Budru Kashyap Vs State of Chhattisgarh & others ,Yogendra Kumar Sahu Vs State of Chhattisgarh & others ,Smt. Madhukala Jha Vs State of Chhattisgarh & others ,Father Thedor Toppo Vs State of Chhattisgarh & others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 3908 of 2008 ,3693 of 2007,4089 of 2007 ,4608 of 2008 of 2015, Judgment Date: Feb 09, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
WP(C) No.3908 of 2008
PETITIONER Budru Kashyap
-Versus-
RESPONDENTS: State of Chhattisgarh & others
WP(C) No.3693 of 2007
PETITIONER Yogendra Kumar Sahu
-Versus-
RESPONDENTS: State of Chhattisgarh & others
WP(C) No.4089 of 2007
PETITIONER Smt. Madhukala Jha
-Versus-
RESPONDENTS: State of Chhattisgarh & others
AND
WP(C) No.4608 of 2008
PETITIONER Father Thedor Toppo
-Versus-
RESPONDENTS: State of Chhattisgarh & others
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Present
Shri B.P. Sharma, Shri Manoj Paranjpe and Shri Harshal Chauhan, counsel
for the respective petitioners.
Shri Arun Sao, Deputy Advocate General for the State.
Shri Jitendra Pali, counsel for respondent No.4/Housing Board.
Single Bench: Hon’ble Shri Prashant Kumar Mishra, J.
ORAL ORDER
(9-2-2015)
1. WP(C) Nos.3908/2008, 4089/2007 and 4608/2008 are arising out of Land
Acquisition Case No.10/A-82/04-05/04/2005 (Village Aghanpur) whereas
WP(C) No.3693/2007 is arising out of Land Acquisition Case No.11/A-
82/2004-05/2005 (Village Hatkachora).
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2. In the first batch of three writ petitions, challenge has been thrown to the
legality and validity of the Land Acquisition Proceeding including the award
passed in Land Acquisition Case No.10/A-82/04-05/04/2005 on 27.1.2007
which was approved by the State Government on 10.5.2007 whereas in the
latter writ petition, challenge has been thrown to the legality and validity of
the Land Acquisition Proceeding including the award passed in Land
Acquisition Case No.11/A-82/2004-05/2005 on 21.11.2006 which was
approved by the State Government on 14.6.2007.
3. Initially challenge is on the ground that notification under Sections 4 & 6 are
vague; principles of natural justice have not been followed; objection to the
acquisition has illegally been rejected by treating the same as time barred;
the subject land is not suitable for the purpose for which it is acquired;
nearby available Government land has not been acquired and the private
persons' land is acquired which is malafide.
4. The proceedings have been drawn under the Land Acquisition Act, 1894
(hereinafter referred to as 'the old Act'). In all the writ petitions, interim
orders have been passed directing the parties to maintain status quo with
respect to land of the petitioners.
5. During the pendency of the writ petitions, the Central Government has
enacted the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013)
(hereinafter referred to as 'the new Act') which has been made applicable
with effect from 1.1.2014.
6. Before proceeding to argue other points urged in the writ petitions, learned
counsel for the petitioners would raise a purely legal submission to the
effect that in view of the provisions contained in Section 24 (2) of the new
Act and neither possession has been obtained from the petitioners nor
compensation has been paid, the land acquisition proceeding would lapse
and the award cannot be acted upon. They would refer to the law laid down
by the Supreme Court in Ram Kishan & others Vs. State of Haryana &
others1.
7. Per contra, Shri Sao, learned Deputy Advocate General and Shri Pali,
learned counsel for the respondent/Housing Board, would submit that
1 2014 AIR SCW 6929
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although it is true that the Housing Board has not obtained possession of
the lands, but the same happened because of the interim orders passed by
this Court, therefore, Section 24(2) of the new Act has no application. They
would also submit that the Housing Board having deposited the amount of
compensation in the treasury, the amount should be deemed to have been
paid to the petitioners and the award would not lapse.
8. Shri Sao would also submit that the writ petitions have been preferred after
passing of the award, therefore, the writ petitions suffer from delay and
laches and irrespective of the fact whether the award would lapse or not,
the writ petitions deserve to be dismissed on this count alone.
9. In order to dwell on the issue raised before this Court regarding application
of Section 24 of the new Act, it would be apt to refer to the said provision,
which is reproduced hereinbelow:-
“24. Land acquisition process under Act No.1 of
1894 shall be deemed to have lapsed in certain
cases.- (1) Notwithstanding anything contained in
this Act, in any case of land acquisition proceedings
initiated under the Land Acquisition Act, 1894 (1 of
1894),-
(a) where no award under section 11 of the said Land
Acquisition Act has been made, then, all provisions
of this Act relating to the determination of
compensation shall apply; or
(b) where an award under said section 11 has been
made, then such proceedings shall continue under
the provisions of the said Land Acquisition Act, as if
the said Act has not been repealed.
(2) Notwithstanding anything contained in subsection
(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
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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.”
10.Sub-section (2) of Section 24 of the new Act, quoted above, makes it
explicit that where an award under the old Act has been made five years or
more, prior to the commencement of the new 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 contained in
the new Act.
11. In the case at hand, Shri Pali, on instructions, would submit that because of
the interim orders passed by this Court directing maintenance of status quo
pertaining to the subject land, the Housing Board has not obtained
possession of the land. There is also no dispute as to the position that after
passing of the award, the Housing Board has deposited the amount in the
treasury but the petitioners have not obtained payment of compensation.
