Madhya Pradesh High Court
Indore Municipal Corporation Indore vs Murlidhar on 3 April, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
W.A. No. 163 of 2016
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 3rd April , 2024
WRIT APPEAL No. 163 of 2016
BETWEEN:-
INDORE MUNICIPAL CORPORATION INDORE COMMISSIONER
INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI MANOJ MUNSHI - ADVOCATE FOR THE APPELLANT)
AND
MURLIDHAR S/O BADRILAL KALANTRI SATYAM 502, BIYABANI
1.
INDORE (MADHYA PRADESH)
SMT LEELABAI DEID THROUGH LR NOT MENTIONED S/O
2. NANNUSINGH SATYAM 502, BIYABANI INDORE (MADHYA
PRADESH)
NARENDRA KUMAR S/O MANNUSINGH BHANGYA, TEHSIL
3.
SANWER AND DISTRICT INDORE (MADHYA PRADESH)
ROOPSINGH S/O KALUSINGH BHANGYA TEHSIL SANWER AND
4.
DISTRICT INDORE (MADHYA PRADESH)
PREMSINGH S/O KALUSINGH BHANGYA TEHSIL SANWER AND
5.
DISTRICT INDORE (MADHYA PRADESH)
ANTARSINGH S/O KALUSINGH BHANGYA TEH SANWER AND
6.
DISTRICT INDORE (MADHYA PRADESH)
POPSINGH S/O KALUSINGH BHANGYA TEHSIL SANWER AND
7.
DISTRICT INDORE (MADHYA PRADESH)
CHANDARSINGH @ CHANDGIRAM S/O KALUSINGH BHANGYA
8.
TEHSIL SANWER AND DISTRICT INDORE (MADHYA PRADESH)
LEELABAI W/O KALUSINGH BHANGYA TEHSIL SANWER AND
9.
DISTRICT INDORE (MADHYA PRADESH)
PRAKASHCHANDRA S/O BHAGWANDAS AJANTA STORES,
10.
MALWA MILL CHOURAHA , INDORE (MADHYA PRADESH)
2
W.A. No. 163 of 2016
GOPAL (DECEASED) THROUGH LR SURESH S/O GOPAL
11.
CHOUDHARY KABIT KHEDI INDORE (MADHYA PRADESH)
GOPAL (DECEASED) THROUGH LR MAHESH S/O GOPAL
12.
CHOUDHARY KABIT KHEDI INDORE (MADHYA PRADESH)
DECEASED DHULJI CHOUDHARY THROUGH LR RAJENDRA
13. CHOUDHARY S/O DHULJI CHOUDHARY KABIT KHEDI INDORE
(MADHYA PRADESH)
DECEASED DHULJI CHOUDHARY THROUGH LR SUBHASH
14. CHOUDHARY S/O SHRI DHULJI CHOUDHARY KABIT KHEDI
INDORE (MADHYA PRADESH)
DECEASED DHULJI CHOUDHARY THROUGH LR DINESH
15. CHOUDHARY S/O SHRI DHULJI CHOUDHARY KABIT KHEDI
INDORE (MADHYA PRADESH)
THE STATE OF MP THROUGH THE CHIEF SECRETARY
16.
VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
THE COMMISSIONER INDORE DIVISION INDORE INDORE
17.
(MADHYA PRADESH)
THE COLLECTOR INDORE AND EXO-FFICIO DEPUTY
SECRETARY REVENUE DEPARTMENT GOVT OF MADHYA
18.
PRADESH INDORE REVENUE DEPARTMENT GOVT OF MADHYA
PRADESH INDORE (MADHYA PRADESH)
THE LAND ACQUISITION OFFICER, INDORE (MADHYA
19.
PRADESH)
THE EXECUTIVE ENGINEER INDORE PROJECT SURVEY
20. DIVISION PUBLIC HEALTH ENGINEERING DEPARTMENT
INDORE (MADHYA PRADESH)
REGIONAL OFFICER M P POLLUTION CONTROL BOARD
21.
TELEPHONE NAGAR INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI V.K. JAIN - SENIOR ADVOCATE WITH SHRI VAIBHAV JAIN,
ADVOCATE FOR THE RESPONDENTS
(SHRI ANIKET NAIK - DY ADVOCATE GENERAL FOR THE
RESPONDENT/STATE)
Reserved on : 21.12.2023
Pronounced on : 03.04.2024
------------------------------------------------------------------------------------
This appeal having been heard and reserved for order coming
on for pronouncement this day, Hon'ble Shri Justice S.A.
DHARMADHIKARI pronounced the following
3
W.A. No. 163 of 2016
ORDER
Matter is heard finally with the consent of parties. This intra court appeal under Section 2(1) of the Madhya Pradesh Uccha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 assails the order dated 02.02.2016 by which the W.P. No. 1446/1996 filed by the respondents was allowed by learned Single Judge.
Also heard on I.A. No. 9196/2023, which is an application for taking on record, the document pertaining to deposit of compensation in treasury.
2. Brief facts in nutshell are that respondents are the bhumiswamis of the land/survey no. situated in village Shakkar Khedi Teh. & Distt. Indore as indicated below:
S.N Name of Survey No. Area (Hectare)
o. Respondent
1 Murlidhar 127/1,137/1
2 Smt. Leela Bai 138,139,140,142/2 14.273
3 Narendra Kumar
4 Roop Singh
5 Prem Singh
6 Antar Singh 125,126/1, 124/4 11.173
7 Popsingh
8 Chandar Singh
9 Leelabai
10 Prakash Chandra 123/3, 124 1.017
11 Gopal
12 Dhulji 129 3.306
TOTAL SURVEY TOTAL AREA :
NO(S) : 12 29.769
3. Vide notification dated 23.02.1996 under Section 4(1) of the 4 W.A. No. 163 of 2016 Land Acquisition Act, 1894(referred to as the Act of 1894 hereinafter) published in M.P. Gazette dated 15.03.1996, the Collector, Distt. Indore notified that the land measuring 29.768 hectares of land situated in village Shakkar Khedi Teh & Distt. Indore is required for public purpose mentioned as purification of river Khan under the National River Project. When respondents 1 to 11 came to know about publication of notification, they submitted representation cum objection to the Commissioner, Indore Division, Indore raising objection that the Public Health Engineering Department already has sufficient land available at Village Kabeetkhedi wherein a total 38.50 hectares of land had already been acquired by the State Government and handed over to the Public Health Engineering Department and, therefore, the proposed acquisition of land in question is not illegal. Further objection has been raised that some plant has already been erected on the land acquired in village Kabeetkhedi previously and now acquiring another parcel of land at a different location and distance for erection of another plant would result into burdening of public exchequer. The objections raised by the respondents have not been adverted to by the Commissioner, Indore. Respondent further came to know that land was previously acquired in the year 1950 for the same purpose i.e. water treatment plant. However, the said acquired land was not put to the use for the purpose for which it has been acquired and rather it has been leased out to certain influential farmers for cultivation of sugarcane. The State Government took possession of the land given on lease and obtained permission for setting up water purification plant at Kabeetkhedi which was handed over to the Municipal Corporation which is still working. In the year 2008, a Master Plant 2021 came into force in the Indore city wherein water treatment plant is being proposed to be erected at Village 5 W.A. No. 163 of 2016 Shakker Khedi which is in the city limits of Indore. Respondents preferred a petition raising the ground that establishing of water treatment plant for public purpose within city limits would be harmful for health of public living in the local vicinity of Shakkar Khedi. Respondents after coming into force 'the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013[referred to as 'the Act of 2013' hereinafter].w.e.f 01.01.2014 modified the relief and claimed that the acquisition proceedings have been lapsed under Section 24(2) of the Act of 2013 because neither the amount of compensation was paid to the landowners nor it was deposited in reference Court and the landowners are still cultivating the land despite paper possession having been taken over by the appellant.
