Jagbeer Singh And 9 Others vs State Of U.P. And 3 Others on 26 July, 2017

[Cites 18, Cited by 2]

Allahabad High Court

Jagbeer Singh And 9 Others vs State Of U.P. And 3 Others on 26 July, 2017

Proceedings for acquisition of a large tract of land situated in Village Nistauli, Pargana Loni, District Ghaziabad were initiated by issuance of a notification under Section 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 19651 on 2 August 1997, for a Scheme called Loni Road Bhumi Vikas Evam Grihasth Yojna. This was followed by a declaration made under Section 32 of the Parishad Act on 23 December 2004. The petitioners claim to have purchased the land involved in this petition subsequently by registered sale-deeds executed sometime in 2000/2001/2003/2004/2005. The award was ultimately made on 30 December 2013. This petition has been filed asserting that since neither possession of the land has been taken nor compensation has been paid, the acquisition proceedings will lapse in view of the provisions of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20132. The petitioners have also sought consequential reliefs that the respondents should not take possession of their houses or demolish them and also correct the revenue records in the name of the petitioners by deleting the entries existing in the name of U.P. Awas and Vikas Parishad3.

It is the submission of the learned counsel for the petitioners that the provisions of Section 24(2) of the 2013 Act would apply to acquisitions undertaken under the Parishad Act in view of the provisions of the Section 55 of the Parishad Act and, therefore, as neither possession has been taken nor compensation has been paid, the acquisition will lapse and in support of this contention, learned counsel has placed reliance upon certain decisions that relate to acquisitions made under the provisions of the Land Acquisition Act, 18944 and to which reference shall be made at the appropriate stage.

Sri Srikant, learned counsel appearing for the respondent Parishad and the learned Standing Counsel appearing for the State respondents have, however, contended that the provisions of Section 24(2) of the 2013 Act would not apply to acquisitions made under the provisions of the Parishad Act and in support of this contention learned counsel have placed reliance upon a Division Bench Judgment of this Court rendered in Atul Sharma & Ors. Vs. State of U.P. & Ors.5.

We have considered the submissions advanced by the learned counsel for the parties.

It is not in dispute that the proceedings for acquisition of land in the present case were initiated by a notification dated 2 August 1997 that was issued under Section 28 of the Parishad Act. This was followed by a declaration made under Section 32 of the Parishad Act on 23 December 2004. The petitioners were not the owners of the land at the time of issuance of the notification under Section 28 of the Parishad Act as they claim to have purchased the land subsequently between 2000 and 2005. The award was made on 30 December 2013. The petitioners contend that since neither possession has been taken nor compensation has been paid, the acquisition proceedings would lapse in view of Section 24(2) of the 2013 Act.

It is, therefore, necessary for the Court to first examine as to whether the provisions of Section 24(2) of 2013 Act would apply to the acquisition made under the Parishad Act. For this, it would be appropriate to refer to the provisions of the 2013 Act and the Parishad Act. Section 24(2) of 2013 Act is reproduced below:

"24(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 holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

Section 28 of the Parishad Act refers to notice of housing and improvement scheme, while Section 32 deals with commencement of scheme. These two Sections 28 and 32 have the effect of a notification issued under Section 4(1) and the declaration under Section 6 of the Acquisition Act respectively. Section 55 of the Parishad Act deals with power to acquire land and is as follows:

"55. Power to acquire land.- (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (Act No. 1 of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act.

(2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of land under the Land Acquisition Act, 1894 (Act No.1 of 1894)."

The Schedule to the Parishad Act deals with the modifications in the Acquisition Act as amended in its application to the State of Uttar Pradesh.

In order to appreciate whether the provisions of Section 24(2) of the 2013 Act would apply to acquisitions made under the Parishad Act, it would be useful to first examine whether the provisions relating to acquisition under the Acquisition Act would apply to the Parishad Act since the Acquisition Act was repealed by the 2013 Act.

