazette under Clause (b) of Sub-section (6) of Section 53, as it stood before the date of commencement, shall be taken into consideration, (6) An appeal filed under Section 54 or Section 56 or a dispute referred under Section 55 or Section 59 and pending on the date of commencement shall be decided having regard to the provisions of the Land Acquisition Act."
The provision aforesaid is for transitory period and to save the proceedings initiated under the Act of 1959. Learned counsel for petitioner-company has given specific reference of sub-section (3) of the Section 60A to show that initiation of the proceeding under the Act of 1959 has been taken to be under the Act of 1894. It is in ignorance of the limited application of Sections 4 and 6 of the Act of 1894. The object and purpose of Section 60A is to save the acquisition initiated earlier. If the Notification under Section 52(2) has been issued followed by Notification under Section 52(1) then for the purpose of passing of the award, period of one year or two years, as the case may be, has been given treating as if under sections 4 and 6 of the Act of 1894.
(27 of 35) [CW-11938/2016] It is, no doubt, true that deeming fiction exists but it is for the purpose of reckoning period for further action. If intention of the legislature would have been to take all the proceedings under the Act of 1894 then such a provision could have been made. It is by providing that all the proceedings initiated under the Act of 1959 would be treated to be under the Act of 1894. The provision to that effect has not been made. The deeming fiction cannot result in rewriting of the provision. Sub-section (4) of Section 60A further shows that if possession has been taken then vesting and possession would not be liable for challenge. Section 3 of the Act of 1990 is also relevant and quoted hereunder:
"3. Validation.- Notwithstanding anything contained in any judgment, decree or order or finding of any court, tribunal or Authority to the contrary, any action, thing or order taken, done or made under and in accordance with the provisions relating to acquisition of land contained in the Rajasthan Urban Improvement Act, 1959 (Rajasthan Act 35 of 1959), shall be deemed to be valid and effective as if such action, thing or order has been made, taken or done under the said Act as amended by this Act."
It does not provide that the proceedings initiated under the Act of 1959 is to be treated under the Act of 1894, rather, to be taken or done under the Act of 1959, as amended by the Act of 1990. In view of the above, initiation of the proceedings under the Act of 1959 cannot be termed to be under the Act of 1894 so as to apply the Act of 2013. If it is assumed that Section 60(3) provides for previous action to be under the Act of 1894 then the (28 of 35) [CW-11938/2016] further issue would be about the applicability of the Amending and Validation Act of 1990 on the present case. If it is not applicable then section 60A would have no effect. The issue aforesaid was considered by the Apex Court in the case of Satendra Prasad Jain and Pratap (supra). It was held that after a Notification under Section 52(1), if possession is taken then land would vest in the Government free from encumbrances. In that eventuality, the Amending and Validation Act of 1990 would have no application. The relevant para of the said judgment is quoted hereunder for ready reference-
"11. From the facts narrated hereinabove it is clear that the Central Act was extended to the State of Rajasthan only after the land in question had vested in the State Government with the publication of the notification under Section 52(1) on 10th October, 1984. Once the vesting of the land in the State Government, free from all encumbrances, was completed, the subsequent extension of the Land Acquisition Act, 1894 to the State of Rajasthan and the amendments made by the Amending Acts to the Rajasthan Urban Improvement Trust Act becomes wholly irrelevant and of no consequence. Neither the amendments nor the extension of the Central Act can have the effect, in law or otherwise, of divesting the State of ownership of the land which had already been vested in it."
In the instant case, a Notification under Section 52(2) and 52(1) of the Act of 1959 was issued much prior to the application of the Central Act of 1894 in the State of Rajasthan. It has already noted that initially amendment in the Act of 1959 was made in the year 1987 but the Notification was set aside by this Court being without assent of the President. The Amending and Validation Act was brought in the year 1990, however, it received (29 of 35) [CW-11938/2016] assent of the President on 24 th day of March, 1995. The possession of the land was taken prior to it. In view of the above, the land has vested in the State free from all the encumbrances. The extension of the Act of 1894 would not apply to this case in view of the judgment in the case of Pratap and Satyendra Kumar Jain (supra). The application of the Act of 1894 is sought pursuant to the Amending and Validation Act, 1990 though it becomes irrelevant in the light of the judgment in the case of Pratap (supra).
