Krishna Autar And 5 Others vs State Of U.P. And 3 Others on 18 April, 2017

[Cites 12, Cited by 5]

Allahabad High Court

Krishna Autar And 5 Others vs State Of U.P. And 3 Others on 18 April, 2017

Petitioners have approached this Court challenging the Government Order dated 01.06.2015 issued by the Up-Sachiv, U.P. Government (Revenue Department-13), Lucknow, Circular dated 10.06.2015 issued by the Commissioner and Director, Land Acquisition Directorate, Board of Revenue, U. P. Lucknow, Order dated 05.12.2015 passed by Collector Moradabad, Order dated 07.12.2015 passed by Special Land Acquisition Officer, Moradabad and the consequential award dated 22.03.2016 passed by Special Land Acquisition Officer, Moradabad.

In pursuance of the aforesaid Government Order, Circular and consequential orders a writ of mandamus has also been claimed to command the respondents to pay the compensation to the petitioners in consonance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 treating the cut off date for determination of compensation as 01.01.2014 when the Act 2013 was enforced.

Aforesaid relief is being claimed in the background of the following facts:-

Petitioner nos. 1, 2 and 3 and predecessor of petitioner nos. 4 and 5 were co-owner in possession of Plot No. 293 situate in Village-Sonakpur, Tehsil and District- Moradabad. The aforesaid plot alongwith certain other land was subject matter of acquisition under the provisions of Land Acquisition Act, 1894. Notification under Section 4 (1)/17 of the Land Acquisition Act 1894 was issued on 16.08.1994 and declaration was made on 27.10.1995. The notifications were challenged by the petitioners by filing two writ petitions i.e. Writ-C No. 37125 of 1995 (Krishna Autar and others Vs. State of U. P. and others) and Writ-C No. 3553 of 1996 (Sri Naresh Chandra Agrawal and others Vs. State of U. P. and others).

A counter affidavit had been filed by Moradabad Development Authority wherein it admitted that in view of interim order passed in the said two writ petitions, the award in respect of the land involved in the dispute i.e. Plot No. 293 was not prepared. The aforesaid two writ petitions were disposed of by a common judgement and order dated 07.08.2015 by making following observations:-

"Learned counsel for the petitioners contends that in view of the aforesaid averment made in the counter affidavit which is the undisputed position, the petitioners are entitled for payment of compensation under Act 30 of 2013 in view of Section 24 (1)(a) and prayer is being confined to that extent. Section 24(1)(a) reads as under:

"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)..................."

The aforesaid provision clearly stipulates that in case, an award under Section 11 of the Land Acquisition Act has not been made then after enforcement of the new Act, all provisions of the new Act relating to determination of compensation shall become applicable. Learned Standing Counsel as well as Shri P.K. singh appearing for the respondents do not dispute the legal position.

It is an admitted case on behalf of the respondents that the award in respect of the land in dispute in the present two writ petitions has not been prepared.

In such view of the matter, the petitioners are entitled for determination and payment of compensation under the provisions contained in Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

In view of the above, this writ petition stands disposed of with a direction to the respondents to prepare the award in respect of the land involved in the present two writ petitions in accordance with the provisions contained in the said Act."

In compliance of the aforesaid order passed by this Court Collector Moradabad vide letter dated 05.12.2015 required the Moradabad Development Authority to make available a sum of Rs.16,00,924,00/- for being paid as compensation alongwith other expenses towards acquisition charges etc. A perusal of the said letter goes to show that the amount of compensation was determined by doubling the rate of Rs. 198.70/- per square meter which was paid as compensation under the award dated 24.04.1997 in respect of other land covered under the notification. Thus, cut off date for determining the compensation was taken as 16.08.1994 which was the date of issuance of notification under Section 4 (1)/17 of the Land Acquisition Act 1894. Subsequently, the Special Land Acquisition Officer issued a letter dated 07.12.2015 to the petitioner indicating that in view of the Government Order dated 10.06.2015 the date of notification under Section 4 is to be treated as cut off date for determining the compensation. Accordingly, award was prepared and published on 22.03.2016 whereby the compensation has been determined on the basis of the rate prevalent on the date of notification under Section 4 of the Land Acquisition Act, 1894.

In the background of the above facts, the issue for adjudication is what should be the cut off date for determining the market value of the land in case the acquisition proceedings have been initiated under the Act of 1894 but no award under Section 11 of the said Act was made till the enforcement of the Act of 2013.

Learned counsel for the petitioners contends that the date of enforcement of the Act of 2013 i.e. 01.01.2014 should be treated as cut off date for calculating the market value of the land for the purposes of determination of the compensation. Learned counsel for the petitioners to support the contention relies upon the opinion given by the Government of India, on a clarification on the issue sought by State of Maharashtra.

In reply Sri P. K. Singh appearing for Moradabad Development Authority vehemently contended that the award has been prepared in accordance with the circular issued by State Government providing that the cut off date for the purpose of determining the compensation shall be the date of issuance of notification under Section 4 of Act of 1894. It is also submitted that the clarification of the Central Government referred to by learned counsel for the petitioners is in respect of the State of Maharashtra and is not applicable in the State of U. P. 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 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:-

"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)."

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.

Order Date :- 18.4.2017 AKT

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Allahabad High Court