Rajasthan High Court - Jaipur
State Of Rajasthan vs Sita Ram Son Of Shri Nanag Ram on 20 October, 2020
Bench: Sabina, Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal (Writ) No. 1058/2019
in
S.B. Civil Misc. Writ Review Petition No. 1/2018
in
S.B. Civil Writ Petition No. 8310/2007
1. State Of Rajasthan, Through Secretary, Urban
Development Department, Secretariat, Jaipur.
2. Land Acquisition Officer, Urban Development Scheme,
Jaipur, Room No. 204, J.D.A. Pandit Ram Kishore Vyas
Bhawan, Indira Circle, J.L.N. Marg, Jaipur.
3. Jaipur Development Authority Through Its Secretary,
Pandit Ram Kishore Vyas Bhawan, Indira Circle, J.L.N.
Marg, Jaipur.
----Appellants
Versus
1. Sita Ram Son Of Shri Nanag Ram, Since Deceased
Through
1/1. Mukesh Kumar Meena, Son Of Late Shri Sita Ram
1/2. Rakesh Kumar Meena, Son Of Late Shri Sita Ram
2. Ramji Lal Son Of Shri Nanag Ram, Aged About 45 Years
3. Jagdish Son Of Shri Nanag Ram, Aged About 41 Years
4. Laxmi Narain Son Of Shri Nanag Ram, Aged About 48
Years,
All Residents Of Budhsinghpura, Airport Road, Prabhu
Dayal Marg, Near I.I.H.M.R., Tehsil Sanganer, District
Jaipur.
----Respondents
For Appellant(s) : Anil Mehta, Additional Advocate General, through video conferencing For Respondent(s) : Mr. R.D. Rastogi, Sr. Advocate with Mr. Sarthak Rastogi, Advocate through video conferencing (Downloaded on 21/10/2020 at 09:26:31 PM) (2 of 9) [SAW-1058/2019] HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA Judgment 20/10/2020 Appellant-State has filed the appeal challenging the order dated 11.7.2017 passed by the learned Single Judge, whereby, the writ petition filed by the respondents was allowed.
Learned State Counsel has submitted that the learned Single Judge has erred in allowing the writ petition filed by the respondents. In-fact, the compensation amount was liable to be determined on the date the Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'Act of 1894') had been issued, i.e., on 13.1.2003. Possession of the land in question was taken in the year 2004 after issuance of Notification under Section 6 of the Act of 1894 and 80% of the amount of compensation had already been disbursed to the claimants. As per Section 24(1)(a) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'Act of 2013'), where no award under Section 11 of the Act of 1894 has been made, then all provisions of this Act relating to determination of compensation shall apply. Learned counsel has further submitted that as per Section 113 (2) of the Act of 2013, every order made under the said provision was liable to be laid before each House of the Parliament.
Learned counsel for the respondents, on the other hand, has opposed the appeal and has submitted that the question involved in the present case is no longer res integra. The learned Single Judge rightly held that the compensation was liable (Downloaded on 21/10/2020 at 09:26:31 PM) (3 of 9) [SAW-1058/2019] to be determined in terms of the Act of 2013 and the market value of the land was to be taken as it existed on 1.1.2014. Learned counsel has placed reliance on the judgments of Allahabad High Court as well as the Hon'ble Supreme Court, placed on record with the reply filed by the respondents.
Learned counsel for the respondents has further submitted that so far as Section 113 (2) of the Act of 2013 is concerned, the same was merely directory and not mandatory. In support of his argument, learned counsel has placed reliance on decision of the Hon'ble Supreme Court in M/s. Atlas Cycle Industries Ltd. & Ors. vs. The State of Haryana, (1979) 2 SCC 196, wherein it was held as under:-
"32. From the foregoing discussion, it inevitably follows that the Legislature never intended that non-compliance with the requirement of laying as envisaged by sub-section (6) of Section 3 of the Act should render the order void. Consequently non-laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification. Accordingly, we answer the aforesaid question in the negative. In view of this answer, it is not necessary to deal with the other contention raised by the respondent to the effect that the aforesaid notification being of a subsidiary character, it was not necessary to lay it before both Houses of Parliament to make it valid."
Facts in the present case are not in dispute. Notification for acquisition of land in question under Section 4 of the Act of 1894 was issued on 13.1.2003. Notification under Section 6 of the Act of 1894 was issued on 5.10.2004. Possession of the land was taken from the respondents in the year 2004. 80% of the amount of compensation was paid to the respondents on 29.11.2005. However, when the respondents filed the writ petition and till the (Downloaded on 21/10/2020 at 09:26:31 PM) (4 of 9) [SAW-1058/2019] decision of the writ petition, no award was passed by the Collector. Admittedly, the award has been passed by the Collector on 1.2.2018.
