Gujarat High Court
Mahmadtarik Akbarali Khoja vs State Of Guajrat & 2 on 5 November, 2014
Author: Jayant Patel
Bench: Jayant Patel, C.L. Soni
C/SCA/5470/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5470 of 2005
With
SPECIAL CIVIL APPLICATION NO. 12047 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL Sd/-
and
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
=========================================
1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
===========================================================
MAHMADTARIK AKBARALI KHOJA
Versus
STATE OF GUAJRAT & 2
================================================================
Appearance:
MR MEHUL S SHAH, ADVOCATE for the Petitioners
MR RUTVIZ OZA, ASSTT GOVT PLEADER for the Respondent(s) No. 1-2
MR NIKHILESH J SHAH, ADVOCATE for the Respondent(s) No. 3
================================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE C.L. SONI
Date : 05/11/2014
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) Page 1 of 8 C/SCA/5470/2005 JUDGMENT
1. As in both the petitions, common questions arise for consideration, they are being considered simultaneously.
2. Short facts of the cases appear to be that on account of heavy earthquake in Bhuj, as there was damage to various properties, respondent No.1 decided to construct D.P. Road for rehabilitation of the residents of Bhuj town. It was inter alia decided to acquire the land under the Land Acquisition Act, 1894 (hereinafter shall be referred as 'the Old Act'). Process was also undertaken to apply urgency clause but the same was not materialized. In the meantime, notification under Section 4 of the Old Act dated 23.2.2004 was published in the newspaper viz. 'Kutch Mitra' on 12.3.2005. Thereafter, notification under Section 6 of the Old Act dated 7.6.2005 was published. Before the order of inquiry under Section 9 and award under Section 11 of the Old Act was passed, the petitioners preferred petitions for challenging the land acquisition proceedings qua the land bearing Survey Nos.3080 and 3081/1 in the first petition and 3081/2 in the second petition of City Survey Ward No.3. In the first petition, being Special Civil Application No.5470 of 2005, this Court vide order dated 29.3.2005 while issuing notice, directed that the respondent authority shall not dispossess the petitioner from the land in question. Similar order also came to be passed in Special Civil Application No.12047 of 2005 on 22.6.2005. The matters have remained pending before this Court and as per the affidavit-in-reply filed on behalf of the Land Acquisition Officer dated 21.7.2014, possession of the land in question has not been taken over. It is undisputed position that after the notification under Section 6, which is stated to have been published on 6.8.2006 and 9.8.2006, no award under Section 11 of the Old Act has been passed by the respondent authority. It is under these circumstances, present petitions have come up for hearing before this Court.
Page 2 of 8C/SCA/5470/2005 JUDGMENT
3. We have heard learned counsel Mr. Mehul Shah for the petitioners in both the petitions, learned Assistant Government Pleader Mr. Oza for the State authority and Mr. N.J. Shah for respondent- Bhuj Area Development Authority.
4. At the outset, it was submitted by learned counsel Mr. Shah for the petitioners that on account of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter shall be referred as 'the New Act') which has come into force from 1.1.2014, proceedings would lapse as per Section 24(1) of the New Act. It was submitted that the acquisition is pertaining to the year 2005 and even if award was passed and possession was not taken over for a period of 5 years as per Section 24(2) of the New Act, the proceedings would lapse. He submitted that taking the same analogy as in the present case, period of 5 years has already expired even after declaration under Section 6 of the Old Act, the proceedings should lapse under the New Act.
5. Learned counsel Mr. Shah alternatively submitted that even if it is considered that under Section 24(1) of the New Act, since the award has not been passed, proceedings under the Old Act may continue then also, by virtue of the provisions of Section 11A, the proceedings would lapse since no award has been passed within a period of two years from the date of declaration under Section 6 of the Old Act.
6. Whereas, learned counsel appearing for the respondents submitted that as the award has not been passed under the Old Act, by virtue of the provisions of Section 24(1), proceedings under the Old Act for acquisition of the land would not lapse. On the aspect of contention under Section 11A of the Old Act, it was submitted that on account of the interim stay granted by this Court, award has neither Page 3 of 8 C/SCA/5470/2005 JUDGMENT been passed nor the possession has been taken over. Learned counsel for the respondents submitted that therefore, the proceedings have not lapsed. If the interim relief is vacated, the respondents will be in a position to proceed further for determination of compensation as per the New Act. It was therefore, submitted that challenge to the acquisition may not be accepted but at the most, the petitioners would be entitled to compensation as per the New Act and if direction is issued to that effect, the respondents cannot have any objection if acquisition as per the Old Act, which is under challenge in the present petitions, is maintained.
