Jammu & Kashmir High Court - Srinagar Bench
Gulzar Ahmad Akhoon & Others vs Ut Of J&K & Ors on 16 November, 2022
Bench: Sanjeev Kumar, Wasim Sadiq Nargal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 1274/2020
Reserved on: 27.10.2022
Pronounced on: 16.11.2022
Gulzar Ahmad Akhoon & others .... Petitioner/Appellant(s)
Through:- Mr. Shafqat Nazir, Advocate
V/s
UT of J&K & ors. .....Respondent(s)
Through:- Mr. Sheikh Mushtaq, AAG
CORAM:HON'BLE MRS. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MRS. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
Sanjeev Kumar-J
1. The petitioners claim to be residents of village Wathoora, Budgam and are aggrieved of the communication of the Financial Commissioner, Revenue, bearing no. FC-LS/LA-4577/2017 dated 13.08.2020 whereby the Divisional Commissioner, Kashmir has been conveyed the approval of the competent authority to the adoption of rates of compensation in respect of different villages in District Budgam for construction of Semi Ring Road around Srinagar City. The petitioners also claim Writ of Mandamus to the respondents to initiate fresh land acquisition proceedings in respect of the land estate of the petitioners situated in Village Wathoora, Budgam, strictly as per the Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013 [―2013 Act‖].
2. The case of the petitioners as put up in this writ petition is that the acquisition proceedings initiated in terms of Notification dated 15.03.2017 2 WP(C) No. 1274/2020 issued under Section 4 of the J&K Land Acquisition Act, 1990 [―1990 Act‖) have lapsed by afflux of time in view of the provisions contained in Section 11(B) of the 1990 Act. The petitioners say and submit that in the year 2017, the respondent no. 5 initiated process of acquisition of land in their village and, accordingly, issued Notification under Section 4 of the 1990 Act vide its Notification no. DCB/LAS/016/F-330/1121-29 dated 15.03.2017 which was subsequently followed by Notifications under Section 6 and 7 of the 1990 Act. The Notifications were in respect of land measuring 239 Kanals, 06 marlas and 136 sqfts. situated in village Wathora. It is the grievance of the petitioners that though their land was sought to be acquired in the year 2017 and Notification under Section 6 was issued on 08.08.2017, no further steps were taken to assess the compensation and pass final award within the stipulated period. It is the specific averment made by the petitioners that the respondents neither adopted the mode of private negotiation for adoption of rates nor did they follow the law of acquisition while acquiring the land of the petitioners and others similarly situated with the petitioners for constructing the Semi Ring Road. The petitioners submit that as mandated by the provisions of Section 11 (B) of the 1990 Act, a final award is required to be passed within two years from the date, Notification under Section 6 is issued. The respondents, it is contended, have failed to fulfill the mandate of Section 11(B) and as a consequence whereof the acquisition proceedings initiated by the respondents have lapsed by afflux of time.
3. On being put on notice, the respondents have filed their reply affidavits in which the respondents besides taking couple of preliminary objections to the maintainability of the writ petition, have contested the 3 WP(C) No. 1274/2020 case of the petitioners on merits as well. It is submitted by the respondents that in the year 2016, the Project Director, PIU, Srinagar, National Highway Authority of India (NHIA) vide its communication dated 20.04.2016 placed an indent for acquiring land for construction of Semi Ring Road around Srinagar City. The land was to be acquired in forty five (45) villages of District Budgam including the village of the petitioners. The process of acquisition of land was set in motion by respondent no. 5 vide his Notification dated 15.03.2017 issued under Section 4 of the 1990 Act. This Notification was for acquiring land measuring 239 Kanals 6 Marlas and 136 sfts. The Notification was given due publicity through Directorate of Information and was also circulated through concerned Tehsildars for information of the land owners. The Government vide Notification no. 355-Rev(LAJ) of 2017 dated 08.08.2017 issued declaration under Sections 6 and 7 of the 1990 Act which was followed by a Notification issued under Section 9 and 9A of the said Act. The objections were received from the interested persons from time to time and the same were given due consideration the detail whereof is given in the award. It is further submitted that having regard to the nature of project of construction of the Semi Ring Road around Srinagar City and the urgency of the matter involved, the Government invoked Section 17 of the 1990 Act and, accordingly, issued Notification bearing no. 86- Rev(LAJ) of 2018 dated 14.02.2018 for taking over possession of the land for public purpose. With a view to work out fair and just compensation for the land to be acquired, meetings of Collectors and Assistant Collectors of the District were held under the chairmanship of Deputy Commissioner, Budgam and the case was submitted to the competent authority for 4 WP(C) No. 1274/2020 approval of rates. The competent authority conveyed approval of rates @ Rs.38.00 lac per kanal vide Communication No.Rev/LAK/43/2017 dated 10.08.2020 and it is only on receipt of requisite approval, a final award was passed on 11.08.2020. It is contended by the respondents that the concerned Collector, Land Acquisition and the authorities concerned have scrupulously followed the mandate of land acquisition law then applicable and have passed the award. Not only the acquired land has been taken over but the compensation has also been disbursed to majority of land owners/interested persons.