4. The said writ petition was allowed by learned Single Judge wherein following observations were made:
In W. P. No.1446/1996, it is an undisputed fact that amount of compensation has not been paid to the land owner nor it has been deposited in the Court. On the contrary, in additional return filed by Indore Municipal Corporation, in paragraph No.4 it has been categorically stated that merely because the amount of compensation has not been deposited in the Court, the proceedings will not lapse.
19. The Division Bench of this Court in the case of Purushottam Lal and Others Vs. State of M. P. and Others reported in 2016(1) MPLJ 32 has held that once the amount of compensation has not been paid to the land owner and has not been deposited in the Court, the proceedings under the old act certainly lapses.
20. Another important aspect of the matter is that the petitioner has stated that he is very much cultivating the land in question though it has been stated in the return that paper formalities 6 W.A. No. 163 of 2016 have been completed by the Indore Municipal Corporation in respect of possession.
21. This Court without averting into the aforesaid factual position as compensation has not been paid to the petitioner nor has been deposited in the Court where reference is normally filed, is of the opinion that the controversy involved in the present case stands concluded by a judgment delivered in the case of Purushottam Lal (Supra) and therefore, this writ petition also stands allowed and the land acquisition proceedings are quashed. The land is restored back to the land owners and if required, respondents may proceed afresh in accordance with law under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
With the aforesaid, the writ petition stands allowed and disposed of.
5. Appellant being aggrieved by the order passed by learned Single Judge has filed the instant appeal wherein the order passed by the learned Single Judge was upheld by the Division Bench with the following observations:
24.In this case, even though the reply filed by the Indore Development Authority indicates that neither possession is taken over by them nor compensation has been paid to the beneficiaries, in accordance with the requirement of Section 31 of the Old Act. As held by the Apex Court, mere deposit of the amount in the Government Treasury or with the Revenue Department is not sufficient, it has to be paid to the beneficiaries or deposit in the Court where reference under Section 18 is normally filed. That being so, we are satisfied that documents overwhelming available on record to demonstrate that inspite of award having been more than five years prior to coming into force of the New Act, the award of 7 W.A. No. 163 of 2016 compensation has not been paid to the beneficiaries as required under law nor possession of the land in question has been taken over from the owners and, therefore, in the light of legal principles laid down by the Apex Court as referred to herein above, entire proceedings lapsed.
25.In view of the foregoing discussion, it is not necessary to consider the correctness of the impugned judgment on merits.
26.Accordingly, I.A. Nos.3418/2015 dated 6/07/2015 in W.A. No.514/06, I.A. No.6308/2013 dated 12/11/2013 in W.A. No.799/2006 and I.A. No.6272/2013 dated 1/11/2013 in W.A. No.250/2008(applications u/O VII Rule 7 of CPC); I.A. No.64/2015 dated 6/01/2015 in W.A. No.799/2005(application for taking document on record) and I.A. No.3772/2015 filed in July, 2015 (application u/w 151 of CPC) in W.A. No.250/2008, I.A. No.22772014, application for disposal of the appeal filed in W.A. No.772/2006, and I.A. Nos.1888/2013 filed in W.A. No.323/2008 and 1889/2013 filed in W.A. No.250/08 for taking additional documents on record are allowed.
27.The writ appeals bearing W.A. No.514/2006, W.A. No.772/2006, W.A. No.799/2006, W.A. No.250/2008 and W.A. No.323/2008 are also allowed. Order dated 13/11/2000, passed by the Writ Court in M.P. Nos.1730/91, 205/91, 4628/90, 1757/91 and 1727/91 are hereby quashed. It is held that the acquisition proceedings are lapsed. If the land is required, the respondents may proceed in accordance with the New Act. No costs.
6. Appellant thereafter has filed SLP © No. 6804/2023(Diary No. 23998/2017). The Apex Court referring to the judgment passed by the Constitution Bench in the case Indore Development Authority Vs. Manoharlal & Others reported in (2020) 8 SCC 129 set aside the order passed by the Division Bench and remanded the matter back 8 W.A. No. 163 of 2016 to the High Court with the following observations:
"In view of the above and for the reasons stated hereinabove and without further entering into the merits of the case and/or expressing anything on merits in favour of either of the parties, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The matter is remitted to the High Court to decide and dispose of the same afresh in accordance with law and on its own merits and in the light of the law laid down by this Court in the case of Indore Development Authority(supra). All the contentions which may be available to the parties are kept open to be considered by the High Court in accordance with the law laid down by this Court in the case of Indore Development Authority(supra). We request the High Court to finally decide and dispose of the appeal on remand at the earliest and preferably within a period of six months from the date of receipt of present order."
7. Learned counsel for the appellant has put his arguments chronologically as mentioned below:
(i) On 23.02.1996 notification under Section 4 of the Act of 1894 was issued by the Land Acquisition Officer on behalf of State Government for setting up of a sewage treatment plant for purification of water flowing into the river Khan(kanh) in the city of Indore on 32 hectares of land including 29.763 hectares of land private land belonging to the respondents.
(ii) A declaration in that regard was issued by the State Government under Section 6 of the Act of 1894 dated 03.04.1996.
(iii) A writ petition no. 1446/1996 was filed by the respondents on 25.10.1996 before this Court challenging the notification and declaration issued under the Act of 1894.
(iv) By order dated 30.10.1996, interim relief was granted to the 9 W.A. No. 163 of 2016 respondents by this Court protecting their possession and directing the Land Acquisition Officer to continue with the proceedings, but possession of land would not be disturbed.
(v) The M.P. Pollution Control Board deposited a sum of Rs. 92 lakhs with the Collector, Indore as a part of purchase price/compensation of the land under the National River Conservation Plan of Government of India by way of letter dated 08.01.1997 in terms of the award.