The question that requires consideration in the present case is that when no award has been passed on the date of coming in force of the Act of 2013, then what would be the date for determining the amount of compensation. The question involved in the present appeal is no longer res integra. The same question came up for consideration before Allahabad High Court in case titled Krishna Autar & 5 Ors. vs. State of U.P. & 3 Ors. (Writ C No. 44720 of 2016) decided on 18.4.2017 (Annexure- R/3), wherein it was held as under:-
"We have considered the rival contentions and perused the record.
Admittedly, the notification for land acquisition was issued under the Act 1894 which now stands repealed w.e.f. 01.01.2014 when the Act of 2013 came into force.
It may be relevant at this stage to refer to Section 24 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 which is relevant for purpose of adjudication of the controversy before us.
"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases:-
(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 1( of 1894)-
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2)Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated (Downloaded on 21/10/2020 at 09:26:31 PM) (5 of 9) [SAW-1058/2019] under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act." Sub-section 1 of Section 24 of 2013 Act provides that if the land acquisition proceedings have been initiated under the provisions of 1894 Act but award has not been made under Section 11 of the said Act then all the provisions of the new Act relating to determination of the compensation shall apply.
From a perusal of the record we find that the Special Land Acquisition Officer while declaring the award has taken into account the date of notification under Section 4 of the Act, 1894 as the cut off date for determining the market value. The stand taken by the respondents is same has been done in accordance with the directions issued by the Collector in pursuance of the Government Order dated 01.06.2015 issued by State of U. P. as well as Circular Order dated 10.06.2015 issued by Commissioner and Director, Land Acquisition Directorate, Board of Revenue, U. P. Lucknow.
In our considered opinion the Government Order dated 01.06.2015 providing that the date of notification under Section 4 of Land Acquisition Act, 1894 shall be the cut off date for determining the market value for the purposes of compensation where the award is being declared after enforcement of the new Act is not liable to be sustained in view of D. O. No. 13013/01/2014-LRD (Pt.) dated 26.10.2015 issued by central government in exercise of power conferred by Section 113 of the Act of 2013.
For a ready reference, Section 113 of the Act of 2013 is extracted hereunder:-
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(6 of 9) [SAW-1058/2019] "113 Power to remove difficulties. - (1) If any difficulty arises in giving effect to the provisions of this part, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty:
Provided that no such power shall be exercised after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament."
In an identical situation an issue was raised by Government of Maharashtra seeking clarification which is extracted hereunder:-
"For calculation of market value, under section 24(1)
(a), reference date should be 01.01.2014 (commencement of RFCTLARR Act, 2013) or date of issuing preliminary notification under Land Acquisition Act, 1894."
In exercise of power conferred by Section 113 of the Act of 2013 the Government of India issued the above referred D. O. No. 13013/01/2014-LRD(Pt.) dated 26.10.2015 which reads as under:-
"The reference date for calculation of market value, under section 24(1)(a) should be 01.01.2014 (commencement of RFCTLARR Act, 2013), as the Section reads "in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply. Under section 26 reference date is date of preliminary notification, but section 24 is a special case of application of the Act in retrospective cases, and a later date of determination of market value is suggested (i.e. 01.01.2014) with a view to ensure that the land owners/farmers/affected families get enhanced compensation under the provisions of the RFCTLARR Act, 2013 (as also recommended by Standing Committee in its 31st report)."(Downloaded on 21/10/2020 at 09:26:31 PM)
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The Government of India forwarded the aforesaid
directions to all the Principal Secretaries of the States and Union Territories for information and necessary actions.
In our considered view the order issued by the Central Government in exercise of powers conferred by Section 113 of the Act 2013 is required to be implemented uniformly by all the State Governments and Union Territories including the State of U. P. There is no reason why different cut off date should be applied in the State of U. P. for determining the market value, once the Government of India has clarified that date for calculation of market value under Section 24 (1) (a) should be 01.01.2014 from which date Act 2013 was enforced.