Act No.68 of 1984 amended the Acquisition Act and the following amendments were made:

"(i) Sub-section (1-A) was inserted in Section 23 whereby an additional amount calculated at the rate of 12% per annum on the market value of land as determined under sub- section (1) of Section 23 has to be awarded by the Court for the period commencing on and from the date of the publication of notification under Section 4(1) in respect of such land to the date of the award of the Collector or to the date of taking possession of land, whichever is earlier.

(ii) The rate of solatium payable under Section 23(2) had been enhanced from 15% to 30%.

(iii) The rate of interest payable of the excess amount of compensation under Section 28 had been enhanced from 6% to 9% per annum when the excess amount is paid within one year of the date on which the Collector took possession of the land and where the excess amount is paid after the expiry of the period of one year interest would be payable @ 15% per annum from the date of expiry of the period of one year.

(iv) .........."

Since there was no corresponding amendment in the Parishad Act, a question arose whether the benefit of the amendments introduced by Act No.68 of 1984 can be extended to the land owners whose land had been acquired under provisions of the Acquisition Act as modified by the Parishad Act.

This issue was examined at length by the Supreme Court in U.P. Avas Evam Vikas Parishad Vs. Jainul Islam & Anr.6 and it was held that while incorporating the provisions of the Acquisition Act in the Parishad Act, the intention of the Legislature was that amendments in the Acquisition Act relating to determination and payment of compensation would be applicable to acquisitions of land for the purpose of the Parishad Act. This would mean that the amendments introduced in the Acquisition Act by the 1984 Amendment Act relating to determination and payment of compensation would be applicable to acquisitions of land for the purposes of the Parishad under Section 55 of the Parishad Act. The observations of the Supreme Court are reproduced below:

"31. Since the present case involves acquisition of land under the provisions of the L.A. Act as applicable under the Adhiniyam it is fully covered by the law laid down by this Court in Nagpur Improvement Trust (supra). Keeping in view the principles laid down in the said decisions of this Court, it has to be held that if the provisions of the Adhiniyam are so construed as to mean that the provisions of the L.A. Act, as they stood on the date of enhancement of the Adhiniyam, would be applicable to acquisition of land for the purpose of the Adhiniyam and that the amendments introduced in the L.A.Act by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provisions of the L.A. Act, as applicable under the Adhiniyam, would suffer from the vice of arbitrary and hostile discrimination. Such a consequence would be avoided if the provisions of the Adhiniyam are construed to mean that the provisions of the L.A. Act, as mended by the 1984 Act, relating to determination and payment of compensation would apply to acquisition of land for the purposes of Adhiniyam. There is nothing in the Adhiniyam which precludes adopting the latter construction. On the other hand, the provisions of the Adhiniyam show that the intention of the Legislature, while enacting the Adhiniyam, was to confer the benefit of solatium @ 15% by modifying Section 23(2) in the Schedule, which benefit was not available under the provisions of the L.A. Act as it was applicable in the State of Uttar Pradesh at the time of enactment of the Adhiniyam. It cannot, therefore, be said that the intention of the Legislature, in enacting the Adhiniyam, was to deny to the landowners the benefits relating to determination and payment of compensation which would be available to them under any amendment made in the L.A.Act after the enactment of the 'Adhiniyam'. We are, therefore, of the opinion that on a proper construction of Section 55 of the Adhiniyam it must be held that while incorporating the provisions of the L.A Act in the Adhiniyam the intention of the Legislature was that amendments in the L.A. Act relating to determination and payment of compensation would be applicable to acquisition of lands for the purposes of the Adhiniyam. This means that the amendments introduced in the L.A.Act by the 1984 Act relating to determination and payment of compensation, viz.. Section 23 (1-A) and Section 23(2) and 28 as amended by the 1984 Act would be applicable to acquisitions for the purposes of the Adhiniyam under Section 55 of the Adhiniyam."