7. In order to appreciate the contention, we may first refer to the provisions of Section 24 of the New Act, which read 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) 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, Page 4 of 8 C/SCA/5470/2005 JUDGMENT 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.
8. The Apex Court had an occasion to interpret the above-referred Section in the case of Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and others reported in AIR 2014 SC 982, wherein at para 10 and 11, it was observed thus:-
10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24(1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed.
11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act 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 the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act.
9. In the present case, we are not concerned with the situation of a case where award was passed and therefore, we find that Section 24(2) of the New Act may not be applicable. Since in the present case, award has not been passed, we are of the view that Section Page 5 of 8 C/SCA/5470/2005 JUDGMENT 24(1) of the New Act would apply. As per Section 24(1) of the New Act read with the above-referred observations of the Apex Court in a case where no award under Section 11 is made, the provisions of the New Act shall apply relating to the determination of compensation. To say in other words, proceedings under the Old Act may continue except for compensation under the New Act. Such would mean that the provisions of the Old Act may continue for the purpose of considering the legality and validity of the acquisition proceedings and/or for continuation of the land acquisition proceedings. In our view, as in the present case, award has not been passed under the Old Act, it cannot be said that by virtue of the provisions of the New Act, the proceedings would lapse but at the same time, the provisions of the Old Act may continue for the purpose of examination of the legality and validity of the land acquisition proceedings. Section 11A of the Old Act reads as under:-
11A. Period within which an award shall be made- The Collector shall make an award under section 11 within a period of two years from the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencements.
Explanation: In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.]
10. Aforesaid shows that if no award has been made within a period of two years from the date of publication of declaration, the acquisition of the land shall lapse but, with explanation that in computing the period of two years, during which action or proceeding to be taken pursuant to the said declaration is stayed by an order of a Court, the said period shall be excluded. It is true that after Page 6 of 8 C/SCA/5470/2005 JUDGMENT declaration under Section 6 of the Old Act, the matters remained pending before this Court but benefit of such period of pendency of the matters is not automatic but such benefit may be available to the authority only if there is an order passed by the Court for staying of the declaration. In the present case, as recorded by us hereinabove, limited stay was granted qua the possession to be taken over from the land owner. There was no stay against declaration under Section 6 of the Old Act nor there was any stay granted by the Court against the passing of the award. As such, the interim relief, if considered as it is, would mean that the land acquisition proceedings were not stayed until the stage of taking over of possession. Stage of taking over of possession would accrue as per the provisions of Section 16 after the award and not prior thereto. Under these circumstances, it can be said that this Court by interim order neither stayed declaration under Section 6 nor stayed or prohibited the passing of award by the Land Acquisition Officer. The contention raised by learned counsel for the respondents on the basis of the averments made in the affidavit- in-reply filed by the Under Secretary of the Revenue Department dated 24.7.2014, more particularly para 4 that the Hon'ble Court vide order directed the parties to maintain status-quo is not correct. There is no order passed for status-quo but as recorded earlier, this Court granted limited interim relief against taking over of possession of the land.
11. In view of the aforesaid facts situation, we find that the case of the respondents could not be said as covered by explanation to Section 11A of the Old Act. It is an admitted position that the award has not been passed. It can also not be disputed that from the date of declaration under Section 6 of the Old Act, period of two years has expired. Declaration under Section 6 of the Old Act was made in the year 2005 and in any case, the period would expire in 2007. Under these circumstances, by virtue of the provisions of Section 11A of the Page 7 of 8 C/SCA/5470/2005 JUDGMENT Act, it can be said that the land acquisition proceedings under the Old Act have lapsed.
12. In view of the aforesaid position of lapsing of the land acquisition proceedings under the Old Act, we find that further challenges to the legality and validity of the action of the authority under Section 4 and/or under Section 5A and/or under Section 6 are not required to be examined since examination of such contention may result into academic exercise and no useful purpose would be served.
13. In view of the above, it is declared that the proceedings for the land in question have lapsed by virtue of the provisions of Section 11A of the Old Act, i.e. the Land Acquisition Act, 1894. Further, it is observed and clarified that present decision shall not operate as a bar to the respondents in taking proceedings under the New Act, i.e. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, if otherwise permissible in law.
14. Both the petitions are allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
Sd/-
(JAYANT PATEL, J.) Sd/-
(C.L.SONI, J.) Omkar Page 8 of 8