(vi) W.P. No. 1446/1996 pending before this Court was transferred to Green Bench at Principal Seat at Jabalpur which was renumbered as W.P. No. 2990/1998 on 12.05.1998.
(vii) The Land Acquisition Officer passed an award dated 12.09.1998 with respect to acquisition of 29.768 hectare land situated at Village Shakkarkhedi. However. He did not take possession of the land. Compensation to the tune of Rs. 1.13,35,765/- was awarded out of which an amount of Rs. 92 lakhs has already been deposited by the M.P. Pollution Control Board.
(viii) The Divisional Commissioner, Indore approved the award dated 12.09.1998 passed by the Land Acquisition Officer on 14.09.1998.
(ix) A notice u/S 12 of the Act of 1894 dated 16.09.1998 was served to the landowners/respondents by the Land Acquisition Officer.
(x) Respondents declined to accept the amount of compensation and requested for enhancement by submitting a reference u/S 18 of the Act of 1894 to the Collector on 29.10.1998.
(xi) On 29.04.1999, M.P. Pollution Control Board deposited the balance sum of Rs. 21,35,765/- with the Collector thereby 10 W.A. No. 163 of 2016 depositing the entire amount of Rs. 1,13,35,765/- as per the award date 12.09.1998.
(xii) On 13.11.2009, W.P. No. 2990/1998 was dismissed by the Principal Seat at Jabalpur for want of prosecution and interim order was also vacated.
(xiii) Notices were served upon the respondents for handing over the possession of the land pursuant to dismissal of writ petition on 24.11.2009.
(xiv) Pursuant to dismissal of petition and vacation of interim orders, on 03.12.2009 the competent authority obtained possession of entire land after due notice and thereafter land was handed over to the appellant/Municipal Corporation for the purpose of setting sewage treatment plant for purification of river Khan(kahn) and panchnama was duly prepared in that regard.
(xv) Tehsildar passed an order for mutation and recording the name of Indore Municipal Corporation in the revenue records after obtaining possession from the competent authority on 05.12.2009.
(xvi) W.P. No. 2990/1998 was restored by order dated 07.12.2009 passed by this Court and further direction was issued to maintain status-quo as on the date of order.
(xvii) W.P. No. 2990/1998 was transferred to this Court and the same was restored as W.P. No. 1446/1996 on 06.12.2010. (xviii) On 14.01.2015, respondents sought amendment in the pleadings with respect to applicability of Section 24(2) of the Act of 2013.
(xix) On 12.02.2015, appellant herein was impleaded as respondent in W.P. No. 1446/1996.
11 W.A. No. 163 of 2016(xx) Vide judgment dated 02.02.2016, the learned Single Judge has allowed the petition concluding that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.
(xxi) Instant intra Court appeal was preferred by the appellant which was dismissed by the Division Bench vide order dated 25.04.2016 (xxii) Appellant being aggrieved by the dismissal of intra Court appeal preferred SLP which was allowed and the matter was remanded back to this Court for deciding afresh vide order dated 08.05.2023.
8. Learned counsel for the appellant has raised various objections which are as under:
(i) It is submitted that the learned Single Judge and the Division Bench of this Court relying upon the judgments of Smt. Shyam Verma and Purushottam Lal(supra) allowed the writ petition on erroneous ground that no compensation had been deposited in the reference Court or paid to the respondents and actual possession was not taken.
(ii) It is pertinent to mention here that the substantial part of compensation of Rs. 92 lakhs out of Rs. 113.36 lakhs was deposited on 08.01.1997, much prior to passing of the award on 12.09.1998 and balance amount of compensation of Rs. 21.36 lakhs was paid on 29.04.1999. Thus, the compensation had been deposited in full with the Collector/Land Acquisition Officer. So far as the possession of land is concerned, the same was obtained by the appellant way back on 03.12.2009.
(iii) It is also submitted that the learned Single Judge as well as the Division Bench have failed to appreciate that no proceedings 12 W.A. No. 163 of 2016 before reference Court were pending. Hence, no question of depositing the amount of compensation before the reference Court arises. The amount of entire compensation was deposited before the Land Acquisition Officer is sufficient and, therefore, provision of Section 24(2) of the Act of 2013 is not applicable in the instant case.
9. Learned counsel for the appellant in support of his above contentions has placed reliance on the judgment rendered by the Constitution Bench in the case of Indore Development Authority Vs. Manoharlal and Others(supra) on the following key points:
1. On Interpretation of Section 24(2) of the Act of 2013.
"95. Section 24 begins with a non-obstante clause, overriding all other provisions of the Act of 2013 including Section 114 of the Act of 2013, dealing with repeal and saving. In terms of Section 114 of the Act of 2013, the general application of Section 6 of the General Clauses Act, 1897, except otherwise provided in the Act, has been saved. Section 6(a) of the General Clauses Act, 1897 provides that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time when the repeal has been made. The effect of the previous operation of any enactment so repealed or anything duly done or suffered thereunder is also saved by the provisions contained in Section 6(b). As per Section 6(c), the repeal shall not affect any right, privilege, obligation or liability acquired, accrued, or incurred. Section 24(1)(a) of the Act of 2013 read with the non- obstante clause provides that in case of proceedings initiated under the Act of 1894 the award had not been made under Section 11, then the provisions of the Act of 2013, relating to the determination of compensation would apply. However; the proceedings held earlier do not lapse. In terms of Section 24(1)(b), where award under Section 13 W.A. No. 163 of 2016 11 is made, then such proceedings shall continue under the provisions of the Act of 1894. It contemplates that such pending proceedings, as on the date on which the Act of 2013 came into force shall continue, and taken to their logical end. However, the exception to Section 24 (1)(b) is provided in Section 24(2) in case of pending proceedings; in case where the award has been passed five years or more prior to the commencement of the Act of 2013, the physical possession of the land has not been taken, or the compensation has not been paid, the proceedings shall be deemed to have lapsed, and such proceedings cannot continue as per the provisions of Section 24(1)(b) of the Act of 2013.
96.Section 24(2) of the Act of 2013 is, in our opinion, a penal provision - to punish the acquiring authority for its lethargy in not taking physical possession nor paying the compensation after making the award five years or more before the commencement of the Act of 2013 in pending proceedings, providing that they would lapse. The expression where an award has been made, then the proceedings shall continue used in Section 24(1)(b) under the provisions of the Act of 1894 means that proceedings were pending in praesenti as on the date of enforcement of the Act of 2013 are not concluded proceedings, and in that context, an exception has been carved out in section 24(2).