4. By way of preliminary objection, the respondents contend that the remedy of the petitioners, if they are aggrieved of the fixation of rates of compensation, lies before the District Court by invoking the provisions of Section 18 of the 1990 Act. The petitioners have not sought any reference under Section 18 of the 1990 Act and have without any reason or justification invoked the extraordinary jurisdiction of this Court for determining the disputed questions of fact. It is, thus, submitted that in the face of the remedy available under Section 18 of the 1990 Act, the writ petition for the reliefs claimed is not maintainable.
5. Having heard learned counsel for the parties and perused the material on record, we are of the opinion that decision of this petition hinges upon the determination of following questions:-
i) Whether the acquisition proceedings initiated by the Collector Land Acquisition by issuing notification dated 15th March, 2017 under Section 4 of the 1990 Act have lapsed on account of failure of the Collector to make an award under Section 11 within a period of two 5 WP(C) No. 1274/2020 years from the date of publication of declaration under Section 6 of the 1990 Act?
ii) Whether the provisions of Section 11-B of 1990 Act would apply to the land acquisition where the Government invokes special powers in case of urgency vested by Section 17 of 1990 Act?
iii) What is the impact on the land acquisition proceedings initiated and pending under the 1990 Act by its repeal and replacement by 2013 Act, which became applicable to the Union Territory from the appointed day i.e. 31st October, 2019 when the Jammu & Kashmir Reorganization Act, 2019 came into effect?
iv) What is the effect on the rights of the land losers, who have approached this Court to assail the acquisition proceedings as having been lapsed under Section 11-B after passing of the final award and where the majority of land losers impacted by the acquisition proceedings have also accepted the compensation?
6. With a view to appreciating the questions framed above, it is necessary to first understand the scheme of 1990 Act, which was the law for acquisition of land needed for public purposes within the territories comprising the erstwhile State of Jammu & Kashmir.
7. On the day, Section 4 notification was issued by the Collector to notify his intention to acquire land for public purpose, the 1990 Act was in operation. All proceedings in the instant case right from issuance of Section 4 notification till passing of the tentative award were all done when the 1990 Act was in operation but the final award in the instant case 6 WP(C) No. 1274/2020 was passed on 11th August, 2020 when the 1990 Act stood repealed and replaced by the 2013 Act.
8. In the erstwhile State of Jammu & Kashmir, the compulsory acquisition of land needed for public purposes was regulated and governed by the 1990 Act and Section 3(g) whereof contained inter alia, an expansive definition of expression ―public purpose‖. Part-II of 1990 Act would deal with acquisition. Section 4 gave power to the Collector to notify through public notice and in government gazette etc, the land in any locality that was needed or was likely to be needed for any public purpose. With the issuance of Section 4 notification it was lawful for the authorized officer of the Government to enter upon, survey and take levels of such land notified for public purpose and take all other necessary measurements to ascertain whether the land was adopted for such purpose. Section 5 provided for payment of compensation to the land owners or persons interested in the land for all necessary damage to be done while entering upon, surveying and taking levels or doing other necessary acts under Sub Section 2 of Section 4. Section 5-A would provide an opportunity to person/persons interested in the land notified under Section 4(1) to object to the acquisition of the land. The objections, if any, were to be made before the Collector in writing and the Collector was under an obligation to give the objector an opportunity of being heard either in person or by pleader or by a person authorized by him. The Collector would hear all such objections, make such further enquiry, if any, and submit the case for the decision of the Government together with the record of proceedings held by him and report containing his recommendations on the objections. As is provided under Section 5-A, 7 WP(C) No. 1274/2020 decision of the Government on the objections would be final. The Government would, thereafter, take a call as to whether the land was indeed required for public purpose and if the Government was satisfied, it would issue a declaration under Section 6 of the Act declaring that the land was needed for public purpose.
9. After making declaration under Section 6, the Revenue Minister or some officer duly authorized by the Government in this behalf would, in terms of Section 7, direct the Collector to take order for acquisition of the land. Section 9 provided for issuance of public notice to the persons interested to file their claims to the compensation within fifteen days after the publication of notice. Simultaneously, a notice would be issued to Head of the Department for which the land was to be acquired providing him an opportunity to state his objection, if any, to the measurement made or to the tentative compensation that might be assessed.
10. Section 11 of the 1990 Act would deal with enquiry and award by the Collector. Sub Section (1) of Section 11 provided for making tentative assessment of the compensation to be paid for the land to be acquired. Sub Section (2) would provide that where the amount of compensation tentatively assessed under Sub Section (1) exceeds the amount specified by the Government by notification, the Collector would refer the record of the case along with statement of tentative assessment of compensation for the approval of the Revenue Minister or an officer specially empowered by him in this behalf. Upon receipt of the approval from the Revenue Minister or an officer specially empowered by him of the determination of 8 WP(C) No. 1274/2020 proper value of the property to be acquired, the Collector would make his award under his hand of----
i) The true area of the land;
ii) The compensation payable for the land; and
iii) The apportionment of the said compensation among all the
persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him.
It is specifically provided in Sub Section (5) of Section 11 that the Collector shall make his award strictly in tune with the directions of the Revenue Minister or an officer specially empowered by him with respect to value of land and any award made in contravention thereof would be void.
11. Section 11 also provided for making of award by the Collector on the basis of private negations by following the procedure laid down in Sub Sections (6), (7) and (8) of Section 11. Section 11-A would deal with correction of clerical error or arithmetical error. Section 11-B was inserted in the 1990 Act by Section 2 of Act IV of 1997.
