Allahabad High Court
Kanti Devi And 7 Others vs State Of U.P. And 4 Others on 12 July, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:138428 Court No. - 29 Case :- WRIT - C No. - 57053 of 2017 Petitioner :- Kanti Devi And 7 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Agarwal,Ravi Anand Agarwal,Shreya Gupta,Vivek Mishra Counsel for Respondent :- C.S.C.,A.S.G.I.,D.S.Chauhan,Shrawan Kumar Dubey,Yuvaraj A.K. Sharma Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Anish Kumar Gupta,J.
1. Counter to the supplementary affidavit filed today, in the Court, is taken on record.
2. Heard Sri Rahul Agarwal and Ms. Shreya Gupta learned Advocates appearing for the petitioners, Ms. Anuradha Sundaram learned Additional Chief Standing Counsel for the State respondents and Sri D.S. Chauhan learned counsel appearing for the Mathura Vrindavan Development Authority.
3. The writ petition is directed against the award dated 01.09.2017 passed by the Special Land Acquisition Officer, Mathura, determining compensation for an area of 8.7459 hectares of acquired land, the acquisition proceeding with respect to which has been upheld by this Court. Some of the admitted facts of the case are relevant to be noted herein below.
4. The acquisition notifications under Sections 4 & 6 of the Land Acquisition Act, 1894 were challenged by the writ petitioners herein along with other co-tenure holders and a bunch of writ petitions challenging Sections 4 & 6 under the Act 1894 for acquisition were dismissed on 02.09.2007. The Special Leave Petition filed by the tenure holders was also dismissed on 08.10.2007.
5. Even after conclusion of the acquisition proceedings, it seems that award for compensation of the land subject matter of consideration herein had not been declared. The other tenure holders including the writ petitioners herein had approached this Court in two Writ Petitions No. 33961 of 2010 and 34700 of 2010. The complete copy of the order sheet of Writ Petition No. 33961 of 2010 has been appended as Annexure- 'SA-3', a perusal thereof indicates that the status quo order in the said writ petition was passed on 08.06.2010. In another Writ Petition No. 34700 of 2010, the interim order directing the parties to maintain status quo was passed on 14.06.2010. Both the writ petitions eventually had been decided together and dismissed vide judgment and order dated 13.04.2011. The Special Leave Petition filed by the tenure holders had also been dismissed on 16.05.2011. The claim of the writ petitioners that the entire proceedings of acquisition lapsed on account of the delay in making the award, had been turned down by this Court and affirmed by the Apex Court.
6. Be that as it may, it is an admitted fact of the matter that after 16.05.2011, even after dismissal of the Special Leave Petition filed by the tenure holders/petitioners herein, award has not been made though there was no legal impediment. We may also note that after dismissal of the Special Leave Petition, in the matter of challenge to the acquisition notifications, vide judgment and order dated 08.10.2007 uptill 08.06.2010 when an interim order of status quo was passed in Writ Petition No. 33961 of 2010, there was no legal impediment in making of the award. It is, thus, evident that delay in making of the award after dismissal of the challenge to the acquisition proceedings, was on the part of the respondents.
7. We may also note that two other Writ Petition Nos. 17496 of 2014 and 17497 of 2014 had been filed by the writ petitioners seeking declaration of the acquisition proceedings having been lapsed in view of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in brief 'Act 2013'). Both the writ petitions were dismissed as withdrawn on 13.10.2017 and there was no interim order.
8. Be that as it may, till the date of promulgation of Act 2013 i.e. on 01.01.2014, the award with respect to the acquired land including the land subject matter of consideration in the instant writ petition, belonging to the petitioners, for a total area of 8.7495 hectares, had not been declared.