2. On deposit of compensation with Land Acquisition Officer "226. Thus, in our opinion, the word "paid" used in Section 24(2) does not include within its meaning the word "deposited", which has been used in the proviso to Section 24(2). Section 31 of the Act of 1894, deals with the deposit as envisaged in Section 31(2) on being 'prevented' from making the payment even if the amount has been deposited in the treasury under the Rules framed under Section 55 or under the 14 W.A. No. 163 of 2016 Standing Orders, that would carry the interest as envisaged under Section 34, but acquisition would not lapse on such deposit being made in the treasury. In case amount has been tendered and the landowner has refused to receive it, it cannot be said that the liability arising from non-payment of the amount is that of lapse of acquisition. Interest would follow in such a case also due to non-deposit of the amount. Equally, when the landowner does not accept the amount, but seeks a reference for higher compensation, there can be no question of such individual stating that he was not paid the amount (he was determined to be entitled to by the collector). In such case, the landowner would be entitled to the compensation determined by the Reference court. In re: Rules framed under Section 55 and the Standing Orders issued by State Governments
243. It is clear that once land is acquired, award passed and possession has been taken, it has vested in the State. It had been allotted to beneficiaries. A considerable infrastructure could have been developed and a third-party interest had also intervened. The land would have been given by the acquiring authorities to the beneficiaries from whose schemes the land had been acquired and they have developed immense (1997)
10 SCC 77 infrastructure. We are unable to accept the submission that merely by deposit of amount in treasury instead of court, we should invalidate all the acquisitions, which have taken place. That is not what is contemplated under Section 24(2). We are also not able to accept the submission that when law operates these harsh consequences need not be seen by the court. In our opinion, that submission is without merit in as such consequences are not even envisaged on proper interpretation of Section 24(2), as mentioned above.
3. Paper possession of the land acquired.
15 W.A. No. 163 of 2016"258. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the land-owner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner."
4. Possession by drawing panchnama in compliance of requirement of Section 24(2) of physical poss ession.
"279. The court is alive to the fact that are a large number of cases where, after acquisition land has been handed over to various corporations, local authorities, acquiring bodies, etc. After depositing compensation (for the acquisition) those bodies and authorities have been handed possession of lands. They, in turn, after development of such acquired lands have handed over properties; third party interests have intervened and now declaration is sought under the cover of section 24(2) to invalidate all such actions. As held by us, section 24 does not intend to cover such cases at all and such gross misuse of the provisions of law must stop. Title once vested, cannot be obliterated, without an express legal provision; in 16 W.A. No. 163 of 2016 any case, even if the landowners' argument that after possession too, in case of non-payment of compensation, the acquisition would lapse, were for arguments' sake, be accepted, these third party owners would be deprived of their lands, lawfully acquired by them, without compensation of any sort. Thus, we have no hesitation to overrule the decisions in Velaxan Kumar (supra) and Narmada Bachao Andolan (supra), with regard to mode of taking possession. We hold that drawing of Panchnama of taking possession is the mode of taking possession in land acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does not inure for conferring benefits under section 24(2) of the Act of 2013."
10. Learned counsel for the appellant has raised various other grounds and in support of the said grounds has further pressed into service various other judgments which are as follows:
1. Issuance of notice not required and presence of landowners is not required for taking possession.
● Banda Development Authority Vs. Moti Lal Agarwal and Others reported in (2011) 5 SCC 394.[Relevant Para 30 & 31, 33 & 37] "What should be the mode of taking possession of the land acquired under the Act? This question was considered in Balwant Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC 700. Untwalia, J. referred to the provisions contained in Order XXI Rules 35, 36, 95 and 96 of the Code of Civil Procedure, decisions of different High Courts and opined that even the delivery of so called "symbolical" possession is delivery of "actual"possession of the right, title and interest of the judgment-debtor. Untwalia,J.further observed that if the property is land over which there is no building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective 17 W.A. No. 163 of 2016 against him the moment the delivery is effected by going upon the land. The Learned Judge went on to say:
"When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under Section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interests in the land has to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17 (1) it vests absolutely in the Government free from all incumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that 18 W.A. No. 163 of 2016 under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government."
● Balwant Narayan Bhagde Vs. M.D. Bhagwat and Others reported in (1976) 1 SCC 700. [Relevant para 21 & 23] "The so-called paper possession or possession on paper is no delivery of possession, actual, formal or symbolical. A Bench of the Madras High Court consisting of Rajamannar, C.J. and Rajagopala Aiyangar, J. has stated at page 762 in the case of Pathaperumal Ambalam v. Chidambaram Chettiar(2) :
"The next question is whether it makes any difference in legal effect if possession is taken through court. The Code contemplates no notice to the judgment-debtor at that stage or any objection being raised by him to the delivery of possession under Rule 95, or Rule 96, and as the full title to the property has passed from the judgment debtor to the auction purchaser, he has no interest in the property to protect."
It has further been pointed out "The characterization of possession taken under Order 21 Rule 96, as "paper possession" is hardly justified and runs counter. to the principle on which the provision is based. Symbolical possession obtained under Order 21, Rule 96 is quite a different thing from paper possession, which might correctly describe only the possession obtained by a party who being entitled to actual possession, the judgment-debtor himself being in possession, obtains delivery of possession on paper without actual possession ; or those cases where without complying with the requisites of the statute a false return is made as if they were complied with." (1)A.I.R. 1934 Patna 565.
19 W.A. No. 163 of 2016In a proceeding under the Act for acquisition of land all interests are wiped out. Actual possession of the land becomes necessary. for its use for the public purpose for which it has been acquired. Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law.' Surely it cannot be a possession merely on paper. What is required under the Act is the taking of actual possession on the spot. In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government."
● Land and Building Department through Secretary & Anr. Vs. Attro Devi & Ors. [SLP © No. 2749/2023] ● Government of NCT of Delhi & Anr. Vs. Dayanand & Anr.
reported[SLP(C) No. 418/2023-
"Even otherwise, it is required to be noted that in the present case the possession was taken in respect of the major portion of the land i.e., 19 biswa out of 20 biswa and the possession of one (01) biswa could not be taken due to built-up. Even the notice under Section 12(2) was issued upon the original writ petitioner vide registered post No. 4065 dated 27.02.2009, however, when the original writ petition did come to collect the compensation, it was sent to the revenue deposit. Once the notice under Section 12(2) of the LA Act was issued and served upon the original writ petitioner and he was called upon to collect the compensation and thereafter, when he did not come to collect the compensation and then the compensation was sent to the revenue deposit, thereafter it would not be open for the original writ petitioner to contend that as the compensation has not been paid the acquisition proceedings are deemed to have lapsed. The 20 W.A. No. 163 of 2016 original writ petitioner cannot be permitted to take the benefit of his own conduct/wrong.
4. Applying the law laid down by this Court in the case of Indore Development Authority (supra) and considering the facts narrated hereinabove and more particularly, when the major portion of the land in question was taken as far as back on 13.04.2009 by drawing possession proceedings which is held to be permissible in the case of Indore Development Authority (supra) and taking into consideration the fact that the notice under Section 12(2) of the LA Act was issued and served upon the original writ petitioner but he did not collect the compensation and therefore, the same was again sent to the revenue deposit, the impugned judgment and order passed by the High Court declaring that the acquisition in respect of land in question is deemed to have lapsed is unsustainable".