Thus, they have not yet been paid compensation.
12.The first judgment of the Supreme Court interpreting the rigor of Section
24(2) of the new Act has been reported in (2014) 3 Supreme Court Cases
183 {Pune Municipal Corporation and another Vs. Harakchand
Misirimal Solanki and others}. In the said matter of Pune Municipal
Corporation (Supra) also, the award amount was deposited in the treasury
but the land owners had not received compensation. Referring to the
provisions contained in Section 31 of the old Act which provided for
payment of compensation or deposit of same in the Court and considering
the same alongside Section 24(2) of the new Act, the Supreme Court
concluded in paragraphs-18, 19 & 20 thus:-
“18. The 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 Ahmad2) that where a
power is given to do a certain thing in a certain way, the
2 AIR 1936 PC 253 (2)
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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
31-1-2008. 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 3 , relying upon the earlier decision in
Prem Nath Kapur 4 , 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 under
Section 24(2) of the 2013 Act.”
(Emphasis supplied)
13.In Pune Municipal Corporation (Supra), the beneficiaries of the land
acquisition proceedings also tried to take shelter under the provisions
contained in Section 114 (2) of the new Act to argue that the proceedings
under the old Act wherein an award has been passed are saved. Repelling
the said contention, the Supreme Court held in paragraph-21 thus:-
“21. The argument on behalf of the Corporation that the
subject land acquisition proceedings have been concluded
in all respects under the 1894 Act and that they are not
affected at all in view of Section 114(2) of the 2013 Act,
has no merit at all, and is noted to be rejected. Section
114(1) of the 2013 Act repeals the 1894 Act. Sub-section
(2) of Section 114, however, makes Section 6 of the
General Clauses Act, 1897 applicable with regard to the
effect of repeal but this is subject to the provisions in the
2013 Act. Under Section 24(2) land acquisition
3 (2011) 11 SCC 506
4 (1996) 2 SCC 71
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proceedings initiated under the 1894 Act, by legal fiction,
are deemed to have lapsed where award has been made
five years or more prior to the commencement of the 2013
Act and possession of the land is not taken or
compensation has not been paid. The legal fiction under
Section 24(2) comes into operation as soon as conditions
stated therein are satisfied. The applicability of Section 6
of the General Clauses Act being subject to Section 24(2),
there is no merit in the contention of the Corporation.”
14.The judgment in the matter of Pune Municipal Corporation (Supra) has
been relied by the Supreme Court in its subsequent decision in the matter
of Union of India and others Vs. Shiv Raj and others5.
15.In 2 subsequent decisions in the matters of Bimla Devi and others Vs.
State of Haryana and others6 and Bharat Kumar Vs. State of Haryana
and another7, the Supreme Court quashed the award passed under the old
Act on the ground that neither compensation was paid nor physical
possession of the land was taken by the Government.
16.In a more recent judgment in the matter of Ram Kishan & others (Supra),
the Supreme Court has taken note of its earlier decisions to conclude in
paragraphs-12 & 13 thus:-
“12. By considering the aforesaid decisions of this
Court and the facts and circumstances of the present
case on hand, we are of the view that physical
possession of the land belonging to the appellants
has not been taken by the respondents and more
than five years have elapsed since the making of the
award on 14.01.2006 when the Resettlement Act,
2013 came into force on 01.01.2014. Therefore, the
conditions stated in Section 24(2) of the Act of 2013
are fulfilled for allowing the plea of the appellants that
the land acquisition proceedings be deemed to have
elapsed. The said legal principle laid down by this
Court in the case of Pune Municipal Corporation and
other cases referred to supra with regard to
interpretation of Section 24(2) of the Act of 2013 are
applicable with all fours to the fact situation on hand
with respect to the land covered in this appeal and for
granting relief as prayed by the appellants in this
application.
13. In view of the aforesaid decisions of this Court
referred to supra, and the findings and reasons
recorded by us the application filed under Section
5 (2014) 6 SCC 564
6 (2014) 6 SCC 583
7 (2014) 6 SCC 586
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24(2) of the Act of 2013 is allowed. Consequently,
having regard to the facts of this case, this appeal is
allowed by quashing the acquisition proceedings in
so far as the land of the applicants/appellant Nos. 24-
28 are concerned. There shall be no order as to
costs.”
(Emphasis supplied)
17.Shri Sao, learned Deputy Advocate General would also argue that the writ
petitions suffer from delay and laches because the writ petitions have been
presented after passing of the award.
18.In the matter of Prahlad Singh and others Vs. Union of India and
others8, it has been observed that in cases where the writ petition has been
preferred after passing of the award and obtaining possession by the
Government, it would suffer from delay and laches.
19.However, in the present case, admittedly, possession has not been taken
from the petitioners. Thus, the writ petitions do not suffer from delay and
laches.
20.For the aforestated reasons, all the writ petitions are allowed. In view of the
provisions contained in Section 24(2) of the new Act and since neither
possession has been obtained from the petitioners nor compensation has
been paid to them, the land acquisition proceedings have lapsed. The
respondents may proceed to re-acquire the land as provided under Section
24(2) of the new Act, in accordance with law.
J U D G E
Barve
8 (2011) 5 SCC 386
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HEADLINES
WP(C) No.3908 of 2008 & other connected matters
Land Acq. award more than 5 years back under old Act, but neither possession
taken nor compensation paid. Proceeding lapsed u/s 24(2) of new Act.
147