(emphasis supplied) This decision was subsequently followed by the Supreme Court in Nagpur Improvement Trust Vs. Vasantrao & Ors.7, and it was observed:

"48. So far as the U.P. Act is concerned the judgment in U.P. Avas Evam Vikas Parishad vs. Jainul Islam (supra) answers all the questions raised before us. It has been held that so far as the U.P. Act is concerned, the Land Acquisition Act, as modified, stands incorporated in the U.P. Act. However, as a matter of construction it was held that Section 55 of the U.P. Act, while incorporating the provisions of the Land Acquisition Act intended to apply to acquisition made under the U.P. Act the beneficial amendments that may be brought about for determination and payment of compensation, in the Land Acquisition Act, 1894. There was nothing in the U.P. Act which precluded the Court from adopting such a construction, and this was necessary to save the Act from the vice of arbitrary and hostile discrimination."

In Savitri Cairae Vs. U.P. Avas Evam Vikas Parishad & Anr.8, it was sought to be contended by learned counsel for the Parishad that the decision of the Supreme Court in Jainul Islam required re-consideration as the Parishad Act was enacted by the State Legislature whereas the Acquisition Act was enacted by the Parliament and, therefore, the provisions of the Parishad Act could not be said to be ultra-vires Article 14 of the Constitution. Repelling this contention, the Supreme Court observed as follows:

"13. The purpose for acquisition of land both under the Parliamentary Act and the State Act is the same. An order of acquisition is to be passed only by the State. In Nagpur Improvement Trust v. Vithal Rao and Ors., a seven Judges Bench of this Court categorically held that an owner of the land is not concerned with the nature of the public purpose, that is, whether land is acquired for a hospital or for a school or for housing. So long as the acquiring authority and the public purposes wherefore lands are acquired are the same; in view of the fact that provisions have been made for payment of compensation in terms of the provisions of Land Acquisition Act, although acquisition is made under the State Act, but if higher amount of compensation is payable under the latter, such higher amount of compensation will be payable. It was held:

"It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14."

14. It may be, as contended by the learned counsel, that therein this Court was concerned with two enactments of States but the principles laid down therein would be attracted, having regard to the fact that although acquisition is to be made in terms of the Adhiniyam but the procedures laid down therefore under the Land Acquisition Act are to be followed and in both the cases, the acquiring authority is the State.

15. This Court in Jainul Islam (supra) categorically held that the provisions of the Land Acquisition Act is to be read into the provisions of the Adhiniyam.

16. The said question again came up for consideration again before a three Judges Bench in Nagpur Improvement Trust v. Vasant Rao and Ors., [2002] 7 SCC 657. In the said case also, identical contentions were raised but this Court did not find any merit therein. .........."

The Constitution Bench of the Supreme Court in Girnar Traders (3) Vs. State of Maharashtra & Ors.9 (supra), while examining the extent of application of the amended provisions of Act No.68 of 1984 to the Maharashtra Regional and Town Planning Act, 1966, observed that the provisions introduced by Act No.68 of 1984 to the extent that they provide for acquisition of land, payment of compensation and recourse to legal remedies can be read in the provisions of the MRTP Act but not the provisions relating to different time frames and consequences of default thereof including lapsing of acquisition proceedings. The Supreme Court observed that there was no reason to differ with the view earlier taken by the Supreme Court in Jainul Islam (supra) and ultimately in paragraph 191 answered the question referred to the larger Bench in the following manner:

"For the reasons stated in this judgment, we hold that the MRTP Act is a self-contained code. Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of Chapter VII of the MRTP Act but with a specific exception that the provisions of the Land Acquisition Act insofar as they provide different time frames and consequences of default thereof including lapsing of acquisition proceedings cannot be read into the MRTP Act. Section 11A of the Land Acquisition Act being one of such provisions cannot be applied to the acquisitions under Chapter VII of the MRTP Act."

(emphasis supplied) Thus, any provision relating to payment of compensation can be read into the provisions of the Acquisition Act but provisions relating to lapsing of acquisition proceedings cannot be read into the Acquisition Act. Section 11-A of the Acquisition Act deals with lapsing of acquisition and so does Section 24(2) of the 2013 Act.