11. Learned counsel in support of his contention regarding deposit of compensation in treasury has sought permission from this Court by filing I.A. No. 9196/2023, an application for taking on record the documents vouching for the fact of deposit of amount of compensation.
12. Adverting to the I.A., learned counsel submitted that the Land Acquisition Officer, Collectorate, Indore vide letter no. 719//23 dated 11.12.2023 has confirmed that the amount of entire compensation of Rs. 1,13,35,765/- is lying deposited in the Government Treasury, Collectorate, Indore and for just and proper adjudication of the case in hand, it is imperative to take the said document on record. Hence, in the interest of justice, the same be taken on record.
13. Per contra, learned counsel for the respondents no. 1 to 11 has raised preliminary objections which are as follows:
21 W.A. No. 163 of 2016(i) It is undisputed that the land acquisition award under Section 11 of the Act of 1894 was passed on 12.03.1998.
(ii) As per the award passed by the Land Acquisition Officer, the amount of compensation was never paid to the land owners nor was ever deposited even till today in the Court in terms of Section 31 of the Land Acquisition Act, 1894.
(iii) It is also submitted that as a matter of fact,the land in question is still in possession of the answering respondents and they are cultivating the agricultural land. However, appellants had claimed to have obtained possession on 03.12.2009 .
(iv) Learned counsel submitted that without admitting, but for the sake of argument even if it is presumed that the appellant had taken possession of the land on 03.12.2009, the fact remains that neither the appellant nor the Collector had actually paid the amount of compensation to the land owners i.e. respondents no.1 to 11. The amount of compensation has not been deposited by the appellant or the Collector in the Court in terms of Section 31 of the Act of 1894.
(v) It is further not disputed that the award was passed on 12.03.1998 and the period of 05 years was over on 12.03.2003. Thus, the period of 05 years after passing of the award is already over as on 01.01.2014, i.e. the date on which the Act of 2013 came into force.
Hence, the provisions of Section 24(2) of the Act of 2013 can very well be applicable to the case in hand.
(vi) A bare perusal of provisions of Section 24(2) of the Act of 2013 as well as in the light of various judgments passed by the Apex Court as well as this Court, it is clear that if either of the following two conditions are not complied with, the land acquisition proceedings of the land under the Act of 1894 shall lapse.
(vii) If the award has been passed prior to 05 years or more at 22 W.A. No. 163 of 2016 the time of commencement of new Act and possession of the land has not been taken or if the amount of compensation has not been paid or deposited in the Court, or if both the conditions are not fulfilled, the land acquisition proceedings shall lapse.
(viii) It is also submitted that the notification u/S 4(1) as well as u/S 6 of the Act of 1894 and all further acquisition proceedings are malafide and are tainted by colorable exercise of power. More suitable land previously acquired for the same public purpose is available with the State Government. The same instead of being put to use for the said public purpose has been illegally leased out to some influential farmers and in the name of public purpose, land of respondents had been acquired. Irony is that there exists no public purpose. The Commissioner, Indore Division put deaf ears to the objection filed by the respondents' objection. Even otherwise, the acquisition so done resulted into additional burden of crores of rupees on the exchequer.
(ix) It is further contended that in the present case, even according to the appellant, the award was passed prior to 05 years or more before the commencement of new Act and admittedly, neither the amount of compensation was paid to the land owners nor the same was deposited in the Court in terms of Section 31 of the Act of 1894. Under such circumstances, the land acquisition proceedings were deemed to have lapsed.
(x) Learned counsel also contended that the ground raised u/S 24(2) of the Act of 2013, appellant admitted that the amount of compensation was neither paid nor deposited in the Court in terms of Section 31 of the Act of 1894 because it is not necessary as no reference under Section 18 of the Act of 1894 was filed. However, the aforesaid assertion of appellant is misconceived since for depositing the amount in the Court, there is no requirement of filing any 23 W.A. No. 163 of 2016 application under Section 18 of the Act of 1894.
(xi) Lastly, it is contended by learned counsel for the respondents no.1 to 11 that the sole ground raised in the appeal is that Section 24(2) of the Act has no application to the present case. However, appellant has not stated anything in the memo of appeal as to why Section 24(2) of the Act of 2013 shall not apply to the present case, particularly in view of admission and admitted position that the amount of compensation was neither paid to the land owners nor was ever deposited in the Court in terms of Section 31 of the Act of 1894.
14. Under such circumstances, the learned Single Judge in the light of the judgment in the case of Smt. Shyam Verma and Purushottam Lal(supra) has allowed the writ petition taking into account the factual position that compensation has not been paid to the respondents nor has been deposited in the Court where reference is normally filed and directed to restore the land back to the respondents. The order of learned Single Judge was put to challenge by the appellant in the appeal which was also dismissed and thereafter, matter has travelled upto the Apex Court whereby the Hon'ble Apex Court has remanded the matter back to decide afresh. However, the factual scenario has not changed. Hence, there is no error in the order passed by the learned Single Judge and the writ appeal is liable to be dismissed.
15. Learned counsel for the respondents no.1 to 11 vehemently opposed the I.A. for taking document regarding deposit of compensation on record by submitting that at this belated stage, filing of a letter of Land Acquisition Officer addressed to Executive Engineer regarding deposit of amount of compensation appears to be an after thought as the learned Single Judge as well as the Division Bench of this Court have raised query regarding deposit of amount of 24 W.A. No. 163 of 2016 compensation which remained unanswered throughout the proceedings in writ petition as well as appeal. Now, at this juncture, when the case has been remanded back by the Apex Court to this Court for deciding afresh, mere production of a letter does not change the factual position prevailing in the matter. Hence, the said document be not taken on record.
16. On the other hand, learned counsel for the respondents/State submits that since land had already been acquired by the State and scheme was prepared and approved by the Ministry of Environment & Forests National River Conservation Directorate, New Delhi which is to be implemented by the State Government, therefore the right to allot land to the concerned department vests with the State Government for proper implementation of the said scheme, pursuant to which, the acquired land was allotted to the Indore Municipal Corporation.
17. Heard, learned counsel for the parties and perused the record.
18. Appellants have preferred SLP before the Apex Court challenging the order passed by the Division Bench and the Apex Court has remitted back the matter to this Court to decide the same afresh in accordance with law and on its own merits and in the light of the observations made by this Court in the case of Indore Development Authority(supra).
19. Before proceeding ahead, it would be apt to go through the aspect as regards the land acquisition process deemed to have been lapsed wherein Section 24 of the Act of 2013 plays pivotal role in deciding the issue in hand as well as the relevant excerpts in the case of Indore Development Authority(supra) with regard to Section 24 of the Act of 2013, which are reproduced below for convenience and ready reference:
● SECTION 24 of the ACT of 2013 25 W.A. No. 163 of 2016 "24. Land acquisition process under Act 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,-(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, 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.