12. The petitioners have invoked Section 11-B of the 1990 Act to contend that due to failure of the Collector to pass award within a period of two years from the date of publication of declaration under Section 6 of the 1990 Act, the acquisition proceedings have lapsed and, therefore, de novo acquisition proceedings under the 2013 Act should be initiated, should the Government still need their land for public purpose. It is, 9 WP(C) No. 1274/2020 therefore, necessary to set out below Section 11-B to appreciate the contention of learned counsel for the petitioner in proper perspective:-
―11-B. Period within which an award shall be made.-- The Collector shall make an award under section 11within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of land shall lapse :
Provided that in case where the said declaration has been published before the commencement of the State Land Acquisition (Amendment) Act, 1997, the award shall be made within a period of two years from such commencement.
Explanation :--In computing the period of two years referred to in this section, the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed by an order of a court, shall be excluded.‖
13. From a plain and fair reading of Section 11-B, it unequivocally transpires that the Collector is obligated to make his award under Section 11 within a period of two years from the date of publication of declaration and if he fails to do so within the stipulated period, the entire acquisition proceedings would lapse. In the instant case, Section 6 declaration was made on 8th August, 2017 and, therefore, it was obligatory for the Collector to make his award on or before 7st August, 2019. The final award in the instant case, in terms of Section 11, was passed on 11.08.2020 i.e. beyond the period of two years. Ordinarily, if we go by the plain language of Section 11-B and appreciate its provision in isolation, the award passed in the instant case on 11.08.2020 i.e. after more than two years of the issuance of Section 6 declaration, should be declared as having lapsed but Section 11-B cannot be understood and appreciated in isolation and without any reference to the context. 10 WP(C) No. 1274/2020
14. Section 17 would deal with special power in case of urgency and provides for taking possession and consequent vesting of land under acquisition even prior to the making of final award. Once the land of the land losers, which is subject matter of acquisition, vests in the Government by operation of Section 17, the lapse of proceedings, if any, under Section 11-B would be of no consequence. The 1990 Act does not anywhere provide for reversion of vested land in favour of the land losers in the process of acquisition. For better appreciation, Section 17 is also set out below:-
―17. Special powers in case of urgency.-- In cases of urgency, whenever the Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days, from the publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for public purposes. Such land shall thereupon vest absolutely in the Government, free from all encumbrances :
Provided that, the Collector shall not take possession of any building or part of a building under this sub-section, without giving to the occupier thereof at least 48 hours' notice of his intention to do so, or such longer notice as may be reasonably sufficient, to enable such occupier to remove his movable property from such building without unnecessary inconvenience ; and Provided in every case under this section the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crop and trees (if any) on such land and for any other damage sustained by them caused by such dispossession and not excepted in section 24; and in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained :
Provided also that in the case of any land to which, in the opinion of the Government, the provisions of sub-section (1) are applicable, the Government may direct that the provisions of 11 WP(C) No. 1274/2020 section 5-A shall not apply, and if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, sub- section (1).‖
15. Section 17 is not a standalone provision but is subject to the provisions of Section 17-A, which, for facility of reference, is also reproduced hereunder:-
―17-A. Payment of compensation before acquisition proceedings are completed.-- Before taking possession of any land under section 17, the Collector shall, without prejudice to the provisions of the said section, --
(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested and entitled thereto ; and
(b) pay it to them unless prevented by some one or more of the contingencies mentioned in section 32 of the Act, and where the Collector is so prevented, the provisions of section 32 shall apply as they apply to the payment of compensation under that section.‖
16. From a conjoint reading of Section 17 and 17-A reproduced above, it becomes abundantly clear that in cases of urgency the Government may direct the Collector to take possession of any land needed for public purpose within fifteen days from publication of notice under Section 9(1) even though, no final award, in terms of Section 11, is made. Such land of which possession is taken over by the Collector under Section 17 would vest absolutely in the Government free from all encumbrances.
17. Section 17-A would maintain that the Collector shall tender and pay eighty (80) per centum of the compensation for such land as estimated by him to the persons interested and entitled thereto before taking possession under Section 17. It would, thus, mean that the Collector, if so directed by 12 WP(C) No. 1274/2020 the Government under Section 17, is empowered to take over the possession of any land needed for public purpose without making a final award, yet he shall not take possession of such land unless he tenders and makes payment of 80% of the compensation to the land losers. In short, the vesting of the land needed for public purpose absolutely in Government free from all encumbrances would take place only when the following requirements are completely met:-
i) There should be specific direction to the Collector by the Government that the land is required for public purpose and that it was a case of urgency.
ii) The Collector shall assess a tentative compensation and tender and make payment of 80% of the compensation so assessed or estimated to the persons interested and entitled thereto.
iii) It is upon tendering and making the payment of 80% of the compensation to the land losers, the Collector shall take possession of the land needed for public purpose.
iv) It is only when (i), (ii) and (iii) are complied, the land will vest absolutely in the Government free from all encumbrances.
18. Once the aforesaid procedure is scrupulously followed, the failure of the Collector to make final award within a period of two years from the date of declaration under Section 6 would not affect or divest the land vested in the Government under Section 17 of the 1990 Act.
