Gujarat High Court
Becharbhai Jadabhai Panara & 18 vs State Of Gujarat & 2 on 17 February, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, Z.K.Saiyed
C/SCA/18642/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18642 of 2015
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BECHARBHAI JADABHAI PANARA & 18....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 19
MR. HJ KARATHIYA, ADVOCATE for the Petitioner(s) No. 1 - 19
MR PRANAV TRIVEDI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 17/02/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioners have prayed for a declaration that the acquisition proceedings qua their agriculture lands has lapsed by virtue of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("the Act" for short).
2. Brief facts are as under:-
2.1 Petitioners are owners of different parcels of agriculture lands situated in village Jasapar, Tal.Page 1 of 8
HC-NIC Page 1 of 8 Created On Fri Feb 19 03:06:09 IST 2016 C/SCA/18642/2015 ORDER Jodiya, Dist. Jamnagar. For the purpose of 'Aaji-4' irrigation scheme, such lands were acquired as part of the submergence of the dam reservoir. Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 18.09.2005. Section 6 notification was issued on 20.12.2005. Land Acquisition Officer passed his award under Section 11 of the Act on 03.01.2008. The Collector thereafter issued notice under Section 12(2) of the Land Acquisition Act on 15.01.2008 seeking to take possession of the lands in question. At that stage, the petitioners gave an undertaking to the Government authorities on 01.03.2008. In such undertaking, it was conveyed that even when dam is totally filled, there is water level of less than 5 ft in their lands. They requested that, therefore, their lands be released from acquisition. They undertook that if so done, the petitioners would not seek any compensation or damages. They would not reside on the land by putting any permanent structure. If the land is submerged, they would not claim any loss of agriculture income.
2.2 In response to the request for releasing the lands from acquisition, the Executive Engineer of the Irrigation Department conveyed under letter dated 06.03.2010 that only after dam overflows for two to three years, can the actual ground situation be assessed and Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri Feb 19 03:06:09 IST 2016 C/SCA/18642/2015 ORDER only thereafter, any recommendations can be made to the Government for releasing the lands from acquisition.
3. Be that as it may, since the petitioners were desirous of having the land released from acquisition and were not interested in receiving the compensation, the compensation awarded by the Land Acquisition Officer under award dated 03.01.2008 was never received by them. It is undisputed that the Government thereupon deposited the amount of compensation before the Treasury. Though some of the land losers claimed such compensation, indisputably, none of the petitioners have received the amount of compensation. It is in this background that the petitioners seek a declaration of lapsing of the acquisition under Section 24(2) of the Act.
4. Case of the Government is that if the dam is filled to the brim, the lands in question would come under submergence. They were acquired by following proper procedure. Possession of the land was also taken over at the relevant time. The compensation was never received by the petitioners and therefore, deposited in the Government Treasury.
5. In view of such facts on record, the question is of applicability of Section 24(2) of the Act, which reads as under:-
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HC-NIC Page 3 of 8 Created On Fri Feb 19 03:06:09 IST 2016 C/SCA/18642/2015 ORDER "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 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."
6. In terms of Sub-section (2) of Section 24 thus, in case of acquisition where an award under Section 11 of the Land Acquisition Act has been made five years or more prior to the commencement of the Act and physical possession of the land has not been taken or the compensation has not been paid, the proceedings shall be deemed to have lapsed. The Government, if it so chooses, could initiate proceedings for acquiring such land afresh in accordance with the provisions of the new Act.
7. It is by now well settled that term "paid" used in Sub-section (2) of Section 24 of the Act would include also tendering of the compensation by depositing the same before the Court. In this context the Supreme Court in Page 4 of 8 HC-NIC Page 4 of 8 Created On Fri Feb 19 03:06:09 IST 2016 C/SCA/18642/2015 ORDER case of Pune Municipal Corporation & Anr. Vs. Harakchand Misirimal Solanki & Ors., reported in (2014) 3 SCC, page No.183 has observed that if the compensation is deposited before the Court, it would be sufficient compliance of the requirements of the compensation having been paid. While doing so, it was also observed that mere deposit before the Treasury, would not be sufficient. It was held and observed as under:-
"17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word "paid" to "offered" or "tendered". But at the same time, we do not think that by use of the word "paid", Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression "paid" used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as "paid" if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been "paid" within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Feb 19 03:06:09 IST 2016 C/SCA/18642/2015 ORDER dealt with as provided in Sections 32 and 33.
18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad[1]) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs.27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes[2], relying upon the earlier decision in Prem Nath Kapur[3], has held that the deposit of the amount of the compensation in the state's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court.
20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Feb 19 03:06:09 IST 2016 C/SCA/18642/2015 ORDER under Section 24(2) of the 2013 Act."
8. This view has been followed by the Supreme Court in several later decisions. This Court has also, following such judgments of the Supreme Court, declared lapsing of land acquisition when it is found that instead of either paying the compensation or depositing before the Court when the claimants did not receive it, the compensation was deposited before the Government Treasury.
9. Under the circumstances, it is declared that the acquisition of the petitioners' lands covered under the award dated 03.01.2008 of the Land Acquisition Officer has lapsed by virtue of operation of Section 24(2) of the Act.
10. Learned AGP, however, submitted that if there is sufficient rainfall and the reservoir is filled to its maximum capacity, the lands in question may come within submergence area. If on account of lapsing of the acquisition, this submergence is to be avoided, the Irrigation authorities would be forced to release the water from the dam early, which would result into reduced storage of water in the reservoir. This would be against public interest. In view of the stand consistently taken by the petitioners that if the lands are released from Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Feb 19 03:06:09 IST 2016 C/SCA/18642/2015 ORDER acquisition, they would not oppose filling up water in the reservoir even if their lands come within submergence, we direct that the petitioners shall not oppose the irrigation authorities from filling up the dam to its optimum capacity if there is sufficient rainfall. However, in view of the declaration of lapsing of the acquisition, the petitioners would be entitled to compensation for loss of crop /agriculture income as and when such situation arises.
11. With these directions, petition is disposed of.
(AKIL KURESHI, J.) (Z.K.SAIYED, J.) SHITOLE Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Feb 19 03:06:09 IST 2016