● Relevant Excerpts of Indore Development Authority(supra) with regard to Section 24 of the Act of 2013.
366. In view of the aforesaid discussion, we answer the questions as under: 1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of 26 W.A. No. 163 of 2016 commencement of Act of 2013, there is no lapse of proceedings.
Compensation has to be determined under the provisions of Act of 2013. 2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed. 3. The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.
4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894. 5. In case a person has been tendered the compensation as provided under 27 W.A. No. 163 of 2016 Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non- payment or 318 non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013. 6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b). 7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2). 8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land 319 acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition."
20. As per the law laid down by the Apex Court in the case of 28 W.A. No. 163 of 2016 IDA (supra) , the word 'or' in Section 24(2) of the Act of 2013 between possession and compensation has to be read as for declaring any land acquisition proceedings to be lapsed and that before commencement of the Act of 2013, physical possession could not have been taken by the competent authority and no compensation should have been paid, the in such circumstances, only the land acquisition proceeding can be declared as lapsed.
21. To decide the present controversy that whether the land acquisition proceedings have lapsed as per Section 24 of the Act of 2013, two questions needs to be answered which are as follows:
1. Whether physical possession has been obtained by the competent authorities or not?
2. Whether compensation amount as mentioned in the award has ever been paid and tendered to the land owners as per Section 24(2) of the Act of 2013 and Section 31 of the Act of 1894?
22. Answer to Question #1 In the instant case, State Government issued notification for acquisition of 29.768 hectares of land on 23.02.1996 and thereafter, on 03.04.1996, a notification u/S 6 of the Act of 1894 was issued. Respondents i.e. the landowners have filed petition W.P. No. 1446/1996 wherein interim relief was granted by this Court on 30.10.1996 to the extent that proceedings before the Land Acqusition Officer shall continue but possession of land would not be disturbed. On 12.05.1998, W.P. No. 1446/1996 was transferred to the Principal Seat at Jabalpur and it came to be renumbered as W.P. No. 2990/1998. The Land Acquisition Officer passed an award dated 12.09.1998. On 13.11.2009, W.P. No. 2990/1998 was dismissed for want of prosecution and the interim order was also vacated where on 29 W.A. No. 163 of 2016 24.11.2009, notices were issued to the respondents to handover the possession of land. Possession was obtained by the competent authority on 03.12.2009 and the land was handed over to the appellant for setting up of Sewage Treatment Plant. Upon possession, on 05.12.2009, the Tehsildar passed an order of mutation and recorded the name of appellant in the revenue records. On 07.12.2009, the W.P. No. 2990/1998 was restored and order of maintaining status-quo was passed. On 06.12.2010, the petition was transferred to Bench at Indore and the petition was restored to its original number i.e. W.P. No. 1446/1998. On 02.02.2016, writ petition was allowed and learned Single Judge has made the following observations:
"17. The respondent/State shall aslo correct the revenue entries in the revenue record which have been changed on account of award dated 12.09.1998 within a period of 30 days from the date of reciept of certified copy of the order.
21. This Court without adverting into the aforesaid factual position as compensation has not been paid to the petitioner nor has been deposited in the Court where reference is normally filed, is of the opinion that the controversy involved in the present case stands concluded by a judgment delivered in the case of Purushottam Lal (supra) and therefore, this writ petition also stands allowed and the land acquisition proceedings are quashed. The land is restored back to the land owners and if required, respondents may proceed afresh in accordance with law under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and 30 W.A. No. 163 of 2016 Resettlement Act, 2013.
23. Thereafter, the physical possession was restored with the land owners and since then even after continuous litigation before this Court as well as the Apex Court, the land-owners are still in possession of the land in question and they are cultivating it. Therefore, in the considered opinion of this Court, the possession is still lying with the land owner. Hence, it cannot be said that possession has been obtained by the competent authorities.
24. Answer to Question #2 The Apex Court in the case of Indore Development Authority(supra), while drawing a distinction between the two words 'paid' or 'deposit' has held as under:
Distinction between paid/deposit In re: What is the meaning to be given to the word "paid"
used in section 24(2) and "deposited" used in the proviso to section 24(2) 198. Connected with this issue are questions like what is the consequence of payment not being made under section 31(1) and what are the consequences of amount not deposited under section 31(2). The provision of section 24(2) when it provides that compensation has not been paid where award has been made 5 years or more prior to the commencement of the Act of 2013. In contradistinction to that, the proviso uses the expression "an award has been made and compensation in respect of a majority of land holdings has not been 184 deposited in the account of the beneficiaries". We have to find out when an amount is required to be deposited under the Act of 1894 and how the payment is made under the Act of 1894. The provisions of Section 31 of the Act of 1894 are attracted to the interpretation of provisions of section 24(2) 31 W.A. No. 163 of 2016 to find out the meaning of the words 'paid' and 'deposited'. Section 31(1) makes it clear that on passing of award compensation has to be tendered to the beneficiaries and Collector shall pay it to them. The payment is provided only in section 31(1). The expression 'tender' and pay to them in section 31(1) cannot include the term 'deposited.'
199. Section 31 (2) of the Act of 1894 deals with deposit in case Collector is 'prevented' from making payment by one or more contingencies mentioned in section 31(2). The deposit follows if the Collector is prevented from making payment. In case Collector is prevented from making payment due to contingencies such refusal to receive the amount, or if there be no person competent to alienate the land, or if there is a dispute as to the title to receive the compensation or as to the apportionment of it, he (i.e. the Collector) may withhold it or in case there is dispute as to apportionment, he may ask the parties to get a decision from the Reference Court i.e., civil court and to clear the title. In such exigencies, the amount of compensation is required to be deposited in the court to which reference would be submitted under section 18. Section 31(2) requires deposit in case of reference under 185 section 18 and not the reference, which may be sought under section 30 or section 28A of the Act of 1894. 200. Section 24(2) deals with the expression where compensation has not been paid. It would mean that it has not been tendered for payment under section 31(1). Though the word 'paid' amounts to a completed event however once payment of compensation has been offered/tendered under section 31(1), the acquiring authority cannot be penalized for non- payment as the amount has remained unpaid due to refusal 32 W.A. No. 163 of 2016 to accept, by the landowner and Collector is prevented from making the payment. Thus, the word 'paid' used in section 24(2) cannot be said to include within its ken 'deposit' under section 31(2). For that special provision has been carved out in the proviso to section 24(2), which deals with the amount to be deposited in the account of beneficiaries. Two different expressions have been used in section 24. In the main part of section 24, the word 'paid' and in its proviso 'deposited' have been used. 201. The consequence of non-deposit of the amount has been dealt with in section 34 of the Act of 1894. As per section 24(2), if the amount has not been paid nor possession has been taken, it provides for lapse. Whereas the proviso indicates amount has not been deposited with respect to a majority of land holdings in a case initiated under the Act of 1894 for 5 years or more. The period of five years need not have been 186 specified in the proviso as it is part of section 24(2) and has to be read with it, particularly in view of the colon and placement by the legislature as held above. Two different consequences of non-deposit of compensation are:
(i) higher compensation in a case where possession has been taken, payment has been made to some and amount has not been deposited with respect to majority of the holdings, (ii) in case there is no lapse, the beneficiaries would be entitled to interest as envisaged under section 34 from the date of taking possession at the rate of 9% per annum for the first year and after that @ 15% per annum.