9. The submissions of the learned counsels for the petitioners are based on the provisions of Section 24 of Act 2013. Sub-Section (1) of Section 24 in Clauses (a) and (b) has been placed before us to submit that in such land acquisition proceedings, which were initiated under the Land Acquisition Act, 1894 and where no award under Section 11 of the said Act has been made, all provisions of the Act 2013 relating to determination of compensation shall apply. The submission is that only in those cases, where award under Section 11 has been made, the acquisition proceedings initiated under the Act 1894 shall be allowed to continue under the provisions of the 1894 Act, as if the said Act has not been repealed. The contention, thus, is that since with respect to the land in question, no award had been made till the enforcement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, i.e. till 01.01.2014, despite there being no legal impediment, the award under the old Land Acquisition Act, 1894 could not have been declared. The act of non-making of the award of the subject land is attributable to the competent authority.
10. It is further placed before us that surprisingly, enough, the award under challenge has not been declared even in accordance with the provisions of the old Land Acquisition Act, 1894. It is demonstrated that the award in question, made on 01.09.2017, is based on a report of the District Level Committee constituted to determine the valuation of the acquired land for payment of compensation under agreement in accordance with the Karar Niyamawali, 1997. It is placed before us that though the award under challenge refers to the provisions of Section 24 of the Act 2013, but the provisions of Section 24(1) of the said Act has been completely ignored. The award under challenge has been made at the same rate at which the consent award in accordance with the Karar Niyamawali, 1997 had been declared for an area of 59.0831 hectares out of the total acquired land of 67.829 hectares. The submission, is that the respondent / Special Land Acquisition Officer has committed a grave error of law in declaring the award for an area of 8.7459 hectares, as a consent award based on the valuation of the acquired land, assessed by the District Level Committee, though it is categorically recorded in the award itself that despite repeated communications, the tenure holders of the land of an area of 8.7459 hectares did not give their consent.
11. The learned Standing Counsel and the learned counsel appearing for the Development Authority though tried to justify the award under challenge, but could not assail the submissions of learned counsels appearing for the petitioners.
12. The fact remains that the competent authority namely the Special Land Acquisition Officer has failed to declare the award, though there was no legal impediment in making of the award, prior to the enforcement of the Act 2013 with effect from 01.01.2014. Only option before the respondent, thereafter, was to prepare the award strictly in accordance with the provisions of Sub-section 1(a) of Section 24 of the Act 2013. There was no occasion nor any justification for declaration of the award dated 01.09.2017 (for an area of 8.7459 hectares) based on the assessment of valuation by the District Level Committee for determination of compensation for the purpose of payment to the tenure holders, who refused to accept the offer given by the respondent for payment of compensation under Karar Niymawali, 1997.
13. For the aforesaid, the act of the Special Land Acquisition Officer, Joint Organisation, Mathura in preparation of the award based on the determination of valuation of the land in question by the District Level Committee, suffers from grave illegality. In any case, a contested award, i.e. the award which is not to be passed with the consent of the tenure holders, can only be made in accordance with the provisions of the Land Acquisition Act. Under the old Land Acquisition Act, 1894, Section 11 (1) prescribes the parameters for making of an award. Section 11(2) of the Act 1894 deals with the consent award. However, with the promulgation of the Act' 2013 with effect from 01.01.2014, the award was required to be prepared strictly in accordance with the provisions of Sections 26, 27 and 28 of the said Act. The provisions of Sections 20 and 30 of the Act' 2013 are also required to be taken into consideration at the time of preparation of an award. Section 28 of the Act' 2013 provides the parameters, which are to be considered by the Collector in determination of the amount of compensation and reads as under:
"28. Parameters to be considered by Collector in determination of award- In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration--
firstly, the market value as determined under section 26 and the award amount in accordance with the First and Second Schedules;
secondly, the damage sustained by the person interested, by reason of the taking of any standing crops and trees which may be on the land at the time of the Collector's taking possession thereof;
thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;
fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
fifthly, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change;
sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 19 and the time of the Collector's taking possession of the land; and seventhly, any other ground which may be in the interest of equity, justice and beneficial to the affected families."
14. Having carefully gone through the provisions of the Old Land Acquisition Act' 1894 and Act 2013, it is apparent that the award declared on 01.09.2017 does not confirm to the provisions of Section 28 and other relevant provisions of the Act' 2013, as noted above, which were required to be taken into consideration in the name of determination of compensation in a contested award.
