Bhusai vs State of U.P.

@DELETEUPPERDATA

We have heard Sri Kshemendra Shukla learned counsel for the petitioner learned Standing Counsel for the State respondents and Sri Shobhit Mohan Shukla for the respondent no. 4 Lucknow Development Authority. Affidavits have been exchanged between the parties and with their consent this writ petition is being decided finally today itself.

This writ petition has been filed for quashing the Notification no. 2992/9-Aa-3-2000-74-LA/96 dated 11.09.2000 issued under Section 4/ 17 of the Land Acquisition Act 1894 (Annexure 1) as also Notification no. 657-9-Aa-3-200-74-LA-96 dated 16.02.2001 issued under Section 6/ 17 of the Land Acquisition Act 1894 (Annexure 2) (hereinafter referred to as the Old Act) whereby the land bearing Khasra Plot no. 423 area 1 Bigha 16 Biswa 1 Biswansi situated in Village Malesemau, Pargana, Tehsil and District Lucknow was acquired for the purpose of extension of Amar Shaheed Path, Gomti Nagar, Lucknow.

A further prayer has been made to declare the land acquisition proceedings with respect to the land has lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the 2013 Act). A further prayer has been made to direct the respondents to release the plot of the petitioner and not interfere in his peaceful possession over the same.

Learned counsel for the petitioner has submitted that the notification under Section 4 read with Section 17 of the Old Act was issued on 11.09.2000 and the notification under Section 6 read with Section 17 of the Old Act was issued on 16.02.2001. Although the respondents claim that they took possession of the land in question on 13.02.2003 the petitioner disputes such averment and claims to be in actual physical possession of the land and construction existing therein.

He states that the award was passed on 21.10.2008. According to him no compensation was given to the petitioner and therefore in light of Section 24(2) of the 2013 Act the proceedings of land acquisition under the old Act stands lapsed.

In the counter affidavit filed by the respondent no. 4 Lucknow Development Authority such circumstances except with respect to the possession, have been accepted and it has been stated that no compensation has been paid to the petitioner although it has been deposited with the Government.

Learned counsel for the respondent no. 4 has submitted that since the Lal Dora Scheme came into existence therefore they were considering exemption of the constructed portion and therefore the compensation was not paid to the petitioner.

We have considered the submission of parties and gone through the record. The fact that the notification under Section 4 and 6 read with Section 17 of the Land Acquisition Act 1894 were issued on the dates mentioned herein is not disputed. The fact that the award was given on 21.10.2008 is also not in dispute. The fact that compensation has not been paid to the petitioner is also not in dispute.

Section 24 of the Act of 2013 is quoted hereunder:-

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 II 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/oil 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."

The said provision was considered by the Hon''ble Apex Court in the case of Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and Others, . The reported judgment has been filed by the petitioner as annexure 5 to this writ petition.

A perusal of the judgment indicates that under identical and similar circumstance the Hon''ble Supreme Court held that land acquisition proceedings taken up under the old Act shall be deemed to have lapsed under Section 24(2) of the 2013 Act.

The 2013 Act came into force w.e.f. 01.01.2014 and the award in the present case was given on 21.10.2008. Clearly the period of five years prior to commencement of 2013 Act expired on 21.10.2013 and hence the award dated 21.10.2008 was made under the old Act more than five years prior to the commencement of 2013 Act. The compensation is admitted not to have been paid. Paragraph 19, 20 and 21 of the judgment in the case of Pune Municipal Corporation (supra) is quoted here under:-

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 Ivo Agnelo Santimano Fernandes and Others Vs. Government of Goa and Another, , relying upon the earlier decision in Prem Nath Kapur and Another Vs. National Fertilizers Corpn. of India Ltd. and Others, ., has held that the deposit of the amount of the compensation in the state 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.

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 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 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 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."

The matter was also considered by the State Government and by the Government Order dated 28.08.2014 it was provided that under such circumstances where the award was made more than five years prior to 01.01.2014 and compensation had not been paid the land acquisition proceedings under Section 4 and 6 of the 1894 Act would stand lapsed. The said Government Order dated 28.08.2014 has been brought on record by means of a supplementary affidavit dated 29.04.2014 as annexure SA-1 herein. The Government Order dated 28.08.2014 as annexed along with supplementary affidavit is quoted here under:-

In view of the aforesaid admitted circumstances that compensation has not been paid and that the award under the 1894 Act was made more than five years prior to enforcement of 2013 Act we do not find any difficulty in setting aside the impugned Notification no. 2992/9-Aa-3-2000-74-LA/96 dated 11.09.2000 issued under Section 4/ 17 of the Land Acquisition Act 1894 as also Notification no. 657-9-Aa-3-200-74-LA-96 dated 16.02.2001 issued under Section 6/ 17 of the Land Acquisition Act 1894 with respect to Khasra plot no. 423 area 1 Bigha 16 Biswa 1 Biswansi situated in Village Malesemau, Pargana, Tehsil and District Lucknow.

In view of the aforesaid circumstances the impugned notification dated 11.09.2000 under Section 4 of the Land Acquisition Act 1894 and notification dated 16.02.2001 under Section 6 of the Land Acquisition Act 1894 insofar as the petitioners plot Khasra no. 423 area 1 Bigha 16 Biswa 1 Biswansi situated in Village Malesemau, Pargana, Tehsil and District Lucknow is concerned are set aside. The writ petition is allowed.

No order is passed as to costs.