19. Part-III of the 1990 Act would deal with reference to the Court and procedure thereof. Elaborate provisions were contained in Part-III providing remedy to land losers, who would not accept the award and 13 WP(C) No. 1274/2020 seek reference from the Collector for determination of the Court their objections whether it was with respect to measurement of the land, amount of compensation or the persons to whom it was payable or it pertained to apportionment of compensation among the persons interested. We would not go in details of the rest of the provisions of the 1990 Act for the reason that it may not be relevant for the determination of questions framed above.
20. The provisions similar to Section 17, 17-A and 11-B of the 1990 Act contained in the Central Land Acquisition Act, 1894 [―1894 Act‖] were subject matter of debate before Hon'ble the Supreme Court in Delhi Airtech Services Pvt. Ltd. and Another v. State of U.P. and another, 2022 SCC Online SC 1048. For better appreciation of what is held by the Supreme Court in the aforesaid judgment, it is necessary to set out below pari materia provisions of the two Acts.
S.No. State Land Acquisition Act, Central Land Acquisition
1990 ["1990 Act"] Act, 1894 ["1894 Act"]
1. Section 11-B Section 11-A
2. Section 17 Section 17
3. Section 17-A Section 17(3A)
21. The Delhi Airtech Services Private Limited was a matter which was initially heard by a Division Bench consisting of Justice A.K. Ganguly and Justice Swatanter Kumar. There was divergence of opinion between the two learned Judges. Hon'ble Justice A.K.Ganguly arrived at the conclusion that taking over possession of the land without complying the requirements under Section 17(3A) of the 1894 Act was illegal and in violation of statutory provisions, which automatically violates the 14 WP(C) No. 1274/2020 constitutional guarantee under Article 300A of the Constitution. Whereas Hon'ble Justice Swatanter Kumar was of the view that Section 11A of Central Act, 1894 shall have no application to the acquisition under Section 17. He, however, opined that default in complying with Section 17(3A) would not invalidate or vitiate the entire acquisition proceedings. In view of the divergence of opinion between the two Hon'ble Judges, Hon'ble the Chief Justice of India referred the matter to the larger Bench consisting of three Hon'ble Judges of the Supreme Court. After thorough discussion and debate, 3-Judge Bench in Delhi Airtech Services Pvt. Ltd. reported as above, sided with the view of Hon'ble Justice A.K.Ganguly. The discussion made by the Hon'ble Bench in para 12, 13, 14, 15, 16 and 17 is relevant and clinches authoritatively the issue raised before us by the learned counsel appearing for the parties in this case. For facility of reference, paragraph Nos. 12 to 17 of the judgment are reproduced hereunder:-
―12. So far so good, the question however is as to whether the rigour of Section 11A of Act, 1894 will apply when the appropriate Government exercises its special power in cases of urgency, which does not contemplate the same procedure as in the normal acquisition process noted above. In this regard also this Court in Yusufbhai Noor mohmed Nandoliya (supra) has held Section 11A is applicable to acquisition under Section 17, though without detailed discussion. From the provision of Section 17 reproduced supra, it is seen that the acquiring authority will be entitled to take possession without taking recourse to the procedure which is otherwise provided under Section 16 of Act, 1894 wherein it contemplates the passing of an award before taking possession. But under Section 17 of Act, 1894, possession is permitted to be taken even before the award is passed. Though such power was absolute earlier, sub- section (3A) was inserted by Act 68 of 1984, w.e.f 15 WP(C) No. 1274/2020 24.09.1984 whereby the precondition imposed before taking possession is that 80% of the estimated compensation is to be tendered and paid to the persons interested in the land. The tendered amount should be paid unless prevented by one or more of the contingencies mentioned in Section 31(2) of Act, 1894. It would necessarily mean that Section 31 will come into play and the 80% of the estimated compensation amount, though no award is passed, will have to be tendered and paid to the persons interested. If tendered, but not able to pay due to valid reasons, it is to be deposited in Court. The word employed in sub-section (3A) of Section 17 of the Act, 1894 is ―shall‖ and it is to be tendered and paid ―before taking possession‖. Hence it cannot be understood as providing any discretion to the acquiring authority. In fact, the last sentence of sub-section (1) of Section 17 uses the word ―thereupon‖ with respect to vesting. This word ―thereupon‖ is correlated to taking possession and payment in terms of sub-section (3A) is a sine qua non for taking possession. Therefore (1) payment of 80% (2) taking over possession thereafter and (3) vesting of land in the government take place in a sequence. Absent anyone of these in the sequence, the emergency provision fails. It is a prerequisite condition to acquire and take possession of the land since such acquisition is permitted by exempting the requirement of the procedure under Section 5A and possession is permitted to be taken prior to an award being passed under Section 11 of Act, 1894.
13. That apart, sub-section (4) to Section 17 of Act, 1894 provides the discretion to the appropriate Government to waive the application of the provisions of Section 5A and make the declaration under Section 6 in respect of the land at any time after the initial publication of the notification under Section 4 of Act, 1894. This makes it clear that even in a case where the appropriate Government exercises its power to invoke the special power in case of urgency, all other procedure contemplated under the Act except the requirement under Section 5A of Act, 1894 is to be complied. Therefore, after issue of the initial notification under Section 4 read with Section 17(1) and on taking 16 WP(C) No. 1274/2020 possession after issue of notice under Section 9, the declaration under Section 6 of Act, 1894 is to be made so as to complete the process of acquisition, which indicates that the objection to acquisition of land shall alone stand muted and not the right to compensation which is to be paid in strict compliance of the requirement in that regard.