202. The word "paid" has been defined in the Oxford Dictionary to mean thus: "paid past and past participle of pay"; Give a sum of money thus owned." Cambridge English Dictionary, defines "paid" as follows: "being 33 W.A. No. 163 of 2016 given money for something." P. Ramanatha Aiyar's Advance Law Lexicon, 3rd Edition, 2005, uses the following definition of "paid": "applied; settled:
satisfied." 203. The word "paid" in Section 31(1) to the landowner cannot include in its ambit the expression "deposited" in court. Deposit cannot be said to be payment made to landowners. Deposit is on being prevented from payment. However, in case there is a tender of the amount that is to mean amount is made available to the landowner that would be a discharge of the obligation to make the payment and in that event such 187 a person cannot be penalised for the default in making the payment. In default to deposit in court, the liability is to make the payment of interest under Section 34 of Act of 1894. Sections 32 and 33 (which had been relied upon by the landowners' counsel to say that valuable rights inhere, in the event of deposit with court, thus making deposit under Section 31 mandatory) provide for investing amounts in the Government securities, or seeking alternative lands, in lieu of compensation, etc. Such deposits, cannot fetch higher interest than the15 per cent contemplated under Section 34, which is pari materia to Section 80 of Act of 2013. Section 34 is pari materia to section 80 of Act of 2013 in which also the similar rate of interest has been specified. Even if the amount is not deposited in Reference Court nor with the treasury as against the name of the person interested who is entitled to receive it, if Collector has been prevented to make the payment due to exigencies provided in Section 31(2), interest to be paid. However, in case the deposit is made without tendering it to the person interested, the liability to pay the interest under section 34, shall continue. Even 34 W.A. No. 163 of 2016 assuming deposit in the Reference Court is taken to be mandatory, in that case too interest has to follow as specified in section 34. However, acquisition proceeding cannot lapse due to non-deposit. 204. The concept of "deposit" is different and quite apart from the word "paid", due to which, lapse is provided in Section 24 of Act of 2013. In the case of non-deposit for the majority of landholdings, higher 188 compensation would follow as such word "paid" cannot include in its ambit word "deposited". To hold otherwise would be contrary to provisions contained in Section 24(2) and its proviso carrying different consequences. It is provided in Section 34 of Act of 1894, in case payment has not been tendered or paid, nor deposited the interest has to be paid as specified therein. In Section 24(2) also lapse is provided in case amount has not been paid and possession has not been taken. 205. In our considered opinion, there is a breach of obligation to deposit even if it is taken that amount to be deposited in the reference court in exigencies being prevented from payment as provided in Section 31(2). The default will not have the effect of reopening the concluded proceedings. The legal position and consequence which prevailed from 1893 till 2013 on failure to deposit was only the liability for interest and all those transactions were never sought to be invalidated by the provisions contained in Section 24. It is only in the case where in a pending proceeding for a period of five years or more, the steps have not been taken for taking possession and for payment of compensation, then there is a lapse under section 24(2).
In case amount has not been deposited with respect to majority of land holdings, higher compensation has to 35 W.A. No. 163 of 2016 follow. Both lapse and higher compensation are qualified with the condition of period of 5 years or more. 206. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been 189 tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. In case a person has not accepted the amount wants to take the advantage of non-payment, though the amount has remained due to his own act. It is not open to him to contend that amount has not been paid to him, as such, there should be lapse of the proceedings. Even in a case when offer for payment has been made but not deposited, liability to pay amount along with interest subsist and if not deposited for majority of holding, for that adequate provisions have been given in the proviso also to Section 24(2). The scheme of the Act of 2013 in Sections 77 and 80 is also the same as that provided in Sections 31 and 34 of the Act of 1894. 207. It was urged that landowners can seek investment in an interest bearing account, there is no doubt about that investment can be sought from the court under Sections 32 and 33 of Act of 1894, but interest in Government securities is not more than what is provided in section 34 at the rate of 9 percent from the date of taking possession for one year and thereafter, at the rate of 15 percent. We take judicial notice of the fact in no other Government security rate of interest is higher on the amount being invested under sections 32 and 33 of the Act of 1894. Higher rate of interest is available under section 34 to the advantage of landowners. It was submitted that in case the amount is deposited in the court, it is on behalf of the beneficiary. The submission overlooks the form in 36 W.A. No. 163 of 2016 which it used to be deposited in the treasury too, that 190 amount is also credited in the treasury payable to the beneficiary specified in his name with land details, date of award, etc. 208. There is another reason why this court holds that such an interpretation is reasonable and in tune with Parliamentary intent. Under the old regime, it was open to the Collector to fix a convenient date or dates for announcement of award, and tender payment. In the event of refusal by the landowner to receive, or in other cases, such as absence of the true owner, or in case of dispute as to who was to receive it, no doubt, the statute provided that the amount was to be deposited with the court: as it does today, under Section 77. Yet, neither during the time when the Act of 1894 was in operation, nor under the Act of 2013, the entire acquisition does not lapse for non-deposit of the compensation amount in court. This is a significant aspect which none of the previous decisions have noticed. Thus, it would be incorrect to imply that failure to deposit compensation [in court, under Section 31 (2)] would entail lapse, if the amounts have not been paid for five years or more prior to the coming into force of the Act of 2013. Such an interpretation would lead to retrospective operation, of a provision, and the nullification of acquisition proceedings, long completed, by imposition of a norm or standard, and its application for a time when it did not exist. 209. If the expression "deposited" is held to be included in the expression "paid" used in Section 24(2) of the Act of 2013, inconsistency 191 and repugnancy would be caused as between the proviso and the main sub-section, which has to be avoided and the non-compliance of the provisions of Section 31(2) is not fatal. Even if the amount 37 W.A. No. 163 of 2016 has not been deposited, higher compensation has to follow in the exigency proviso to Section 24(2). 210. In Black's Law Dictionary, the word "tender" has been defined to mean thus: "tender, n. (16c) 1. A valid and sufficient offer of performance; specific, an unconditional offer of money or performance to satisfy a debt or obligation a tender of delivery. The tender may save the tendering party from a penalty for non-payment or non-performance or may, if the other party unjustifiably refuses the tender, place the other party in default. Cf. OFFER OR PERFORMANCE;
CONSIGNATION." 211. It is apparent that "tender" of the amount saves the party tendering it from the consequence to be visited on non-payment of the amount. The obligation to make the payment has been considered in various other laws and decisions. When obligation to payment is fulfilled as to the scheme in the context of a particular act, for that purpose, decisions under various other laws are relevant and cannot be said to be irrelevant.