Learned counsel for the petitioners has also placed reliance upon Section 105 of the 2013 Act and urged that since the Fourth Schedule to the 2013 Act does not exclude the provisions of the Parishad Act, the legislature intended that the provisions of the 2013 Act would apply to acquisitions made under the Parishad Act.

It would, therefore, be pertinent to refer to Section 105 of the 2013 Act which is reproduced below:

"105. Provisions of this Act not to apply in certain cases or to apply with certain modifications. - (1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.

(2) Subject to sub-section (2) of section 106 the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.

(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.

(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament."

The Fourth Schedule contained in the 2013 Act makes reference to 13 Acts but does not make reference to the Parishad Act.

This issue was also considered by a Division Bench of this Court in Atul Sharma. It was sought to be contended that Section 24(2) of the 2013 Act would apply to acquisitions made under the Parishad Act. This contention was repelled by the Division Bench holding that the absence of exclusion of the applicability of the 2013 Act would not necessarily mean that the 2013 Act would apply to the acquisitions made under the Parishad Act. The observations of the Division Bench are as follows:

"The non-inclusion of the 1965 Act in the 4th Schedule to the 2013 Act in terms of section 105 thereof does not necessarily mean that the 2013 Act was extended to be applied in acquisitions under the 1965 Act. The intent of the 2013 Act was to eclipse the anomalies and improve the conditions of payment of compensation to acquisitions made under the Land Acquisition Act, 1894 only. Since the 1894 Act has been repealed, and the 1965 Act continues to exist without any amendment there does not arise any issue of repugnancy or inconsistency. This has to be viewed from another angle. The benefit of deemed lapse is by a fiction under a specific statute. A provision of fiction has to be strictly construed and it cannot be impliedly treated to be incorporated unless the 1965 Act also contemplates any such fiction. It is for this reason that an amendment will have to be expressly brought about in the 1965 Act if the provisions of 2013 Act have to be applied and not otherwise in relation to the procedure of acquisition. A provision of deemed lapse cannot be read into by way of interpretation into 1965 Act without specific amendment therein.

(emphasis supplied) In this connection, the Division Bench also observed that since Section 11-A of the Acquisition Act was held not to be applicable to acquisitions made under the Parishad Act, the same position would exist in regard to Section 24(2) of the 2013 Act and the observations are:

"The other question is can this be construed the other way around by presuming an implied applicability of the 2013 Act merely because section 55 of the 1965 Act incorporates the procedure of acquisition under the 1894 Act. We may put on record that the issue of lapse of an acquisition proceeding under section 11-A of the 1894 Act was specifically held to be not applicable in acquisitions under the 1965 Act in Jainul Islam's case. The same situation exists here where the issue of deemed lapse under section 24(2) is sought to be introduced and read into the 1965 Act. We cannot accept this proposition inasmuch as section 55 of the 1965 Act has not been amended so as to include any provision relating to the acquisition resulting in any lapse as contained in the 2013 Act. Thus, such applicability cannot be implied when it has not been incorporated in the 1965 Act."

(emphasis supplied) The decisions referred to by the learned counsel for the petitioners relating to lapsing of acquisition under Section 24(2) of the 2013 Act when land was acquired under the provisions of the Acquisition Act would, therefore, not come to the aid of the petitioners.

Thus, for all the reasons stated above, it is not possible to accept the contention of the learned counsel for the petitioners that Section 24(2) of the 2013 Act would be applicable to the acquisitions made under the Parishad Act.

In the end, learned counsel for the petitioners submitted that though the award was made way back on 30 December 2013, compensation has not been paid to the petitioners who are the subsequent purchaser of the land that was acquired. It is for the petitioners to file an application before the Special Land Acquisition Officer for payment of the compensation and the Court has no reason to doubt that in case such an application is filed, it shall be decided in accordance with law after hearing the parties concerned.

The writ petition is, accordingly, dismissed with the aforesaid observations.

Order Date :- 26.7.2017 Shahroz (Dilip Gupta,J.) (Dinesh Kumar Singh-I,J.)

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