15. As to the date for determination of the market value in view of Section 24(1) (a) of the Act 2013, the issue fell for consideration before a Division bench of this Court presided over by one of us, in Writ C No. 30088 of 2022 (Smt. Sabita Sharma and others vs. State of U.P. and others). The question as to what would be the cut off date under the Act' 2013 for applying the provisions of Section 24(1)(a) of the Act' 2013 has been considered and answered therein taking into consideration of the judgments of the Apex Court as also the notification dated 26.10.2015 issued by the Government of India, it was held in paragraphs- 20 to 28 as under:
"19. We may note the provisions of Section 26 of the RFCTLARR Act, 2013, which provides the criteria to be adopted by the Collector in assessing and determining the market value of the land, the relevant clauses (a), (b) and (c) and the proviso to sub-section (1) of Section 26 are extracted hereunder:-
"26. Determination of market value of land by Collector.-
(1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:--
(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or
(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or
(c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher:
Provided that the date for determination of market value shall be the date on which the notification has been issued under section 11."
As per the proviso to sub-section (1), the date of determination of market value for acquisitions under the RFCTLARR Act, 2013 is the date on which the notification has been issued under Section 11 of the RFCTLARR Act, 2013, which provides for publication of preliminary notification, notifying the intention of the appropriate Government to acquire land in any area for any public purpose. Section 11 of 2013 Act is pari materia to Section 4 of the Act, 1894 in the matter of issuance of declaration of preliminary notification of proposal of acquisition. Thus, in a case where acquisition is made after enforcement of the RFCTLARR Act, 2013, i.e. on or after 1.1.2014, there cannot be a dispute about the date of determination of market value for the purposes of computation of compensation. However, there remained an ambiguity with regard to the transitional phase on the applicability of Section 24(1)(a) of the RFCTLARR Act, 2013.
20. On the ambiguity of the date of determination of market value in the land acquisition proceedings initiated under the Land Acquisition Act, 1894, where no award had been made under Section 11 of the Act, 1894 before enforcement of the RFCTLARR Act, 2013, the Central Government had issued a notification dated 26th October, 2015, on the similar issue raised by the Government of Maharashtra. In the D.O. No.13013/01/2014-LRD(Pt), dated 26.10.2015 issued by the Joint Secretary (LR), Government of India, Department of Land Resources, Ministry of Rural Development, copy of which was forwarded to all Principal Secretaries of the States/UTs for information and necessary action, the issues raised by the Government of Maharashtra for calculation of market value under Section 24(1)(a) has been resolved as under:-
S.No. Issues raised by the Government of Maharashtra Opinion of the DoLR
1.
While determining the amount of compensation under Section 27 of the RFCTLAR&R Act, 2013 of Hon'ble Supreme Court's orders are followed or cost of assets have to be separately computed in addition to cost of land?
Under Section 26 of the RFCTLAR&R Act, 2013 market value of land is determined while under section 27, value of all assets attached to the land is added to the market value to determine the amount of compensation. Thus, it is not contradictory to the Supreme Court's orders quoted in the letter of Maharashtra Government.
2. Under Section 24(1), the reference date for calculating 12% interest should be date of preliminary notification under Land Acquisition Act, 1894.
Under section 24(1), the reference date for calculating 12% interest should be date of preliminary notification under Land Acquisition Act, 1894. Department of Land Resources agrees to this, as there is no other reference date, that can be treated as equivalent to date of SIA notification under the RFCTLAR&R Act, 2013.
3. For calculation of market value, under Section 24(1)(a), reference date should be 01.01.2014 (commencement of RFCTLAR&R Act, 2013) or date of issuing preliminary notification under Land Acquisition Act, 1894?
The reference date for calculation of market value, under Section 24(1)(a) should be 01.01.2014 (commencement of RFCTLAR&R 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 RFCTLAR&R Act, 2013 (as also recommended by Standing Committee in its 31st report).