14. Hence, insofar as payment of compensation for the acquired land even if it is acquired under Section 17 of Act, 1894, it is evident that an award as contemplated under Section 11 of Act, 1894 is required to be passed so as to determine the compensation payable. Since sub-section (3A) to Section 17 mandates payment of 80% of the estimated compensation, such amount paid would get included in the amount to be determined and offered through the award. In that context it is clear that Section 17(4) contemplates, that the declaration is to be made under Section 6 even when an urgency provision is invoked and an award under Section 11 is to be passed to determine the compensation.
15. However, on a careful composite perusal of all the provisions noted above, it is evident that the requirement to tender and pay 80% of the estimated compensation before taking possession assumes significance so as to carve out an exception for non- applicability of ‗lapsing' as contemplated under Section 11A of Act, 1894. This is so, since the terms ―vesting absolutely‖ and ―lapsing‖ cannot co-exist and cannot go hand in hand. Post amendment w.e.f 24.09.1984, two elements have been inserted in Section 17 for the land to vest absolutely in the Government for public purpose even before the award is passed. One, is that possession should be taken. The other is, by inserting sub-
section (3A) it has been made mandatory to tender payment of 80% of estimated compensation before taking possession. Therefore, 80% of the estimated compensation, the payment of which only if tendered and paid, the vesting would become absolute and in such event the consequence of lapsing in respect of absolutely vested land cannot occur and as such, in that circumstance alone Section 11A though applicable will not take effect. The right of the land loser 17 WP(C) No. 1274/2020 would be to enforce passing of award which will include the balance 20% of compensation even if it is beyond two years and get adequately compensated in terms of Section 23 and 34 of Act, 1894 for the delay if any.
16. But it is a different matter altogether, when Section 17(1) is invoked but the requirement thereunder which is a pre-requisite condition is not complied. As noted, sub- section (3A) has been inserted w.e.f. 24.09.1984, whereunder it is made mandatory to tender and pay 80% of the estimated compensation before taking possession. Therefore, even if possession is taken, such possession cannot be considered as legal so as to vest the land absolutely if the pre-requisite condition for payment of 80% before taking possession is not complied. In such circumstance, by legal fiction it looses its character as an acquisition under Section 17 and since the absolute vesting does not take place, it will lapse if the further process is not complied and the award is not passed within two years from the date of declaration. However, even when the pre- condition is not complied, if the land loser does not challenge the acquisition and/or taking of possession as illegal, but concedes to the position, the possession taken does not become per-se illegal and the vesting will be absolute and in such event it cannot be considered to have lapsed until the land loser exercises the right. We consider it so, since, both Section 11A and sub-section (3A) to Section 17 of Act, 1894 were inserted in Act, 1894 to enable the land losers to exercise their right conferred on them. As such, the said right is to be exercised by the land loser and none other, not even the acquiring authority or beneficiary nor would the said provision become automatically applicable unless it is triggered by the land loser.
17. Therefore, we are of the considered view that Section 11A though applicable to the cases of acquisition initiated under Section 17(1) of Act, 1894 the consequence of it will not affect the case where the land has absolutely vested on compliance of sub-section (3A) to Section 17 of Act, 1894 and 80% of estimated compensation is tendered and paid. 18 WP(C) No. 1274/2020
Hence, when there is a challenge by the land loser, each case will have to be considered on its own merits to determine whether the pre-requisite condition to tender and pay as contemplated under sub-section (3A) is made before possession is taken. If in the case concerned the mandatory prerequisite is not complied, such acquisition will loose its character as being under Section 17 and if the award is not passed within two years from the date of the declaration, it will lapse and not otherwise. The benefit of said provision is available only to be invoked by the land loser and cannot be invoked by the acquiring authority to claim lapse by pointing to non-compliance since the ‗vice' of non- compliance cannot be permitted to be converted into a ‗virtue'.‖ (underlined to lay emphasis)
22. From a reading of the above extract of the judgment, it is now trite law that Section 11-B of the 1990 Act, which is pari materia with Section 11-A of the 1894 Act, is, though, applicable to the cases of acquisition initiated under Section 17(1) where urgency provisions are invoked by the Government, the consequence of it will not affect the case where the land has absolutely vested in the Government in compliance with Section 17A of the State Act and 80% of the estimated compensation is tendered and paid before taking over possession. It is also clarified by the Supreme Court in the Delhi Airtech Services Pvt. Ltd. (supra) that benefit of the lapse of acquisition proceedings provided under Section 11-A of the Central Act (11-B of the State Act) can be invoked by the land loser and not by the acquiring authority. The lapse of proceedings by inaction of the acquiring authority to pass final award within a stipulated period cannot be taken advantage of by the acquiring authority as in the words of Hon'ble Supreme Court ―‗vice of non-compliance cannot be permitted to be converted into a virtue‖. Hon'ble the Supreme Court by rendering the 19 WP(C) No. 1274/2020 judgment in Delhi Airtech (Supra) has put quietus on the controversial issue of applicability of Section 11-A of the Central Act, 1894 (Section 11-B of the 1990 Act) to the cases where the Government has invoked the special powers, in case of urgency, vested by Section 17.