In view of the aforesaid facts and circumstances, the impugned Government Order dated 01.06.2015 by the State of U. P., consequential circular dated 10.06.2015 issued by the Commissioner and Director, Land Acquisition Directorate, Board of Revenue, U. P. Lucknow as well as Order dated 05.12.2015 passed by Collector Moradabad and Order dated 07.12.2015 passed by Special Land Acquisition Officer, Moradabad are not liable to be sustained and hereby quashed. As a result the award dated 22.03.2016 passed by Special Land Acquisition Officer, Moradabad ( Annexure-12 to the Writ Petition) on the basis of the aforesaid Government Order and the consequential Circular and orders also stands quashed.
A writ of mandamus is issued commanding the respondents to prepare a fresh award after determination of the market value of the land in dispute as on 01.01.2014 as per D. O. of the Central Government dated 26.10.2014. Such determination shall be made by the Collector/Land Acquisition Officer within a period of two months from the date of production of a certified copy of this order and payment would be released accordingly within a period of four weeks thereafter.
The writ petition, accordingly, stands allowed. However, in the facts and circumstances, we do not make any order as to cost."
Against the said order, Muradabad Development Authority approached the Hon'ble Supreme Court and Special Leave Petition was dismissed by the Apex Court vide order dated 14.11.2017 (Annexure-R/4).
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(8 of 9) [SAW-1058/2019] Another order of the Hon'ble Supreme Court passed on an Interlocutory Application No. 4 in Civil Appeal No. 4821/2016 titled Aligarh Development Authority vs. Megh Singh & Ors, decided on 12.2.2019 has been placed on record as Annexure- R/5. While disposing of the Interlocutory Application, it has been held as under:-
"Having heard learned counsel for all the parties, we find that the Allahabad High Court has taken a consistent view that the State be made to follow the Central Government's direction issued under Section 113 of the 2013 Act. Thus, in 'Ishan International Educational Society v. State of U.P. and Ors.' decided on 09.05.2017, a Division Bench of the High Court, after referring to the aforesaid direction in paragraph 11 of the judgment, went on to hold:
"21.The writ petition is, accordingly, disposed of with a direction to the Special Land Acquisition Officer to re- determine the amount of compensation payable to the petitioner under the provisions of the 2013 Act by treating 1 January 2014 as the date on which the market value of the land should be determined. This exercise should be completed expeditiously and preferably within a period of three months from the date a certified copy of the order is filed before the Special Land Acquisition Officer."
From this judgment, a three Judges' Bench of this Court, on 09.07.2017, dismissed a special leave petition. Apart from the dismissal of the special leave petition, a review petition was dismissed on 05.12.2017.
A reasoned judgment dated 05.02.2019 in 'Hori Lal v. State of Uttar Pradesh & Ors.' noticed in paragraph 12 thereof, that the State, in its counter affidavit filed to a writ petition in the High Court, has placed reliance on the order of the Central Government issued under section 113 of the 2013 Act and contended that the compensation payable to the appellant would be determined on the basis of market value as it was prevalent on 01.01.2014. This being the case, this Court recorded as follows:
"20. We, therefore, find no good ground to accept the submission of the learned counsel for the appellant when he contended that the date for determining the (Downloaded on 21/10/2020 at 09:26:31 PM) (9 of 9) [SAW-1058/2019] compensation should be the date on which the Land Acquisition Officer passed the award. This argument does not have any basis and is, therefore, not acceptable for the simple reason that such date is not provided either in the old Act, 1894 or in the Act, 2013.
21. Indeed, how the compensation is required to be determined and with reference to what date, is provided under the Act and admittedly the date suggested by the learned counsel is not the date prescribed either in the old Act or the new Act. This submission has, therefore, no merit and deserves to be rejected. It is accordingly rejected."
Given the fact that the State itself has in other cases relied upon the Central Government's order under Section 113 and stated that compensation in similar cases should not be on the basis of the section 4 notification which could be 10-15 years before, but on the footing, that it should be recorded as 01.01.14 in all cases, we dispose of this interlocutory application by setting aside the Award dated 05.11.2016 and directing the learned Special Land Acquisition Officer, Aligarh, to redetermine the compensation on the footing that the section 4 notification must be deemed to be as on 01.01.2014. The Special Land Acquisition Officer, Aligarh, shall redetermine the compensation payable within a period of eight weeks from this judgment.
The interlocutory application stands disposed of accordingly."
Since in the present case, the question involved is no longer res integra and is covered by the decisions mentioned above, we are of the considered opinion that the learned Single Judge had rightly allowed the writ petition filed by the respondents. In view of the decisions reproduced above, there is no force in the arguments raised by the learned State Counsel.
Accordingly, the appeal is dismissed.
(CHANDRA KUMAR SONGARA),J (SABINA),J
Anil Makwana /34
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