21. From a perusal of the D.O. letter dated 26th October, 2015, issued by the concerned Ministry of the Central Government forwarded to the Principal Secretary of the State of U.P., for information and necessary action, it is evident that the said direction was made in order to remove difficulty arose in giving effect to the provisions of the RFCTLARR Act, 2013, in the matter of calculation of market value under Section 24(1)(a), in the land acquisition proceedings initiated under the Act, 1894. The said directions issued by the Central Government being in exercise of the power under Section 113 of the RFCTLARR Act, 2013 have statutory force and are binding on all the State Government being in view of the power conferred on the Central Government to make such provision or give such directions which are not inconsistent with the provisions of the RFCTLARR Act, 2013, for removal of any difficulty arising in giving effect to the provisions of the RFCTLARR Act, 2013.
22. In view of the statutory character of the D.O. letter dated 26th October, 2015, it is evident that the reference date for calculation of market value under Section 24(1)(a) should be 1.1.2014, the date of commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The said D.O. letter dated further clarifies that under Section 26 of the RFCTLARR Act, 2013 though the reference date is the date of preliminary notification but Section 24 is the special case of application of the Act, 2013 in retrospective cases and a later date of determination of market value, i.e. 1.1.2014 is suggested with a view to ensure that the land owners/farmers/affected families get enhanced compensation under the provisions of the RFCTLARR Act, 2013, in terms of the recommendation of the Standing Committee in its 31st report.
23. In view of the directions contained in the D.O. letter dated 26th October, 2015 issued by the concerned Ministry of Central Government, the reliance placed on the notification dated 1st June, 2015 issued by the Government of U.P. is wholly misplaced.
24. In any case, the said notification of the State Government lost its efficacy with the clarification given by the Central Government by issuing directions under Section 113 of the RFCTLARR Act, 2013 by means of D.O. letter dated 26th October, 2015. This aspect of the matter has not been looked into while making computation of compensation by the Collector in the award made on 4.2.2023, wherein the date of determination of market value had been treated as 13.1.1995, the date of publication of the notification under Section 4/17 of the Act, 1894, in accordance with the provisions of Section 11 of the Act, 1894 read with Section 26(1) of the RFCTLARR Act, 2013. The direction issued by the Central Government under Section 113 of the RFCTLARR Act, 2013 has been completely ignored.
25. We may further note the decisions of the Division Benches of this Court in Hori Lal vs. State of U.P. and 3 others2; Prahlad Singh and 6 others vs. State of U.P. and 2 others3; Krishna Autar and 5 others vs. State of U.P. and 3 others4 and Ishan International Educational Society Thru' Director vs. State of U.P. & 3 others5 which have taken the same view by considering the directions contained in D.O. letter dated 26th October, 2015 under Section 113 of 2013 Act, noted above, in holding that the date of determination of the market value of the land in the matters falling under Section 24(1)(a) shall be treated as 1.1.2014 in terms of the directions issued by the Central Government. The Special Land Acquisition Officer had been directed therein to redetermine the market value of the land in question as on 1.1.2014 by making fresh award.
26. The Special Leave to Appeal (C) No(s). 17660 of 2017 (Ghaziabad Development Authority vs. Ishan International Educational Society & others) challenging the judgment and order dated 9.5.2017 in Ishan International Educational Society (supra) has been dismissed on 19.7.2017 by the Apex Court holding that there was no legal and valid ground for interference. Similar is the position with regard to the decision of this Court in the case of Krishna Autar (supra) where Special Leave Petition (Civil) Diary No(s). 26271 of 2017 (Moradabad Development Authority vs. Krishna Autar & Ors) had been dismissed on 14.11.2017. The review petition filed in Special Leave Petition (Civil) No. 17660 of 2017 [in the matter of Ishan International Educational Society (supra)] had also been dismissed on 5th December, 2017.