23. When the case set up by the petitioners in the instant petition and question Nos. (i) and (ii) are examined in light of the legal position alluded to herein above, it is axiomatic that Section 11-B of the 1990 Act would have no application when special powers, in case of urgency, vested in the Government under Section 17 are invoked. This is, however, subject to the Collector complying with the provisions of Section 17-A before taking over the possession under Section 17 viz. the Collector tenders and makes the payment of 80 per centum of the estimated compensation of the land required to be taken possession of under Section 17 to the persons interested and entitled thereto.
24. Indisputably, in the instant case, the Government invoked Section 17 of the 1990 Act and issued notification No. 86-Rev(LAJ) of 2018 dated 14.02.2018 and directed the Collector to take possession of the land needed for public purpose situated in various villages including the Village Wathoora. The Collector was asked to take over the possession within fifteen days from the publication of notification under Section 9(2) of 1990 Act subject to fulfillment of conditions prescribed under Section 9(2) and Section 17-A of 1990 Act and Rule 63 of the Land Acquisition Rules framed thereunder.
25. From a careful perusal of the photocopy of the relevant record produced by Mr. Sheikh Mushtaq, learned AAG, we could find that in the 20 WP(C) No. 1274/2020 instant case the possession of the land was taken over and handed over to the National Highway Authority of India (Indenting Department) on 13.03.2018. There is, however, no evidence on record as to the assessment of estimated compensation, tendering and payment of eighty per centum thereof to the persons interested and entitled thereto. There is one tabulated statement on record, which does not bear any date and number and a perusal whereof indicates that only one interested person has reportedly received land compensation disbursed to him from time to time till 22nd January, 2019 i.e. before the expiry of two years from the date of issuance of Section 6 notification. Rest of the land losers of village Wathoora have received compensation after the passing of the final award. From the record we could not come to a definite conclusion as to whether this land compensation offered to one land loser of the village was 80% of the estimated compensation worked out by the Collector.
26. In view of the incomplete record provided by the Collector concerned, we are left with no option but to hold that in the instant case there has been no strict compliance of Section 17-A and, therefore, possession taken over by the Collector and handed over to the Indenting Department does not tantamount to vesting of the land absolutely in the Government and free from all encumbrances. Since vesting of land has not taken place in accordance with the provisions of Section 17 and 17-A of the 1990 Act, as such, Section 11-B will come into play and render the entire acquisition proceedings as lapsed by efflux of time.
27. The discussion so far made answers question No.(i) and (ii) explicitly. This brings us to question Nos. (iii) and (iv). 21 WP(C) No. 1274/2020 Question No.(iii)
28. As stated above, the land acquisition proceedings in the instant case were initiated in the year 2017 when the 1990 Act was in operation and holding the field. The Act remained in force till coming into force of the Jammu & Kashmir Reorganization Act, 2019 [―the Act of 2019‖]. Section 95 of the Act of 2019, whereby central laws enumerated in Table- 1 of the Fifth Schedule to the Act of 2019 were made applicable to the Union Territories of J&K and Ladakh, is relevant and is reproduced hereunder:-
―95. (1) All Central laws in Table -1 of the Fifth Schedule to this Act, on and from the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh.
(2) All other laws in Fifth Schedule, applicable to existing State of Jammu and Kashmir immediately before the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh,‖
29. From a reading of Section 95 of the Act of 2019, it is abundantly clear that all Central Laws in Table-1 including the 2013 Act have been made applicable w.e.f. 31.10.2019, the day appointed for coming into force of various provisions of the Act of 2019. Table-3 of Fifth Schedule enumerates list of the laws applicable in the State of Jammu & Kashmir, which includes the 1990 Act as well, which have been repealed w.e.f.
31.10.2019. It is, thus, evident that the land acquisition law of the State i.e. the 1990 Act was repealed w.e.f. 31.10.2019 and simultaneously the 2013 Act was made applicable. Since the Act of 2019 was not exhaustive on all matters and all aspects, as such, the Parliament, in its wisdom, conferred power on the President to remove difficulties that may arise in 22 WP(C) No. 1274/2020 giving effect to the provisions of the Act of 2019. Section 103 is engrafted in the Act of 2019 to achieve this purpose. The President, in the exercise of powers conferred by Section 103 of Act of 2019, has issued the Jammu & Kashmir Reorganization (Removal of Difficulties) Order, 2019 vide S.O. No.3912(E) dated 30.10.2019. Clause 2(13) deals with the consequences of repeal of laws enumerated in Table-3 of the Fifth Schedule. Clause 2(13) of the J&K Reorganization (Removal of Difficulties), Order 2019 reads thus:-
―2. Removal of Difficulties The difficulties arising in giving effect to the provisions of the principal Act have been removed in the following manner, namely:-
........................
........................