Learned counsel for petitioners has given reference of the judgment of the Apex Court in the case of Delhi Development Authority Vs. Sukhbir Singh (supra), wherein, earlier judgment in the case of Pune Municipal Corporation (supra) was also considered.
If physical possession of the land is not taken or compensation has not been paid, Section 24 (2) of the Act of 2013 would apply. The difference between Section 24 of the Act of 2013 and 11A of the Act of 1894 has been made in the judgment aforesaid. Section 24(2) of the Act of 2013 provides expression "deemed to have lapsed", whereas, similar expression does not exist under Section 11A of the Act of 1894. The judgment aforesaid was on the issue as to whether Section 24(2) of the Act of 2013 would apply to the proceedings initiated under any other Act than the Act of 1894. It is, no doubt, true that judgment of the Apex Court in the case of Satendra Prasad Jain (supra) has (30 of 35) [CW-11938/2016] been considered to make distinction between Section 11A of the Act of 1894 and Section 24(2) of the Act of 2013. It is also to consider the effect of vesting of the land in the State free from all encumbrances. As against the aforesaid, learned counsel for respondents has made reference of recent judgment of the Apex Court in the case of The Special Land Acquisition Officer, Kiadb Vs. Anasuya Bai (supra).
In any case, Section 24(2) of the Act of 2013 would have no application in the instant case as initiation of the acquisition proceedings is not under the Act of 1894 and it cannot be taken even by deeming fiction. The issue has been discussed even in reference to the Amending and Validation Act of 1990.
Learned counsel for petitioners has made reference of several judgments to show when and how deeming fiction apply. Taking note of the facts of this case and provisions referred above, it cannot be taken to be a case of deeming fiction. It is moreso when Amending & Validation Act, 1990 is of no effect in view of judgment of the Apex Court in the case of Pratap (supra), the Central Act, 1894 would not apply once land vest in the government. Thus application of Section 24(2) of the Act of 2013 cannot be accepted for the reasons given above. Whether physical possession of the land in dispute exists with the petitioner company so as to claim deemed lapse of acquisition (31 of 35) [CW-11938/2016] The issue of physical possession of the land is again a vital issue, though, it has been held that Section 24(2) of the Act of 2013 would not apply to this case thus reference of the possession to claim lapse can be ignored. The issue has, however, been raised by the parties thus needs to be decided. The physical possession of the land measuring 19098 square yards The land aforesaid kept by the petitioner company even after assignment of remaining land to the Sahkari Samiti. It is alleged that possession of the land was not taken from the company at any point of time. A reference of memo of possession has also been given. It is to show that only the representatives of the Sahkari Samitis were present and not of the petitioner company. The notice, as required, before taking possession was not given. The physical possession of the vacant land has been disputed by the side opposite. They have relied on the memo, under which, the possession was taken.
I find that the memo of possession" does not show presence of the representative of the petitioner company, though, possession of the entire vacant land has been shown. The issue aforesaid needs no further elaboration in view of the admission of the petitioner company in their letter dated 23 rd August, 2016 (32 of 35) [CW-11938/2016] enclosed along with the writ petition. It was in response to the notice under Section 72 of the Act of 1982. In the reply to the notice, it was stated that only vacant land was acquired leaving part of the structure/building. It further states that possession of the vacant land was given on 02 nd November, 1993. The reply to the notice given by the petitioner company is quoted hereunder for ready reference :