In Hori Lal (supra), the issue raised before the Division Bench of this Court was about the date of determination of compensation in the land acquisition proceedings initiated under the Act, 1894. It was argued on behalf of the writ petitioners therein that the date for determination of the market value of the land should be the date on which awards were made by the Special Land Acquisition Officer in the year 2015-16 and it cannot be 1.1.2014, which was turned down by the Division Bench relying on the D.O. letter dated 26.10.2015 issued under Section 113 of the RFCTLARR Act, 2013 and the provisions of 2013 Act in the matter of determination of compensation. The judgment and order dated 9.3.2017 of the Division Bench in Hori Lal (supra) was challenged in Special Leave Petition (C) No. 14820 of 2017 by the writ petitioner therein. On conversion into Civil Appeal No. 1462 of 2019, with the grant of leave, the appeal had been dismissed by the Apex Court vide judgment and order dated 5th February, 2019.
27. A perusal of the judgment of the Apex Court in Civil Appeal No. 1462 of 2019 (Hori Lal vs. State of U.P. and others), makes it evident that the challenge before the Apex Court was with regard to the date for determining the compensation and it was contended that it should be the date on which the Land Acquisition Officer had passed the award. The Apex Court has rejected the said arguments in the following manner:-
"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 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.
22. We, therefore, find no good ground to take a different view than what was taken by the High Court in the impugned order"
The view taken by the Division Bench in Hori Lal (supra) with respect to the date of determination of compensation being 1.1.2014, in land acquisition proceedings initiated under the Act, 1894 after commencement of the RFCTLARR Act, 2013 has, thus, been affirmed.
28. In another decision dated 12th February, 2019, in Civil Appeal No. 4821 of 2016, in Interlocutory Application No. 4 of 2016 (Aligarh Development Authority vs. Megh Singh and others), the Apex Court has held that the date of determination of market value should be recorded as 1.1.2014 in view of the Central Government orders under Section 113 of the Act. The above noted decision in the case of Hori Lal (supra), the judgment of this Court dated 9.5.2017 in Ishan International Educational Society (supra) have been relied upon to issue direction to the Special Land Acquisition Officer, Aligarh therein to redetermine the compensation as per the market value as on 1.1.2014, by setting aside the award dated 5.11.2016 therein.
Various other orders of the Apex Court in the review applications filed in the above noted cases have been placed before us in the compilation supplied by the counsel for the petitioners to assert that the issue relating to determination of market value as on 1.1.2014 in a case falling under Section 24(1)(a) of the RFCTLARR Act, 2013 is no longer res integra. "
16. The Division Bench in Smt. Sabita Sharma and others (supra) taking note of the decision of the Apex Court, has concluded that the issue relating to determination of market value as on 01.01.2014 in a case falling under Section 24(1)(a) of the Act 2013 is no longer res integra. The direction was issued to the concerned authority to make a fresh award by determining the market value of the land in question as on 01.01.2014.
17. On a query made by the Court, the learned counsel for the petitioners submits that the aforesaid decision of the Division Bench of this Court is still holding the field.
18. In view of the above discussion, having reached at the conclusion that the Special Land Acquisition Officer, Joint Organisation, Mathura has erred in law in making of the award dated 01.09.2017 giving it a picture of consent award, contrary to the provisions of Act' 2013, we set aside the award dated 01.09.2017 in Land Acquisition Case No. 34 of 2005. As to the date of determination of market value for the land in question, subject matter of consideration in the instant writ petition, in our considered opinion, since the initial award has been made after enforcement of the Act' 2013 w.e.f. 01.01.2014, the date of determination of market value of the land in question, in the instant case, shall be 01.01.2014.
19. The present writ petition is, therefore, disposed of with the direction to the Special Land Acquisition Officer, Mathura to propose a fresh award keeping in mind the observations and directions given hereinabove with respect to the land in question, i.e. the land owned by the writ petitioners herein, by determination of market value of the land in question as on 01.01.2014, by including all elements of compensation in accordance with the provisions of the Act' 2013, preferably within a period of two months from today after giving due notice and opportunity of hearing to all concerned.
20. It goes without saying that the respondent- Development Authority shall have an opportunity of making objection to the determination made by the Special Land Acquisition Officer in the course of the proceedings to be conducted pursuant to this order. In any case, the decision of making of the award, as per the directions contained herein, shall reflect due application of mind on the part of the Special Land Acquisition Officer, Mathura.
21. Disposed of.
Order Date :- 12.7.2023 Ashish Pd.