215. Two different expressions have been used in Section 24(2). The expression "paid" has been used in Section 24(2) and whereas in the proviso "deposited" has been used. "Paid" cannot include "deposit", or else Parliament would have used different expressions in the main sub- 143 (1968) 1 PLJR 94 144 (1969) 2 SCC 316 194 section and its proviso, if the meaning were to be the same. The Court cannot add or subtract any word in the statute and has to give plain and literal meaning and when compensation has not been paid under Section 24(2), it cannot mean compensation has not been deposited as used in the proviso. While interpreting the statutory provisions, addition or subtraction in the legislation is not permissible.
38 W.A. No. 163 of 2016It is not open to the court to either add or subtract a word. There cannot be any departure from the words of law, as observed in legal maxim "A Verbis Legis Non Est Recedendum". In Principles of Statutory Interpretation (14th Edition) by Justice G.P. Singh, plethora of decisions have been referred. There is a conscious omission of the word "deposit" in Section 24(2), which has been used in the proviso. Parliament cannot be said to have used the different words carrying the same meaning in the same provision, whereas words "paid" and "deposited" carry a totally different meaning. Payment is actually made to the landowner and deposit is made in the court, that is not the payment made to the landowner. It may be discharge of liability of payment of interest and not more than that. Applying the rule of literal construction also natural, ordinary and popular meaning of the words "paid" and "deposited" do not carry the same meaning; the natural and grammatical meaning has to be given to them, as observed in Principles of Statutory Interpretation by Justice G.P. Singh (at page 91) thus: "... Natural and grammatical meaning. The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or 195 unless there is something in the context, or in the object of the statute to suggest the contrary." "The true way", according to LORD BROUGHAM is, "to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those Words is, either by the preamble or by the context of the words in question, 39 W.A. No. 163 of 2016 controlled or alter "; and in the words of VISCOUNT HALDANE, L.C., if the language used "has a natural meaning we cannot depart from that meaning unless reading the statute as a whole, the context directs us to do so. In an oft-quoted passage, LORD WENSLEYDALE stated the Rule thus: "In construing wills and indeed statutes and all written instruments, the grammatical and ordinary sense of the word is adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity, and inconsistency, but no further". And stated LORD ATKINSON: "In the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense". 28 VISCOUNT SIMON, L.C., said: "The golden Rule is that the words of a statute must prima facie be given their ordinary meaning". Natural and ordinary meaning of words should not be departed from "unless it can be shown that the legal context in which the words are used requires a different meaning". Such a meaning cannot be departed from by the judges "in the light of their own views as to policy" although they can "adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy". For a modern statement of the rule, one may refer 40 W.A. No. 163 of 2016 to the speech of LORD SIMON OF GLAISDALE in a case where he said: "Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. The drafting of statutes, so important to a people who hope to live under the Rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule' of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further". The Rules stated above have been quoted with approval by the Supreme Court......." (emphasis supplied)
25. To deal with the issue of compensation, the first and foremost thing is issuance of notice under Section 12 of the Act of 1894 which is mandatory since Section 12(2) of the Act of 1894 requires the Collector to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.
26. Object of Section 12 of the Act of 1894 is to provide information to the landowners as to which parcel of land is acquired so that boundaries of land can be ascertained and secondly, to inform the amount of compensation so that if the landowners have any objection, they can file reference.
27. In the instant case, though notice u/S 12 of the Act of 1894 was issued, but not duly served upon the landowners, therefore no question for payment of compensation arises.
41 W.A. No. 163 of 201628. As soon as the award was passed, the amount of Rs. 92 lakhs out of the compensation award of Rs. 1,13,35,765/- was deposited by the M.P. Pollution Control Board, which was supposed to be paid to the landowners and subsequently, on 29.04.1999, the remaining amount of Rs. 21,35,765/- was also deposited with the Collector, but upon perusal of the record, no such document has been filed to ascertain that efforts were made by the competent authority to pay the amount of compensation to the landowners. Since no compensation was paid to the landowners, the compensation amount is still lying in the treasury with Collector, Land Acquisition department. It was contended that the land owners refused to accept the amount of compensation, but there is no such documentary evidence available on the record.
29. During the course of hearing, this Court has raised query as regards any documentary evidence reflecting that compensation was paid to the landowners which was later on refused by them.
30. To satisfy the query raised by this Court, I.A. No. 9196/2023 has been filed by the appellants alongwith a letter dated 11.12.2023 of Officer Incharge, Land Acquisition Cell, Collectorate, Indore stating that an amount of Rs. 1,13,35,765/- was deposited towards compensation and is lying in the treasury, but on perusal of the said letter, it is not clear as to whether the said amount has ever been 'paid' or 'tendered' to the landowners.
31. Under such circumstances, filing of a letter at this stage is an empty formality to merely answer the query raised by this Court.
32. Accordingly, I.A. No. 9196/2023 is hereby rejected.
33. In the present case, it is undisputed that the amount of compensation was deposited and kept by the Collector in the treasury. But in the old regime, as per Section 31 of the Act of 1894, the 42 W.A. No. 163 of 2016 Collector was duty bound to deposit the amount of compensation in the Court to which a reference u/S 18 of the Act of 1894 would be submitted once the land owners have refused to receive the compensation. However, in the present case, the appellant failed to show that the compensation was paid to the landowners and they refused to receive the same. Therefore, the amount of compensation is still lying with the appellants and was never paid to the respondents/ landowners.
34. This Court has answered both the questions that the possession of the land in question is still with the respondents/landowners and the appellant had failed to pay the amount of compensation to the respondents/landowners. Therefore, as per the provisions of Section 24(2) of the Act of 2013 as well as applying the law laid down by the Apex Court in the case of Indore Development Authority(supra), the acquisition proceedings have been lapsed. Hence, the learned Single Judge has not committed any error while allowing the writ petition.
35. Accordingly, the present writ appeal fails and is hereby dismissed. No order as to cost.
(S.A. Dharmadhikari) (Pranay Verma)
Judge Judge
sh/-
SEHAR
HASEEN
Digitally signed by SEHAR HASEEN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=BENCH AT INDORE, 2.5.4.20=900ec6fc757798eaeb3df7a32860bd3298415a4 d1c2d91436213f2568c8f27da, postalCode=452001, st=Madhya Pradesh, serialNumber=E7DBBA955B262C04B8413251CE7FB6F0B 7DBA610C57F1559C08BF6C6F5DD40D4, cn=SEHAR HASEEN Date: 2024.04.03 15:55:35 +05'30'