13) The Acts repealed in the manner provided in TABLE -3 of the Fifth Schedule, shall not affect--
(a) the previous operation of any law so repealed or anything duly done or suffered there under;
(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed;
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.‖
30. From a reading of Clause 2(13) of the J&K Reorganization (Removal of Difficulties) Order, 2019 with Section 6 of the General Clauses Act, it is evident that the repeal of 1990 Act by the Act of 2019 shall not affect its previous operations, anything done or suffered thereunder nor shall it affect any rights, liabilities, privileges, obligation acquired, accrued or incurred under the repealed laws, which stand saved and would continue under the repealed Act.23 WP(C) No. 1274/2020
31. In the instant case, proceedings initiated under the 1990 Act had reached the stage of making final award under Section 11. At the cost of repetition, it may be pointed out that the Government, in the instant case, invoked Section 17 vide its notification dated 14.02.2018 and took over possession on 13.03.2018.
32. The observations of the Supreme Court in the case of Bharat Petroleum Corporation Ltd. (BPCL) and others v. Nissar Ahmad Ganai and others, Civil Appeal No.6778-6780 of 2022 dated 12.10.2022 made in para 5.3 are noteworthy and are set out below:-
―5.3 Even otherwise considering clause 2(13) of the Order, 2019 read with Section 6 of the General Clauses Act under which the rights, liabilities, privileges, obligations acquired, accrued, or incurred under the repealed laws stands saved and would be continued under those Acts (in the present case the Act, 1990), it is to be noted that Order, 2019 is subsequent to the Act, 2013. Therefore, it is to be presumed that while enacting the Order, 2019 and providing Clause 2(13) of the Order, 2019, the legislature was conscious of the provisions of the earlier Act (Act, 2013). Under the circumstances also, with respect to the lands acquired under the State Act of 1990, Section 24(1)(a) of the Act, 2013 shall not be applicable at all.‖
33. It is in the same judgment that the Hon'ble the Supreme Court while dealing with the provisions of Section 24(1)(a) of the 2013 Act concluded that the provisions Section 24(1)(a) of the 2013 Act shall not be applicable with respect to the acquisition proceedings under the 1990 Act. It was clarified by the Supreme Court that Section 24 of the 2013 Act deals only with the lapse of land acquisition process initiated under the 1894 Act in certain cases with the repeal of said Act by the 2013 Act. The Supreme Court has made it clear that Section 24 shall have no application 24 WP(C) No. 1274/2020 to the 1990 Act i.e. the land acquisition law applicable to the State of J&K prior to the coming into effect of the Act of 2019.
Question (iv)
34. Once we hold that in law land acquisition proceedings in the instant case would lapse on 07.08.2019 on account of failure of the Collector to pass final award within a period of two years from the date of issuance of Section 6 declaration and that invocation of Section 17 by the Government is of no consequence in view of the failure of the Collector to adhere to Section 17-A, the passing of the final award on 11th August, 2020 cannot jettison the consequences. It may be pointed out that the provisions of Section 11-B are for the benefit of the land losers and to punish slackness of acquiring authority and, therefore, if the land losers do not avail of the remedy and waive of their right to challenge the acquisition proceedings by accepting the compensation, as per the final award, that may have been passed after the cutoff date, without any protest, they after having acquiesced are precluded from challenging the same on the ground that the award is passed after the proceedings had lapsed. However, the land losers, who approach the Government or the Collector or the Court and challenged the continuation of the proceedings beyond the period stipulated in Section 11-B shall, if they succeed in their challenge, be entitled to have the entire acquisition proceedings declared lapsed.
35. What would be the consequences of obtaining such declaration from the competent Court of law is a question very explicitly and aptly discussed by the Supreme Court in the case of Delhi Airtech Services 25 WP(C) No. 1274/2020 Pvt. Ltd. (supra). The Supreme Court opined and held that in such cases ordinarily there shall be no reversion of land to the land losers on account of lapse of acquisition proceedings. However, having regard to the facts and circumstances of each case, the Court should mould the relief properly, so that a balance between the two sides is struck.
36. The Supreme Court observes and holds that in the present like situation, it would be appropriate and in the interest of justice for the Court to direct the Collector Land Acquisition to re-assess the compensation and make fresh award qua the petitioners having regard to the provisions of the Land Acquisition Law in force at the time of issuance of Section 4 notification. The Supreme Court has further clarified that though the compensation shall be assessed as per the law applicable to acquisition proceedings but shall determine the market value prevalent as on the date of issuance of final award.
37. Before we conclude, operative portion of the judgment passed by the Supreme Court in Delhi Airtech Services Pvt. Ltd. (supra) i.e. para 27 deserves to be reproduced hereunder:-
―27. In the result, we pass the following order:
(i) The provision contained in Section 11A of Act, 1894 shall be applicable to cases in which the acquiring authority has not complied with the requirement of sub-section (3A) to Section 17 of Act, 1894 by tendering and paying eighty per centum of the estimated compensation before taking possession since possession in such cases cannot be considered to be taken in accordance with law and the vesting is not absolute.
(ii) If the requirement is complied and possession is taken after tendering and paying eighty per centum, though there is need to pass an award and pay the balance compensation 26 WP(C) No. 1274/2020 within a reasonable time, the rigour of Section 11A of Act, 1894 will not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting.
The right of land loser in such case is to enforce passing of the award and recover the compensation.
(iii) In the instant case though Section 11A of Act, 1894 has become applicable, in the changed circumstance we deem it proper to mould the relief instead of holding the acquisition to have lapsed. Hence for the reasons stated above, we direct as follows:
(a) The respondents shall construe 09.06.2008 as the relevant date and determine the market value prevailing as on that date applying the yardstick under Act, 1894 in respect of the acquired land.