"Jheku~ ts- Mh- lh- egksn;] t;iqj fodkl izkf/kdj.k t;iqjA fo"k;%& dEiuh ds iqjkus fuekZ.k tks vokfIr ls eqDr gS ds ukfVl fnukad 22@08@2016 ds tokc gsrq le; fn;s tkus okLrsA egksn;] mijksDr fo"k;kUrxZr fuosnu gS fd izkFkhZ QeZ dks fnukad 22@08@2016 dks uksfVl feyk gS fd vkids foHkkx ds izorZu vf/kdkjh tksu u- 1 ds } kjk mDr uksfVl 'kke 6-30 cts fn;k x;k gS] ftlds lEcU/k esa ge iw.kZ :i ls tokc nsuk pkgrs gS ftlds fy, gesa le; fn;s tkus dh d`ik djsaA ;g fd mijksDr [k- u- 188 xzke gFkjksbZ rg- t;iqj dks fnukad 19@10@1993 ds vokfIr ds vokMZ tks ikl fd;k Fkk mlesa lkQ rkSj ls fy[kk gS mDr vkns'k ds vuqlkj dsoy [kkyh Hkwfe dks vokIr dh xbZ Fkh ,oa dCtk QeZ esa Hkh Li"V nf'kZr gS fd Þ[kkyh Hkwfe dh vokfIr fufeZr {ks= NksM+djß gSA vFkkZr~ fufeZr {ks= dks vkids }kjk vokfIr ls eqDr j[kk Fkk ,oa vkids foHkkx }kjk vokIr dh xbZ lEiw.kZ [kkyh {ks= dk HkkSfrd :i ls dCtk Hkh iwoZ esa gh 02@11@1993 dks gh fy;k tk pqdk gSA ,oa mDr fufeZr {ks= [kljk u- 188 esa dEiuh@QeZ ,l- ,e- ,l- bUosLVesUV dkjiksjs'ku izk- fy- dk dCtk fuckZ/k :i ls pyk vk jgk gS ,oa dkuwuh :i ls dkfct gSA vr% vkils uez fuosnu gS fd ge vkids }kjk izsf"kr uksfVl dk iw.kZ :i ls tokc nsuk pkgrs gSA ftlds okLrs 15 fnol dk le; fn;k tkus dh d`ik djsaA izkFkhZ fnukad%& 23@08@2016 LFkku%&t;iqj ,l- ,e- ,l- bUosLVesUV dkjiksjs'ku izk- fy-
t;iqjA izfr layXu%& i) vokMZ fnukad 19@10@1993
ii)dCtk QnZ eqdnek u- 3@13 fnukafdr 02@11@1993"
(33 of 35) [CW-11938/2016] In view of the admission of giving possession of the vacant land on 02nd November, 1993, claim of the petitioner company about their physical possession on the vacant land remain in contradiction. When the acknowledgment above taking over possession has been made, the arguments in reference to the requirement of the notice, etc. remains of no consequence. If that would have been so, it would have been challenged then and there when possession of the vacant land was taken, as admitted. In view of the above, the claim of physical possession on the land of the petitioner company on the vacant land is not made out. In the light of the admission of the petitioner company in their letter dated 23rd August, 2016, I am not required to refer other documents.
The possession of the structures/building In the preceding paras of this judgment, elaborate discussion about transfer of the land to Sahkari Samiti has been made, which includes, the land of Khasra No.188 also. The structure/building exists in the aforesaid Khasra. It is, however, a fact that the possession of structure/building was not taken, which is even reflected in the memo. The petitioner company was even issued notice under Section 72 of the Act of 1982 acknowledging their possession on the structure/building on the area consists of 400 square yards. It may be by holding them to be trespasser but possession of the petitioner company on the structure/building stands proved. It may be for 400 square yards. The issue of locus to challenge the action in reference to the structure has been (34 of 35) [CW-11938/2016] acknowledged. It is in the light of the judgment of the Apex Court in the case of Government of NCT of Delhi (supra). Accordingly, the possession on the structure/building in Khasra No.188 stands proved in favour of the petitioner company. Conclusions In the light of the discussion of the issues framed by this Court, it comes out that the petitioner company has filed this writ petition but applicability of Section 24(2) of the Act of 2013 on acquisition initiated under the Act of 1959 has not been accepted. Thus, the claim of deemed lapse for the vacant land as well as structure/building cannot be accepted so as the challenge to the notice under Section 72 of the Act of 1982.
It is also held that the physical possession on the vacant land measuring 19098 does not exist, rather, as per the admission of the petitioner company itself and "memo", the possession was taken by the respondents. The issue of physical possession of structure/building has been decided in favour of the petitioner company and, therefore, deemed lapse for it alone could have been accepted but Section 24(2) of the Act of 2013 having not been applied to this case, the prayer made in the writ petition cannot be accepted.
(35 of 35) [CW-11938/2016] Accordingly, the writ petition is dismissed with no order as to costs.
(M.N. BHANDARI)J. bnsharma/frbohra