(b) To calculate the statutory benefits on such amount including interest, the same shall be determined by taking into consideration the date of the Section 4 notification dated 17.04.2002 since the appellant was dispossessed on 04.02.2003 pursuant to the same.
(c) The date on which the fresh award is passed pursuant to this judgment and communicated shall be the date of cause of action for seeking enhancement of compensation if the appellant is dissatisfied with the quantum of compensation offered.
(d) The compensation determined in this case shall not give the cause of action to any other land loser whose land is acquired under the same notification to seek re-
determination of compensation.
(e) The appellant shall be entitled to the cost incurred in these proceedings.‖
38. As is held by the Supreme Court in the aforesaid judgment, we are of the considered view that the acquisition proceedings insofar as these pertain to the petitioners' land would lapse in view of the discussion on the legal issues made herein above in the light of the judgments of the Supreme Court. However, in the instant case as well, the relief to be granted to the petitioners deserves to be molded. The case of the 27 WP(C) No. 1274/2020 petitioners is not an isolated and stand-alone one. The respondents have by virtue of notification issued under Section 4 of the 1990 Act, which culminated into passing of award on 11.08.2020, notified land measuring 239 kanals 6 marlas and 136 sqft situate in village Wathora for acquisition. The land has been acquired for undertaking a very prestigious project viz. construction of the Semi Ring Road around Srinagar City, which, if constructed, will ease the traffic congestion on the internal roads of the Srinagar City, which, in turn, would help developing Srinagar city a smart city.
39. Not only the acquired land has been taken over by the National Highway Authority of India but a large portion of the ring road has already been constructed. Major portion of the land belonging to the petitioners and other villagers acquired by the respondents has already been put to beneficial use. Out of hundreds of land losers of the village Wathoora and adjoining villages, who are affected by the land acquisition, only few have approached this Court complaining the lapse of the proceedings and passing of the award thereafter. As a matter of fact, the final award stood passed on the date, the writ petition was filed by the petitioners but no specific challenge has been laid. Without going into the technicalities of not challenging the final award and having regard to the legal position adumbrated above, we are of the view that the ends of justice would meet, if we pass following order:-
i) The provisions of Section 11-B of the 1990 Act shall not be applicable to the cases where the Government has invoked Section 17 and the Collector has scrupulously complied with the 28 WP(C) No. 1274/2020 requirements of Section 17-A by tendering and making payment of 80 per centum of estimated compensation before taking possession, for, the land needed for public purpose would vests in the Government free from all encumbrances only when pursuant to invocation of Section 17, 80% of the estimated compensation is paid to the land losers and possession is taken over. We need to clarify that taking over the possession need not be taking over actual physical possession and it would suffice, if acquiring authority or indenting department formally takes over the possession evidenced by record and some activity thereon is undertaken. The possession of land losers even after payment and tendering of 80% of the estimated compensation and formal take over by the acquiring authority/indenting department shall be treated as trespassers.
ii) Applicability of Section 11-B of the 1990 Act, however, shall not stand excluded by mere resort to Section 17 of the 1990 Act unless the procedure provided therein and prerequisites contained in Section 17-A are scrupulously complied with.
iii) In the instant case, we have found that Section 11-B of the 1990 Act is attracted in view of the failure of the Collector to strictly comply with the provisions of Section 17-A. We have found no evidence on record as to the assessment of estimated compensation and its tendering and payment to the persons interested and entitled thereto. Ordinarily, we could have declared the proceedings as having lapsed, however, being guided by the judgment of Supreme Court in Delhi Airtech 29 WP(C) No. 1274/2020 Services Pvt. Ltd. (supra), we also deem it appropriate to mould the relief and instead of holding the acquisition proceedings as having lapsed, we direct the respondents as under:-
a) The final award dated 11th August, 2020 insofar as it pertains to the petitioners is set aside.
b) The Collector Land Acquisition, Budgam shall pass fresh award qua the petitioners only and for that purpose shall construe 11th August, 2020 (date of final award) as the relevant date for determination of market value but shall apply the yardsticks for assessment of compensation provided under the 1990 Act in respect of acquired land of the petitioners only. The Collector shall calculate other statutory benefits on such amounts including interest to be calculated and determined by taking into consideration the date of taking over possession i.e. 13th March, 2018.
c) The date on which fresh award is passed in favour of the petitioners pursuant to this judgment and intimated to the petitioners shall be the date of cause of action for seeking enhancement of compensation under the 1990 Act, if the petitioners or any of them is dissatisfied with the quantum of compensation offered.
d) While making payment of compensation assessed in terms of this judgment, the amount of compensation, if any, received by the petitioners shall be taken into account.
e) That the compensation determined in favour of the petitioners pursuant to this judgment shall not give cause of 30 WP(C) No. 1274/2020 action to any other land loser, whose land is acquired under the same notification to seek re-determination of the compensation.
40. The writ petition is disposed of, accordingly along with connected application(s), if any.
41. Record be returned back to the learned counsel for the respondents.
(Wasim Sadiq Nargal) (Sanjeev Kumar)
Judge Judge
SRINAGAR
16.11.2022
Vinod.
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes